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If you have been hurt in an accident you probably lost some income and have medical expenses and want to know how quickly your case can get settled. I participate in the questions to attorneys at www.avvo.com and I see a lot of questions from clients who think their attorneys are not moving fast enough.*
There are many delays necessary to get an accident victim a good recovery. Here are some of them:
- Until you either finish your medical treatment or until your medical condition has stabilized to the point where your injury is not getting any better it is not possible to fairly to evaluate the value of your claim. What is My Case Worth? Before this point is reached settlement discussions are not likely to be productive unless it is clear that payment of the entire applicable insurance policy is already justified and you, my client, are willing to release the Defendant for payment of the insurance policy limit. A Plaintiff's attorney may not see much need in talking to the insurance company before their client's treatment is finished or, at least, stablilized.
- Sometimes I have a claim that I think will probably have to go into litigation to get a good result. However, if the Plaintiff is still treating and there is plenty of time before the statute of limitation will run I may hold off filing suit. The reason is once suit is filed certain deadlines designed to move the case toward trial start to run, but if the medical situation is still changing, it is too early to get the case ready for trial. (This situation applies to severe injuries likely causing severe permanent damage.)
- Once the Plaintiff's attorney can evaluate the case and make a demand to the insurance company, the insurance company has to respond. Different insurance companies and different adjustors seem to cycle back and forth between thinking, "Let's make a fair settlement offer early and not spend a lot unnecessary money on our defense attorneys," and thinking, "Let's get tough with claims. Let's spend some money on defense attorneys and convince Plaintiffs' attorneys that if they don't take our low offer it's going to take forever to resolve the case." If the insurance company takes this latter position, then my client and I may decide to file suit. Or maybe not. I've had a client say to me, "Mr. Reed, the $12,000 I would net under their offer may not seem like big money to you, but it is to me and I want to take the offer."
- Sometimes just filing suit after a low offer results in a more satisfactory offer a couple to a few months down the road.
- At other times, we file suit and the Defendant's refusal to pay or to pay more doesn't change. I mentioned earlier that when you file suit certain deadlines are triggered to get the case ready for trial. Unfortunately, especially in state court, cases may not move rapidly toward trial. Or we may get a trial date but the court overbooks trials so that several trials are scheduled for the same trial slot. Many will settle before trial, but a lot of cases will not be tried on the date set for trial.
- Even if we go to trial and win the other side could appeal.
- Particularly with car accidents, there may be a policy limit issue. For example, the at fault driver has a policy limit of $250,000. If the injury is 100% obvious, for example, a foot amputation resulting directly from the collision, the adverse insurance company will quickly offer its policy limit and then we will have to decide whether we could get more by refusing the offer and going to trial and collecting the excess from the individual. On the other hand, if with the same policy limit, the injury was a devastating back injury, unless x-rays showed shattered vertebrae, no one at the insurance company would want to quickly assume responsibility for calling this a policy limits case. Suit would have to be filed and formal discovery begun to get someone with authority at the insurance company to really evaluate the case.
- An "Offer of Judgment" can sometimes force a settlement. The Plaintiff can offer to settle with the Defendant for a particular figure, say, $50,000. The Defendant has ten days to accept this offer or reject it or do nothing which is a rejection. Now suppose the defense thinks the case is worth $40,000 to $60,000. If the defense does not accept the offer and the Plaintiff ultimately gets more than $50,000 at trial, the Plaintiff is entitled after the verdict to some attorneys fees. This means that in addition to paying more than they had to, the defense now has to pay some of Plaintiff's attorneys' fees. This may force the defense to accept. Likewise, if the defense makes an offer of judgment which the Plaintiff refuses, and the Plaintiff does not get more than the Offer of Judgment at trial, then the Plaintiff will owe the defense some of its attorneys' fees and will owe the defense some of its costs. (In the absence of an Offer of Judgment, if the Plaintiff wins any amount at trial the Plaintiff is entitled to his costs, but if the Plaintiff fails to beat an Offer of Judgment now instead of getting costs from the defense, the Plaintiff owes costs to the defense.)
- For larger cases with significant insurance coverage (or the defendant has deep pockets and is uninsured) there is often the problem that no one on the defense side wants to stick their neck out and authorize a large payment without their being some urgent deadline that requires an immediate response such as the case is about to go to trial.
- Most cases are not tried. However, even for that minority of cases that get set for trial, a trial date is no firm guarantee that the case will be tried on that date. Most cases are tried in state court where several cases will be given the same trial date in the expectation that some will settle on the eve of trial. If that's not the case some of the cases set for trial will be given a new trial date many months in the future.
* See my www.avvo.com profile at http://www.avvo.com/attorneys/89146-nv-jonathan-reed-1843539.html