Are you wrestling with the decision of what to do with your personal injury case? To file, or not to file a lawsuit? If you’re reading this blog post, you probably have a difficult choice ahead of you. Unfortunately, trying to make the best decision is not black and white. Personal injury settlements involve many unknowns. Ultimately, you and your attorney have to make a decision that is best for you, your case, and your future.
If you accept the offer, then you are agreeing to stop pursing your case in exchange for the money offered. This means that you will not be able to pursue the defendant in any other way. You can’t go after their personal assets, continue to trial for a bigger payout, or file a claim against them for the same accident again. When you accept an offer from an insurance company, you will be asked to sign a document titled Release of Claims. This agreement ensures that you cannot pursue any further claims against the defendant.
If you decide to file a lawsuit, your prelitigation negotiations are null and void. Your attorney will draft a petition against all possible defendants, file the lawsuit with the appropriate court, and hire a company to serve the defendant. The defendant’s insurance company will pay for a defense attorney to represent them. At any time after a lawsuit is filed, the insurance company may increase its offer. You should always plan to litigate your case through trial, but most cases settle before then.
If your attorney has told you that they have the “top offer” or “max offer” on your case, then you may be confused as to what that means. First and foremost, keep in mind that just because you’ve gotten their top or best offer, it doesn’t mean that the number is how much your injuries are worth to you. That’s not how the insurance companies view cases.
Most insurance companies evaluate everything about your case and then they come up with a range of offers. They will consider how the accident took place, where the accident took place, the severity of the impact, the amount of property damage, the police report, your demeanor, the demeanor of their defendant, how quickly you received treatment, what kind of treatment you received, if you recovered from your injuries, if you missed work, if you had prior medical conditions, if you’ve file other claims or lawsuits in the past, etc. For example, let’s say you were rear-ended at a low speed. You did not call the cops, but you went to your family doctor a few days later for neck pain. Assume your pain resolved after a few days with medication and you didn’t have to miss work due to your injuries. Based on where the accident took place, the insurance company could have your case evaluated anywhere from $1,000.00 to $3,000.00. Your attorney’s job is to get that top number for you and fight to increase the value of your claim.
Once your attorney has gotten their top or best offer, you can have a conversation about how to move forward. Does it benefit you more to accept the offer and settle the case? Or does it benefit you more to file a lawsuit because the offer isn’t sufficient?
Once you have a top offer, you and your attorney will discuss how it would be dispersed amongst your medical bills, your attorney, and yourself. You will have some say as to how the money to be distributed. There are a few costs that your attorney will have to pay by law, like hospital liens and health insurance liens, but if you want to take care of the rest of the bills, you can direct your attorney to issue the funds to you. From your case, your attorney will deduct their fees and case costs and the medical bills they are legally required to pay as well as those that you instruct them to pay. Everything left over goes straight to you.
It’s completely understandable if you feel that the insurance company hasn’t made a fair offer. After all, you’re the one who suffered from the wreck and the injuries afterward. You cannot take the offers personally. The insurance adjusters have specific formulas that they use for making offers based on the information surrounding the wreck and your treatment. Your attorney should be able to tell you why the offer is what it is.
Your attorney will be able to tell you if they believe the offer presenting is within the range of what a jury may reasonably award in your case based on recent jury verdicts in your area. While it is an emotional process for you, your attorney needs to be able to look at your case objectively to give you all of your options so you can make the best decision for you, your case, and your future.
Ultimately, it’s your case! You alone have the choice to file a lawsuit after evaluating all of your options. Your attorney will make a recommendation, but it’s 100% your choice.
If you file a lawsuit, you are hoping and expecting that your litigation offers will be higher than your pre-litigation offers. Hopefully, that’s the case. However, it’s important to know that a higher offer might not always mean more money for you. This is because litigation is expensive! The expenses of filing a lawsuit will be deducted from the total recovery. Assuming you don’t need expert witnesses in your case, you should expect to incur anywhere from $1,000 - $3,000 in litigation expenses.
Let’s say you beat the prelitigation offer by $1,000.00 at trial. After filing costs, deposition costs, mediation costs, the cost of bills and records on affidavit, and a possible increase in attorney fees (if your attorney’s contract states a different fee for prelitigation and litigation), you won’t see that $1,000.00 difference. In fact, after deducting all of the expenses, you’ll likely end up with less money in your pocket than if you settled your case before filing a lawsuit!
Although it’s impossible to know definitively how your case will work out, your attorney should be able to advise you on what they expect. Again, the ultimate decision is yours. It’s your case and the option to settle or file a lawsuit is yours.
It may seem like your attorney should be able to just get a little more on your top offer, but that’s not always the case. Usually, your attorney will have made every argument to get to that top number they told you about. Every case is different. And insurance companies view every case differently. Moreover, adjusters view every case differently. There’s a chance that your attorney may be able to get a higher offer for you, but there’s also a chance that the top offer is the offer you’ve been presented. Sometimes, the only way to try and get more money from an offer is to roll the dice and file a lawsuit.
That’s a great question! If you accept the offer, you may feel like you were settled for much less than you should have. If you file a lawsuit, you are agreeing to a few years of litigation, with no guarantee of the outcome being better than the prelitigation offer. Fortunately, your attorney knows that this decision is not an easy one. They will be able to discuss your case specifics with you and give you some ideas to consider. For example, does the offer seem fair given the medical bills that you had? Does the offer reflect any future treatment that you may need?
Insurance companies don’t often make fair offers but believe it or not sometimes they do just to close out their files and lessen their workload. It’s never to do you a kindness and always because it is in their best interest. Your attorney is should be familiar with personal injury offers and can help empower you to make the best decision for you, your case, your future, and your peace of mind.