The Schafer Law Office

It has been reported in The New York Times that the results of a soon to be released study indicates that plaintiffs in civil lawsuits are better off to settle their cases and to avoid going to trial. The bottom line of the study appears to be statistics that show that a majority of plaintiffs who take their case trial do not get a verdict which exceeds the last offer of settlement received made by the defendant.

The statistics were compiled by Randall Kiser, who is principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions. The Results of the study is based upon data compiled as to when Defendants and Plaintiffs make the wrong decision in going to trial. These statistics were obtained from analyzing approximately 2,054 New York case over a 40 year period ending in 2004. According to the study Defendants are wrong when they decide to proceed to trial 24 percent of the time. The Plaintiffs did not fare as well being wrong 61 percent of the time.

An interesting statistic that is reported to be in the study was that in 15 percent of cases where the parties could not agree on a settlement both sides benefited by going to trial. The defendant is said to have won by getting a jury verdict less than the plaintiff asked for. The plaintiff is considered a winner by getting a jury verdict that exceeded the defendant's final offer of settlement.

Estimates based upon statistics in the study state somewhere between 80 to 92 % of cases settle. The study questions the motives of lawyers in proceeding to trial, suggesting a financial motivation. The financial motivation on the part of the defense attorney could be in the form of additional hours which can be billed on the case. This means a higher fee. For the plaintiff attorney, I don’t believe that the financial motivation would be that easy to pin point since it is a risk reward situation. That is they may get a larger verdict and therefore a larger fee, but they also may get a smaller verdict and a smaller fee or even a zero verdict that would mean no fee at all.

In my opinion financial motivation would not affect the attorney's decision making process in deciding whether to proceed to trial. Most defense attorneys I know are over worked and have more cases than they have time for. They would rather settle within the settlement authority they have from the insurance company than take the risk of going to trial and the plaintiff getting a verdict larger than that authority amount. If this was done often I believe the insurance company would be looking for a new attorney.

There are insurance companies that have policies of making low offers of settlement or forcing the plaintiff to trial. In these cases the decision making is in the hands of the insurance adjuster not the defense attorney.

As for a plaintiff's attorney, they will advise their client to go to trial if that is in the client's best interest. This decision is made by evaluating verdicts from cases with similar fact situations and from that attorney's own experience. Whether it is an auto accident case, a wrongful death case, a truck accident case, a motorcycle accident or a premises liability case the evaluation process will be the same. Unfortunately, there is no crystal ball or hard fast formula for determining a cases' true value. This is why it is important to get advice from an attorney who concentrates their practice in the area of law that is your case. The attorney's experience is a critical factor in the decision making process. Make sure your attorney is frank with you in his opinion of your case and you will have better odds of making the right decision for you. This will keep you from becoming a negative statistic.

For additional information on Louisville, KY attorney Mike Schafer go to mikeschaferlaw.com