We have all heard “Is one bird in the hand better than two in the bush?" Basically, that question is asking whether it is better to take something that is known or take a risk and hope for something better. That risk could also mean losing it all. We all face this decision several times in our lives. Plaintiff’s attorneys face this question all the time. There are many factors that go into the decision making process. Some of these decisions range from looking at reports from similar cases to the intangibles like the witnesses.
Study: Should you go to trial?
A study from New York explored how well plaintiffs and defendants in civil lawsuits did when they elected to go to trial over accepting the final offer made. The results of this study showed that plaintiffs in civil lawsuits were better off when they settled their case and should avoid going to trial. The statistics from the study showed a majority of plaintiffs who take their case to trial did not get the verdict they had hoped for their case. Interestingly, more times than not, the verdict did not exceed the last offer of settlement made by the defendant.
An interesting statistic reported in the study was that in 15% 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.
Is there a secret financial motivation?
Estimates based upon statistics from the study stated between 80% to 92% of cases settle before going to trial. The study questions the motives of attorneys 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. I don't believe that the financial motivation would be that easy to pinpoint on the plaintiff’s side since it is a risk versus 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. Since many insurance companies have policies of making low offers of settlement, the decision to go to trial 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. Unfortunately, there is no formula for determining a case's true value. This is one of the reasons why it is important to get advice from an attorney who concentrates in the area of law that is your case. This experience is a critical factor in the decision making process. It is up to you to make sure your attorney is completely frank with you in their opinion of your case. You will have better odds of making the right decision.