You may recover on a personal injury claim by settling with the other parties or by going to court:
- Going to Court: You rely on a judge or jury to interpret the law to resolve who was at fault in your accident and how much should be paid to compensate for your losses. Bringing your case to court, called litigation, requires a lot of work, takes a long time, and often costs lots of money. Furthermore, there is no guarantee that the judge or jury will find in your favor or that the award will be as much as you think you deserve.
- Settling: When a case settles, both sides agree to a resolution. Usually, the plaintiff will pay a monetary award if the defendant agrees not to pursue the matter further. Settling offers a fast and straightforward resolution because it does not require the court’s involvement, and it is also less difficult because the parties know what the outcome will be before they agree to it. The parties can settle at any time and for any amount.
Why Should I Settle My Case?
The benefit to settling is that it is predictable and relatively fast, but depending on the strength of your case, you may have to compromise on the amount of your award. In contrast, going to court may result in a larger award, but the outcome is not guaranteed, and it may be years before you see the money. Even if you win, the defending party will have the right to appeal, making the case even longer.
Remember that everything said in a court goes on the public record. Your affairs and the extent of your injuries must be recalled for the judge and jury. The defense attorney will call the accuracy of your experiences into question. If you don’t want public scrutiny of your injuries and personal life, it may be better to negotiate a settlement.
Ultimately, be aware that legal issues determine trials. Certain factors such as emotional stress will not be factored into the award given at a trial.
Should I Go to Trial Instead?
Insurance companies will often try to settle suits as soon as possible because they acknowledge that settling for a lump sum at the onset of a claim may cost them significantly less money than defending the suit in court. If you consider settling with an insurance company, be aware that their business demands that they settle for the least amount possible, not necessarily the fairest amount. Furthermore, you may not know the extent of your loss immediately after an accident, so it is never wise to settle right away.
Although there is a risk you might lose at trial, there is also a chance you might win at trial. If that happens, the amount awarded at trial may be larger than any amount you might receive from a settlement. And even if you lose the trial, there is still a chance for appeal, a chance that does not exist if a settlement is taken instead.
What Are the Grounds for an Appeal?
An appeal asks that a higher court change the trial court’s judgment. They do this based on a legal or procedural error. It is necessary to remember that grounds for an appeal must be based on law and not on the facts of the case.
The appeals court, or appellate courts, very rarely consider the facts of the case. They do not review all of the evidence.
There are several ways in which an appeal may be granted, leading to the conviction being overturned or dismissed. Some examples of these ways include:
- Newly Discovered Evidence: An appeal may be granted if the evidence was not reasonably available to the defendant during the trial.
- Improper Instruction: An appeal may be made if it is discovered that the jurors in the case were given improper instructions. Jurors are given specific instructions strictly to follow when reaching a verdict. Improper instructions may also result in a new trial for the defendant;
- Juror Misconduct: Another way the jury influences the right to an appeal includes juror misconduct. Examples of juror misconduct include communicating with a witness, using drugs or alcohol during trial and deliberations, or even performing improper experiments to determine guilt (like in “12 Angry Men”);
- Illegal Evidence: Evidence cannot be used if obtained illegally, like through an invalid search warrant. The prosecution is not allowed to use illegally obtained evidence at the trial;
- Inadequate Representation for the Defendant: This occurs when the defendant’s attorney did a poor job or misrepresented the defendant somehow. It needs to be established that the trial’s outcome would have been different if not for the attorney’s actions, or lack of actions; or
- Abuse of Discretion: This refers to a judge improperly using their power in either a jury trial or a bench trial. If this improper use of power is found to have influenced or changed the outcome of the trial, an appeal may be granted.
Errors that are considered harmless, or mistakes that did not influence the trial’s outcome, will not likely result in the conviction being reversed or dismissed.
How Does an Appeal Work?
The appellate court only reviews the record and the evidence presented to the court to see if there are grounds to grant the appeal.
Appeals can be granted whole, in part, or completely denied. The appellate court may completely dismiss the charges if the appeal is granted. Alternatively, the appellate court may order a new trial altogether. If the appellate court denies the appeal, then the defendant may appeal the case to the state’s highest court. The state’s highest court does not have to review the appeal; it is completely discretionary.
The amount of time the appeals process takes depends on several factors. First, your lawyer must fully prepare the record, as they are appealing the legal errors that arose during your original trial. This process could take anywhere from four months or longer. Then, briefing could take another four months or longer, with the appeals court taking another six months or longer to decide whether there will be an oral argument in the case.
What Types of Damages Can a Judge Award an Injured Plaintiff if They Don’t Settle?
An injured plaintiff who demonstrates that a defendant is liable (who proves the defendant committed intentional or negligent injury) is entitled to compensatory damages. Under the law, a plaintiff can recover two types of damages:
- Damages for an injury, and
- Damages for the consequences of the injury.
The law recognizes this distinction. Under the law, there are two types of compensatory damages known as general damages and specific damages.
General damages are those damages that are awarded for the injury itself. These damages include pain and suffering and mental anguish, and trauma.
General damages cannot be readily assigned a monetary value. Thus, to recover such damages, the testimony of an expert, such as a physician or psychiatrist, is necessary to assign a monetary value.
Special damages compensate someone for a specific consequence of an injury. Specific consequences include medical expenses and loss of wages.
Do I Need a Lawyer to Settle My Case?
An experienced personal injury attorney can help you decide if a settlement is right for your case. In addition, there may be certain factors that can lower or raise the amount of money settled for. If the settlement breaks down, having a lawyer is crucial as the case moves to trial.