A Practical Look at Settlement vs Trial After Negotiating a Personal Injury Claim

Although you may not have to go to court to obtain compensation for a personal injury, the assistance of a personal injury claims lawyer is still necessary to file, organize and successfully conclude the lawsuit. Personal injury compensation claims mostly involve the defendant's insurance company and your lawyer arguing about the amount of compensation deserved by you, the victim. Liability issues will continually be questioned by the defendant's insurance company lawyers, which is why your lawyer requires a tremendous amount of paperwork in order to prove your case, paperwork that your attorney's law firm aides should be experts at retrieving, interpreting and implementing in personal injury claims cases.

What is a Personal Injury Claim Settlement?

Negotiating a personal injury claim settlement is essentially bargaining with the defendant for the purpose of ending a claim as quickly and without the stress of a trial. While you know exactly how much you want in damages, the defendant in your case (probably an insurance company) knows how much he is willing to pay--and not a bit more! So you, your personal injury attorney and the defendant throw compensation amounts at each other to test the other's willingness to settle the claim without going to trial.

What usually happens in a settlement is this: first, your attorney will send the defendant a demand letter stating what you want for your pain, suffering and/or damages. Next, the defendant will counter your demand letter with a demand letter of his own. In a defendant's demand letter, you will typically find liability questions, outrage at asking for too much in compensation and indignation at medical bills the defendant will claim were unnecessary.

Of course, your attorney will respond to these arguments and possibly (but not always) reduce your claim amount ever so slightly to test the defendant's resolve. Naturally, you will receive a counter offer from the defendant's lawyer that is lower than the one your lawyer just sent. Or, there is always the possibility the defendant may realize that the previous offer is probably the best offer he'll receive from your attorney and accept it without protest.

One more thing--how satisfied you are with your settlement (after several weeks or months of playing strategy and bluff games) depends heavily on how well your attorney is prepared to address the defendant's demand letters and counter offer.

What Happens During a Personal Injury Trial?

Trials can be lengthy, complicated and stressful. However, personal injury trials involving compensation for pain and suffering may also be much more lucrative than settlements--but only if your attorney can prove the defendant is guilty of causing your personal injury.

If your lawsuit goes to trial, you could receive more than what you originally asked for in compensation by the court. Then again, if the defendant is found not guilty, you could receive nothing from your efforts--except a migraine.

In a personal injury trial, a jury or judge will weigh the evidence presented by your attorney and the defendant's attorney and determine whether the defendant is guilty by a preponderance of the evidence. If the defendant is found guilty, then they will be held legally responsible for any injuries you sustained as a result of their negligence.

So Trial, Settlement or...?

Although personal injury trials are considered an extremely "high-profile" aspect of the personal injury claim process and attractive because they may lead to substantial compensation, most personal injury claims are resolved before going to trial. Also, instead of a trial or settlement, personal injury victims and their attorneys could also elect to engage in alternative dispute resolutions such as arbitration and mediation. Or, in a worst case scenario for plaintiffs in a personal injury claims case, dismissal of the claim by the court for lack of evidence.

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