If I go to court will I get more money?
When we deal with insurance companies about what a claim is worth, we always quote case law. Case law are decisions from Judges after car accident victims took their case to court and went through a trial. If that happens, a judge will decide the amount of compensation you should get for various kinds of damages. For example, an amount of money will be awarded to reflect the amount of pain and suffering that you went through. The judge may also award something called “special damages” which reflects actual expenses that you had to endure as a result of your injuries.
If you settle your case without going to trial, it is true, that generally you will settle at a lesser amount. Why? This is because the insurance company has made an assumption that if you went to court, a judge would decide in your favor, your medical doctor would stick to his or her opinion and not weaken or alter his or her opinion on the stand while being cross-examined by the insurance company’s lawyer among other assumptions that are in your favor. In other words, settling out of court means that the insurance company is already giving you the benefit of the doubt thus, it is expected that there will be some concession on your part as well in the sense that you will come down slightly from your best case scenario award if you go to trial.
A good legal term for the above is “quid pro quo”. In other words, they do something for you (assume that everything will go well and the judge would agree with you that you are owed money and all of your witnesses will show up, and your doctor will maintain his or her opinion even after a vigorous cross-examination), and you do something for them (come down slightly from your best case scenario award).
A trial judge once said to me after we had settled a case in a settlement conference without going to trial, “Averill, you know you’ve reached an appropriate settlement when the insurance company believes that they paid out too much and your client is somewhat satisfied”.
You simply cannot assume that everything will go as planned if you go to trial. Here are some of the things that can go wrong:
- Your medical doctor either changes his or her opinion about the severity of your injury or alters it while being cross-examined by a lawyer for the insurance company. For example, your doctor may have classified your injury as being “severe” in his opinion letter. However, during the trial when the lawyer for the insurance company begins to show your doctor surveillance footage of you bungee jumping, carrying heavy groceries, dancing and partying on Facebook, the doctor may downgrade the severity of your injury to something like “mild to moderate”. Generally that could mean a loss of upwards $30,000.00 on your claim for general damages. You lost that money because you were stubborn and refused to take a reasonable settlement without a trial;
- Your specialist decided to take an out of country trip prior to their subpoena being served (this actually happened with a case I was handling and in hindsight the client would’ve gotten more money had she settled out of court).
- Something unexpected turns up that would not have been discovered in an out of court settlement. This happens all the time. In one trial, my client had told me that she did not have any pre-existing issues with her lower back. Her GP of 5 years had said the same thing. However no one was aware of the back issues that she had had when being treated by a previous doctor who’s chart was not before the court. During the trial, the lawyer on the other side delved into several hits on her MCP record that occurred a year prior to the chart history that was before the court. It turns out that she did have a previous back issue and it was not clear that the car accident that we were going to trial on was the sole cause of her symptoms. Her claim was significantly lessened and we were kicking ourselves for not having settled the matter prior to trial.
To sum up on all of the above, if you are getting a reasonable offer prior to trial that is not spectacular but it’s reasonable, and I have told you that we are in the insurance company’s final upper range, it would be wise to simply accept the offer. Again, think “quid pro quo”.