Though the general public is taught — through television and movies — that civil disputes almost inevitably lead to trial, the truth is that the vast majority of personal injury cases don’t actually go to trial. In fact, most cases (personal injury and otherwise) are “settled” through negotiation before a trial ever begins.
Negotiating a settlement isn’t always straightforward, however.
Plaintiffs and defendants are fundamentally opposed. As such, the defendant will attempt to negotiate a reduced settlement amount (under the auspices that they would be likely to win the case should it proceed to trial, or that the jury would award lower damages than the plaintiff is requesting).
Given the push-pull dynamic inherent to settlement negotiations, it’s important to seek the assistance of an experienced attorney. The advocacy of a skilled attorney can be the difference between a favorable and unfavorable settlement.
How so? Let’s take a closer look at the mechanics of settlement negotiation.
Favorable Settlements Require Skilled Advocacy
The point of a settlement is to minimize the “uncertainty” of litigation and avoid the cost of having to go through the trial process. As such, the amount recovered in a settlement is ultimately determined by a) the likelihood of success at trial, and b) the amount of damages recoverable should the plaintiff succeed.
This can be difficult to understand at a glance, so let’s use an example to illustrate how it actually works.
Suppose that you are injured in a car accident case and are claiming $100,000 in total damages. After some back-and-forth with the defendant, it appears that you are almost certain to establish liability in the case — in fact, the defendant is willing to concede that they were negligent and caused the accident. The dispute is therefore only over the amount of damages: the defendant is arguing that you are only entitled to recover $50,000.
Given these facts, the negotiated settlement amount would likely fall somewhere in the middle of the damage claims ($75,000). If the likelihood of establishing liability was not 100 percent, then the plaintiff’s total damages recovery would have to be altered accordingly.
For example, at a 90 percent likelihood, the negotiated settlement amount would likely be reduced to $70,000 (($100,000 * .90) - ($50,000) / 2).
The key to “bumping up” the settlement offer is to present evidence and arguments that are persuasive enough to convince the defendant that you are not only likely to establish liability at trial, but that the jury is likely to award the damages requested in full. The more persuasive your attorney can be, the more leverage they will have to negotiate a favorable settlement amount.
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If you’ve been injured, it’s important that you consult an experienced attorney as soon as possible so that your case can be handled appropriately. Attorneys provide guidance on how to proceed and will negotiate with opposing counsel on your behalf.