A personal injury trial is one possible path
No one can reliably promise at the beginning that an injury case will settle or that it will require a verdict. The answer depends on the evidence developed and whether the parties can agree on a reasonable resolution. I prepare for the possibility of trial while continuing to evaluate opportunities to settle.
Preparing a case carefully gives you a stronger basis for deciding between settlement and trial. The same records and testimony that help explain a case to a jury can help the insurer understand it during negotiations. Preparation creates informed choices; it does not require rejecting an appropriate offer.
For a client, the most useful question is often what remains unresolved. Knowing which facts are disputed explains why the case is taking a particular path and what the next stage is intended to accomplish.
Identifying the disagreement
Sometimes the dispute concerns how the accident happened. Two drivers may describe different traffic signals, and the available recording or witness testimony may not yet have been obtained. In that situation, the investigation into responsibility may change the settlement discussion substantially.
In another case, fault may be relatively clear while the effect of the injury remains disputed. The parties may disagree about whether a condition was caused or worsened by the accident. That question calls for a developed medical history and appropriately supported opinions, rather than simply repeating that the client is still hurting.
I would explain which disagreement is keeping the parties apart. A general statement that the insurer will not pay enough gives the client very little information. The client should understand what evidence supports our position and what the other side may present in response.
What discovery contributes
Discovery is the formal exchange of information during litigation. It may include written answers and testimony under oath. Its purpose is to develop the record so that the important questions can be evaluated on evidence rather than assumptions.
A fact that seems clear in an initial conversation may need supporting records before it can be presented effectively. Another fact may turn out to be disputed. That does not mean the case has failed. It means the work of proving the case has to address the disagreement directly.
The most meaningful evaluation often comes after the relevant discovery is developed. Even then, an estimate is not a guarantee. A jury may view a witness or a medical opinion differently. Counsel should explain that uncertainty while giving the client a reasoned assessment of the available choices.
Considering settlement discussions along the way
Settlement can be discussed before a lawsuit, during discovery or after a trial has begun. The timing should make sense for the information available. An early discussion may be useful, but a final release generally closes the claim within its terms and should not be signed without understanding the consequences.
Mediation may provide an opportunity to negotiate with the assistance of a neutral person. The mediator does not simply impose a verdict on the parties. The process can be useful when the parties need help evaluating competing positions or working through the practical terms of an agreement.
An offer should also be evaluated in terms of the anticipated net recovery. Expenses and reimbursement obligations can affect the client's actual proceeds. The client should understand those figures alongside the litigation risks, rather than be asked to decide from the headline amount alone.
Preparing to participate in a trial
If trial becomes necessary, an injured plaintiff should expect to discuss the accident and its effect on daily life. Preparation should explain the courtroom process and help the client review the relevant records. It should never substitute a script for the client's own truthful recollection.
Ordinary details can matter. A client may remember needing help getting dressed or being unable to complete a familiar work task. Those concrete observations can explain an injury more clearly than broad statements that everything changed. The account should also recognize improvement when improvement occurred.
Practical needs should be raised early. A medical condition may affect how long someone can sit or whether breaks are needed. An interpreter or another accommodation may require advance arrangements. Preparing the case includes preparing for the client's ability to participate meaningfully.
Making the decision with a developed record
The lawyer advises the client about settlement; the client decides whether to accept an offer. That discussion should address the evidence and likely expenses as well as the time and uncertainty involved in continuing. A recommendation should be tied to the particular case, not a general preference for settling or trying every matter.
There may be more work to do before a reliable recommendation can be made. If so, I would explain the missing information and why it matters. Waiting for a necessary medical opinion is different from waiting without a defined purpose.
A trial date does not eliminate the possibility of settlement, and a settlement discussion does not eliminate the need to prepare. The objective is to pursue the recovery the evidence supports while keeping the client informed enough to make the decisions that belong to the client.
Sources and Further Reading
About Michael B. Fusco
Michael B. Fusco is a New Jersey personal injury attorney certified by the Supreme Court of New Jersey as a Civil Trial Attorney. Read Mike’s biography and credentials.
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General Information
This article provides general information, not legal advice for a particular situation. Laws and policy terms must be applied to the actual facts. Reading this article or contacting the firm does not, by itself, create an attorney-client relationship.