A “settlement” is a term of art that refers to a formal and final resolution of an actual controversy between two or more parties without judicial intervention through a hearing or trial. While this may sound incredibly complicated, the reality is that settlements are significantly less complicated that the alternative of a lawsuit and legal proceedings.
Settlements are typically considered voluntary, in that the parties mutually agree to resolve a dispute out of court. While a settlement will often involve the defendant agreeing to pay a defined sum of money to the plaintiff, the plaintiff will also be agreeing to sign a release of liability in favor of the defendant. It is worth noting that settlements can happen at any time; however, timing is still very important to the both the defendant and the plaintiff. Regardless, both parties to a settlement will naturally seek to reach a settlement that they regard as fair and reasonable in light of the facts and circumstances as they understand them.
A significant majority of compensable personal injury claims and cases settle out of court, and there are several good reasons for this fact. However, the basic rationale for why most personal injury claims settle out of court can be reduced to the fact that settlements are faster than trials, less expensive and significantly less risky. Let’s explore this a little further:
If you have been injured in a North Carolina car accident, you have the right to seek a trial by a jury of your peers. Most people acknowledge and understand how complicated trials and court proceedings can be, so the typical person will hire an attorney on a contingency fee. Naturally, there are other types of attorney fee structures, but contingency fee agreements are the most common.
We have previously discussed contingency fees and created the contingency fee calculator to show how expensive paying a personal injury attorney one-third, for example, can be. However, it is worth reiterating that most North Carolina personal injury attorney’s retainer agreements say that the attorney’s fees are one-third of any pre-trial settlement awards and forty (40) percent of all sums recovered once litigation ensues. This means that once you file a lawsuit, your North Carolina personal injury lawyer may receive as much as forty (40) percent of all sums recovered.
One of the most significant case costs related to prosecuting your North Carolina car accident claim arises from the costs associated with having expert witnesses review and testify on your behalf. Whether the expert is a physician, surgeon, economist or engineer, expert witnesses are not cheap. It is not unusual for experts to charge several thousand dollars to review a single case file.
Beyond the cost of expert witnesses, there will likely be several expenses that can be described as administrative in nature. Administrative expenses are typically expenses related to transcriptions, copying, couriers, postage and other miscellaneous case expenses. It would be rare to find a lawsuit that does involve hundred, if not thousands, of pages of documents, deposition transcripts, medical records and bills, and a variety of pleadings and court orders. As such, all of these items can be associated with some kind of administrative expense that will add up over time.
There are several other fees and expenses associated with filing a lawsuit. In North Carolina, there is a cost for filing your summons and complaint with the clerk of court to start your lawsuit. Moreover, there may be costs associated with filing certain kinds of motions in North Carolina.
It is important to remember that it is difficult to estimate the expenses for your personal injury case, as there are no common or typical personal injury cases in North Carolina. Considering that the facts and circumstances are unique to each case, it is important that you use this information as a general guide rather than a measure of exactly what your case costs may be.
Finally, if you are weighing the costs and benefits of litigating your personal injury claim versus settling out of court, you must consider the amount of time and attention that will be required should you decide to file a lawsuit. It is not uncommon for personal injury claims to take two years to resolve, ignoring the possibility that the case may be appealed and require an additional year or two. As such, negotiating a settlement for your injuries without filing a lawsuit is typically much faster than drafting, filing and litigating your claims before the court.
While it is worth pointing out that some plaintiffs’ attorneys will often agree to front certain case expenses for medical experts and records, it is important to review your retainer agreement carefully as some attorneys do not and will not advance case costs and expenses.
While a trial of a typical personal injury case will last two to four days, there should be little doubt about the massive and overwhelming stress that you will likely feel during this period of time. You will be subject to questioning on the stand, where you will testify to the facts of your case and the injuries you received as a result of the accident. However, it is important to be aware of the toll that having your good name and character called into question will have on you and your family. On the other hand, a settlement will not typically involve anything other than a recorded statement (if you even chose to do one, an agreement and a document to sign. Naturally, when compared side-by-side, you can see how significantly less stressful a settlement is compared to a trial.
The allure of filing a lawsuit is obvious where the insurance company has denied your claim or has extended a weak settlement. However, that allure is significantly less obvious when the insurance company has extended an offer that is just slightly below reasonable. Should you risk a verdict of zero in order to sue for more? Should you risk getting less money by filing a lawsuit? Would the increase in the verdict, if there were an increase, actually mean more money for you after attorney’s fees and trial expenses are taken? These are questions that need to be answered before you decide to file your lawsuit over accepting a settlement.
A trial could be lost when a key piece of evidence is excluded or a judge rules a certain way. Additionally, juries are known to be unpredictable. As such, when you file a lawsuit, you are electing a trial of your case and its facts and circumstances to be weighed and measured by judge and jury. It is important to remember that there are no guarantees in the judicial process.
An overwhelming majority of personal injury cases are public. This means that anyone could come to your trials and watch you talk about some of your most painful memories arising out your car accident. Additionally, this means that all witness testimony, including medical experts, will be conducted in open court. Naturally, the defense attorney, who represents the at-fault driver, will try to make you and your evidence look as bad as possible.
This is not the case for settlements. Settlements are typically private, including the settlement amount. This means that the public will not discover details from your medical history through your public testimony or hear upsetting details from your life or past. In a nutshell, settlements are private ordeals, and lawsuits are typically conducted in open court.