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Is There Any Alternative To Going To Trial?

Overview

Most cases settle. The amount of settlement, however, is often dependent upon how prepared and willing your attorney is to go to trial. If the insurance company or defense attorney believes that your attorney is only looking for a settlement and is not able or willing to go to trial, any offer they make for settlement will not reflect the true value of your case.

A settlement can be reached at any stage of the case. Cases settle before a lawsuit is filed, during litigation, during trial, and even after trial.

An attorney must never settle a client's case without the client's express approval. There are many ways in which to try to effect a settlement once the client has given approval. To understand the factors that go into determining what a fair settlement is, go to What is My Case Worth?

Demand Package

The attorney will obtain the necessary information to prepare a demand package which is served on the insurance company or the defense attorney. This demand package sets forth the theories of liability, the evidence supporting liability, a description of the injuries, the effect of the injuries on the client and calculations of both the economic and non-economic damages. In the demand package, the attorney will submit medical reports and, on occasion, declarations from eye witnesses and reports from other experts. The attorneys and often the insurance adjuster will discuss the case in person or over the phone to try to reach a settlement.

Many times the insurance company is not prepared or willing to offer a fair settlement if a lawsuit has not been filed. There are three formal methods in which trial can be avoided after a lawsuit has been filed. These methods are mediation; mandatory settlement conference; and binding arbitration.

Mediation

A mediator is a retired judge or a professional trained in the art of mediation. The parties, their attorneys, and an insurance adjuster, will meet at the mediator's office and discuss the merits of the case. It is the mediator's role to evaluate the strengths and weaknesses of each side's evidence and try to get the parties to reach an agreement on a settlement amount. To learn about evidence, go to What is Evidence? The length of mediation varies depending upon the case and the willingness of the parties and their attorneys to be involved in the process. Sometimes mediation can take days before a resolution is reached.

Mandatory Settlement Conference

Some courts require that the parties attend a mandatory settlement conference before a sitting (not retired) judge. It is mandatory that the parties and their attorneys meet; it is not mandatory that they actually reach a settlement. The settlement conference is similar to a mediation, but the judge usually has less time to try to work out a settlement. A mandatory settlement conference is held shortly before trial and the parties and their attorneys should have a good understanding of the strengths and weaknesses of their cases. Because the mandatory settlement conference is held shortly before the scheduled trial date, the plaintiff's demands and the defendant's offers often become more reasonable.

Arbitration

Occasionally, the parties agree to waive a jury or judge trial and to have the matter decided by way of a binding arbitration before a retired judge. A binding arbitration is similar to a trial, but it is less formal and quicker. It is still necessary to prepare the case as though it were actually on trial. This often involves the preparation of demonstrative evidence to help the arbitrator make the correct decision. To learn more about this form of evidence go to What is Demonstrative Evidence?

Conclusion

It takes experience to know when is the best time to attempt settlement and which is the best approach to take. However, it is always the client who has the final word as to whether or not to settle. It is the attorney's job to explain the pros and cons of going to trial versus accepting a settlement. To learn more about trial go to What Happens Before, During and After Trial?

Cheong, Denove, Rowell & Bennett has the extensive resources to handle the most complex legal matters, yet is small enough to offer individualized service to our clients. At Cheong, Denove, Rowell & Bennett we believe the more you know, the better choice you will make. Contact Us

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