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Factors in Settlement Negotiations in Personal Injury Cases

Most personal injury claims are resolved without ever going to trial. Slip-and-fall and motor vehicle accident cases may settle at any time--from before even being filed in court to as late as when a jury is engaged in deliberations.

Determining the value of a personal injury claimant’s case poses a challenge for insurance claims adjusters and experienced personal injury attorneys alike. Numerous factors enter into determining whether personal injury lawsuits will settle and for how much. This blog post focuses on the elements personal injury lawyers consider in settling claims.

The lion’s share of personal injury disputes is concluded through negotiations between claims adjusters and attorneys. Massachusetts law imparts a duty on insurance companies to act in good faith toward their insured who are sued in personal injury actions to settle claims within policy limits. In turn, neither a tendered settlement offer nor a settlement agreement itself is admissible as evidence to prove a defendant’s liability in a personal injury case.

Sometimes parties in a personal injury action will weigh a structured settlement if budgetary constraints are a consideration, provided a plaintiff is willing to accept payments for the sustained injury over time instead of as a lump sum. Structured settlement agreements may be particularly suitable in cases involving a plaintiff who is a minor, or where significant future medical expenses are projected for the injury suffered.

The circumstances of every motor vehicle accident or slip-and-fall case are unique. Generally, however, veteran personal injury attorneys will refrain from filing a lawsuit until the plaintiff reaches a medical end point in treatment of his/her injuries. They also typically wait until after a reasonable time of negotiations has elapsed without a settlement being agreed on.

Insurance companies are more likely to loosen the purse strings in cases in which they believe juries would find a plaintiff’s pain and suffering to be substantial. Specifically, a higher value would be assigned to “hard injury” cases, such as nerve damage, spinal injuries, joint injuries, head injuries, and bone fractures. Hard injuries are detectable by X-rays, MRIs and other diagnostic scans and potentially severely impact the plaintiff’s health.

In contrast, “soft tissue” injuries, such as sprains, muscle strains, bruising and “whiplash” tend to yield lower settlement offers from insurers, because less in the way of medical treatment and prescription medications is involved and often such injuries are not permanent and heal in a relatively short time. Permanent damages, such as scarring or limited mobility, will boost the value of a personal injury claim, as will demonstrable emotional harm illustrated by psychological treatment. Substantial long-term future medical expenses are a strong bargaining point for plaintiff’s counsel.

Among the factors experienced personal injury lawyers will weigh in preparing a settlement demand are: how the incident underlying the injury occurred; whether the plaintiff was at all comparatively negligent; the amount of insurance coverage held by the defendants, the availability of uninsurance and underinsurance coverage; and whether there are multiple victims, which places a strain on the pool of recoverable damages.

Additionally, attorneys will research precedence for damages suffered by plaintiffs in similar cases and pay attention to the locale of the incident—juries in some communities historically award greater damages to accident victims than in other jurisdictions. The experience level of counsel involved in the case, property damage, whether lost wages or liens are components of the level of disability and the permanence of the injury sustained by the plaintiff also factor into the mix for negotiating a settlement sum.

Furthermore, because personal injury cases are not tried in a vacuum, attorneys on both sides will pay attention to the “likability” of the injured party and whether the parties would make effective witnesses. On the subject of witnesses, favorable testimony from witnesses can generate a higher settlement figure, and, conversely, no witnesses or unfavorable testimony can lower a settlement offer. At the pre-suit stage, plaintiffs’ attorneys are wont to remind claims representatives that settlement will save both sides the cost of a jury trial.

Needless to say, if the occurrence that caused the injury was unequivocally the fault of the other party, it’s probable that the case will settle for a greater amount. The plaintiff’s medical history, including pre-existing injuries, are an aspect of settlement negotiations. Likewise, a litigious party’s prior lawsuits and the existence of a criminal record will enter into settlement discussions. Just as “hard injuries” trump “soft injuries” in settlement negotiations, significant medical bills from medical doctors, surgeons, hospitals and prescription medications tend to influence insurance companies more than those from chiropractors and acupuncturists.

As one can see, pain and suffering, employment damages, medical bills and loss of consortium are only some of the considerations that go into determining the settlement sum for an accident victim. If you have any questions about car accidents, personal injury law, tort law, damages, or other legal incidents, please contact our offices. You may schedule a free consultation with an experienced professional today. Call 978-225-9030 during business hours or complete a contact form online.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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