Settlement or Trial. Which will it be?

When a person is injured in an accident, or someone has a business dispute, there is always the chance such a dispute may end up in trial.  The question to be asked and answered during the pendency of a case is whether it is better to settle your case or take it to trial.  So what are some of the factors which may influence the direction your case will take.

Here is one important statistic.  About 95% of all cases filed with the court never go to trial.  This does not mean that 95% of all cases settle.  Some of the filed cases never settle or go to trial because a judge determines the case has no merit and stops the case before it makes it to trial.  Some of the methods taken by a judge which may end a case include sustaining a demurrer, granting a motion to strike or granting a motion for summary judgment.  A demurrer is a challenge to the factual allegations of a complaint regardless of the evidence.  Basically, the defendant is saying, even if everything is true as alleged in the complaint, the plaintiff (the person bringing the lawsuit) does not have a claim which can be brought before the court.  For example, if from the allegations of the complaint it can be determined that a claim was filed with the court after the expiration of the statute of limitation (the legal time within which a claim must be filed with the court) the court can dismiss the case by sustaining a demurrer.  This  resolves the dispute, but would not be resolved with a trial or settlement.

Another method which eliminates a case without trial or settlement is a motion for summary judgment.  In this situation, one side presents the “undisputed” facts of the case and indicates to the judge that either the plaintiff does not have a claim based upon the facts of the case, or that the defendant does not have a defense to the case.  If the opposing party wants to prevent the case from being tossed out, then disputed issues need to be presented.  This approach to resolve a dispute does not succeed if there are disputed issues of fact which require a jury to weigh the evidence and the witnesses before making a decision.  If however, a judge decides there are no disputed issues of fact, the judge can stop the case by granting this motion and ruling in favor of the party who brought the motion.  This process is a bit complicated and is generally expensive.  But if used properly it prevents the risks associated with trial.

There are other methods for throwing out a case and those methods will vary in Federal and State court.  These various methods may eliminate anywhere from ten to twenty percent of all cases.   Another method of resolving a case without trial or settlement is when one side or the other gives up or does not fight the claim.  This probably accounts for an additional fifteen percent of all cases.  When a defendant does not respond to a complaint filed by someone, that person’s default is taken and they cannot defend against the allegations without asking the court for permission to get back in the case.

So the balance of the cases, about 65% to 70%, will either settle or go to trial.  So which cases have to go to trial.  Here is a short list of reasons a case may need to go to trial.

There is a disputed issue of liability.  Assume you have a slip and fall case.  You claim you were injured at a store.  No one disputes you were hurt at the property.  But that is not enough to get the store to pay for your injuries.  You need to first show that the property was in a dangerous condition and that the owner knew of the danger and failed to either repair the danger or failed to provide a warning of the danger.  Additionally, the property owner needs to have had enough time to discover the problem and correct it.  If the parties cannot agree on who is responsible for the injury, there is the possibility a trial will ensue and a jury will decide the issues for them.

There is a dispute in the amount of damages.  Consider you are a business owner.  After you enter into a contract, the other parties fails to live up to the agreed upon promises.  This is a breach of contract.  You claim you were damaged $150,000.00 by the actions of the other party.  However, the defendant thinks you are only entitled to $15,000.00.  If there is no compromise, then the parties may need to have a judge or jury resolve this dispute.

The parties just don’t like each other.  This can be a real problem.  Sometimes, regardless of the efforts of one side or the other, the parties just cannot or will not agree to resolve their differences.  In this situation, only the lawyers are winners because the clients are willing to spend their money on their lawyers, even if it is against their best interest.

So why do most cases settle?  While there are many reasons, here are a few reasons that seem to reoccur.  One reason is that most situations are approached with a level of reasonableness.  The parties, through their lawyers, obtain and evaluate the facts, compare these against the law and come to the conclusion that it is better to settle rather than go through the expense and trouble of bringing the case to trial.  The lawyers, parties and/or insurance adjusters work together to come to an agreement on certain terms or the amount that will be paid to resolve the claim for the injuries or losses.

In other situations, a case may get settled because one party, or both just don’t have the resources to fight a disputed case and it is economically better to settle than to spend the money on the legal battle.  Maybe the risk of financial loss is too great to put the matter in the hands of a jury.  Settling allows the parties to take control of the outcome and limit the risk through a settlement.  Unfortunately, there are often too many settlements which are made because the responsible party does not have sufficient insurance and/or assets to pay the full value on the claim or a full judgment if it were to go trial.  As a result, the injured party has to settle the claim because there is just no other option.

When you start your case, there is no way to know if your case will be one of those that settles or one that goes to trial.  However, as the case progresses and information is exchanged, it will become clearer whether your case will settle or go to trial.  A good trial lawyer generally seeks a way to resolve your case for a fair settlement, but is prepared to fight the battle at trial if that is the best choice for your case.

Trial is generally an unpleasant experience.  The cost, time, confrontation and the uncertainty all combine to make it a very scary time.   However, with an experienced trial lawyer, a trial may be the right way to resolve your claim.