By Gary A. Richard
The question of when or, at least as importantly, when not to consider settling a lawsuit is of particular concern in personal injury cases.
The largest part of damages claims consist of pain and suffering, loss of income, housekeeping expenses, cost of future treatment and out of pocket expenses.
“From the point of view of the plaintiff, or injured party, who is usually in need of money because of the losses they have suffered after the accident, the balance is between a speedy settlement and making sure that the settlement is a fair reflection of the damages they have suffered,” explains Gary Richard, personal injury lawyer with Burchell MacDougall.
Generally, a fair settlement achieved early in a lawsuit will put more much-needed money in the hands of the injured individual, since legal costs will only get higher as the lawsuit moves towards trial. If they are successful at trial, legal costs are recoverable as part of a damages award; however, those costs only represent a percentage of the actual legal costs they will incur in the course of the lawsuit.
“A ‘fair’ settlement can only be determined by time and information,” he goes on, “It is not uncommon in personal injury cases for the injured party to be uncertain for months or years as to the full extent of their likely recovery. A hasty and ill-informed settlement may leave them with money in hand that will not cover the actual losses they eventually suffer over the long term.”
The job of experienced legal counsel in this scenario is to determine what medical information will formulate a reliable assessment of the value of the claim, including all damages that may persist and accumulate into the future.
The determination of what is a fair settlement takes into consideration issues of fault or liability. It is not that the likelihood of establishing fault has any effect on the actual damages incurred, but rather that the plaintiff has to consider the risk of not being able to establish fault, and they may want to consider compromising their settlement position in recognition of this risk.
“For example, they may have very reliable evidence and law to support a basic settlement amount of $100,000, based on the injuries they sustained,” Gary expounds, “If, however, the realistic probability of establishing fault of the other party is just 50 per cent, it is sensible to be ready to compromise on that figure in order to discount for the risk of not getting any monetary award at all.”
Even if fault can be established at a basic level, there may be reductions to a damages claim made by the court based on factors like contributory negligence and future contingencies. These factors will also inform an experienced personal injury lawyer in determining a sound settlement position.
“Fundamentally, if you are injured in an accident and you think you have a claim, you should not accept any settlement offer until you have reviewed the offer, and your own personal circumstances, with a lawyer experienced in the practice of personal injury law.”
This article is for information only and is not intended to be legal advice. If you have any questions or would like further information, you should consult a lawyer.