Attorney David I. Fuchs
Dec. 23, 2016
Negotiating a settlement award is significantly more common than pursuing injury litigation all the way to trial. In fact, trial litigation is generally considered a last resort in the event that settlement negotiations fall through.
The litigation process can be rather time-consuming, expensive, stress-inducing, and uncertain for all parties. It is plausible that a given party could spend a great deal of time, energy, and money on injury litigation, only to lose, or alternatively, to realize a disappointing win (for example, if the damage award is unsatisfactory).
Personal injury settlement avoids the inherent risks and costs of litigation by allowing parties to negotiate their own compromise award – taking into account the possibility of eventual success at trial.
The key to negotiating a settlement is understanding and maximizing those factors that positively influence the chance of success at trial.
Suppose, for example, that you are injured in a car accident. You assert that your injury claim is worth $250,000 in total, and you have a great deal of evidence that supports your calculation. In early settlement negotiations, however, the defendant is only willing to compromise at $125,000 or less.
Such a compromise might be untenable for you, but let’s examine why the defendant may be unwilling to compromise at the $250,000 value, despite the fact that the damages amount is reasonable in light of the evidence.
Though your injury claim may actually be worth $250,000, it is only worth that much in real terms if you win at trial. When negotiating the settlement award, the damages amount must be modified by the perceived chance of success at trial. For example, if the defendant legitimately believes that he or she stands an equal chance of success at trial, then the $250,000 amount is likely to be seen as unfair.
According to the defendant, there is a 50% chance of success at trial, and therefore the fairest compromise is a $125,000 settlement.
To state it simply: settlement negotiations are generally a matter of compromising around the risks of trial litigation. As a personal injury plaintiff, the more you can show the defendant that you will succeed if the case goes to trial, the more likely it is that the defendant will make a higher settlement offer.
The following is a non-exhaustive list of factors that are likely to affect the value of your settlement award in a Florida injury case.
Liability is Obvious
If the defendant is clearly liable for your injuries – in other words, the evidence leaves little room for argument – then this is likely to drive up the value of your settlement offer significantly. When the defendant is clearly and obviously liable, then your chance of success at trial is much higher. You have a great deal of leverage in these cases, but be aware that there is still space for disagreement as to the actual damages.
Defendant is a Public Entity
If the defendant is a Florida public entity, then they will enjoy certain immunities and protections that private entities do not otherwise enjoy. As such, the public entity status of the defendant is likely to drive the value of your settlement offers down somewhat – unless you can put together a convincing argument that the existence of such protections will not affect your case.
If you are suing multiple defendants, then your settlement offers may be quite variable. When there are multiple defendants, each defendant will likely argue that they are liable for a relatively small percentage of the total fault. This can add a layer of complexity to settlement considerations, and may drive down the value of each defendant’s individual settlement offer.
Charismatic Plaintiff or Defendant
A charismatic or relatable defendant is more likely to win at trial, solely due to the fact that the jury will favor them and will generally find their testimony more believable. As such, the settlement offer will likely take this into account. If you are particularly charismatic or relatable, a skilled personal injury attorney will ensure that this advantage is communicated in early settlement negotiations.
Pre-Existing Injuries or Other Condition
A pre-existing injury or condition is likely to be a sticking point for the defendant, particularly if it is closely linked to your new injuries. Though you may legally recover damages for the exacerbation of an injury or condition, the damages are generally lower than if the injury was exclusively created by the accident at-issue. As such, the presence of related pre-existing injuries are likely to drive down the value of your settlement offer, though this effect can be minimized with convincing medical record evidence.
If you or someone you love has been injured as the result of someone else’s wrongful acts or omissions, seek the counsel of the skilled Fort Lauderdale personal injury lawyers at David I. Fuchs, Injury & Accident Lawyer, P.A..