The best settlements happen when you have a good case, a real injury, and have followed your lawyer and doctor’s recommendations. You have been the most honest and best version of yourself that you can, and you have a lawyer who is prepared and willing to take the case to trial (if needed).
With this said, I thought it helpful to explain what I call settlement rhythm. Settlement rhythm, as I am using the term, means those times in a case where settlement becomes more likely and/or the timing to try and settle the case is optimal. After lawyers become experienced and have practiced personal injury law for many years, you become entuned to this rhythm. Imagine a surfer on a wave. The surfer’s goal is not to fight the wave or fight the ocean, but to flow with it as much as possible. Another analogy is somebody trying to make money in the stock market. Imagine a graph of a stock that goes up, goes down and then goes up again. Obviously, the investor wants to sell the stock when it has gone up (When the up rhythm is optimal). A settlement rhythm is similar, meaning certain times during the handling of the case are more ideal to settle the case than others, and knowing when and how comes with experience.
The chart below shows how poor my Excel skills are but gives an idea (Ignore the numbers. This chart is simply meant to show different time periods in a lawsuit. Each time period could be the right time to try and settle, depending on the case).
Let’s use some examples. While every case is different, the first opportunity to consider case settlement might be before a lawsuit is filed (Generally after the conclusion of medical treatment or having reached maximum medical Improvement). The advantage is that case costs are low, the settlement happens quickly and without the hassle and risk of a lawsuit; and the victim who has been injured can try to close the case sooner rather than later and try to move on with their life; however, insurance companies often low-ball cases, especially pre-lawsuit. Sometimes the insurance company legitimately needs more information before being able to properly decide. They want their lawyer to utilize the lawsuit discovery process to obtain more information and perhaps later they will offer more money.
Sometimes just filing a lawsuit will bring a better settlement offer. (Do you know which companies this happens with?).
Many times, after the injured person's deposition has taken place, that can be a good time to try and settle the case. You can think of these different time periods or major case events as up or down periods on the chart or waves in the ocean. We are trying to figure out when the settlement rhythm is best and try to get the case resolved at that time.
Sometimes the insurance company wants a defense medical exam, wherein they will have you examined by one or more of their insurance company doctors. Sometimes after the major case event of a defense medical exam, the settlement rhythm is favorable to try and settle.
About 70 days before trial, a request to disclose expert witnesses is requested. Each side must submit their expert witness list to the other approximately 50 days before trial. Once that list is received, it is time to schedule the depositions of those experts. Taking these expert depositions can be very expensive (Think $1,500 per hour plus the cost of a court reporter, videographer, etc.). There are cases that are ripe to settle, or the settlement rhythm trends favorably, just before the taking of the expert witness depositions.
Believe it or not, certain times of the year are better for settlement (Having to do with Insurance company balance sheets, quarterly reports, etc.).
Cases can settle at any time. I have settled them on the first day of trial, after the opening statement, during trial, and even after the trial is finished. The point of this article is to show that these cases can have a rhythm and if you have a great lawyer who has experienced these rhythms, they will know when the best time to settle is.
Many clients are rightfully impatient to get their cases settled. They have been injured, missed work, and because of those injuries racked up bills. They call their lawyers constantly and want to know why the case has not been settled. If they have a lazy lawyer who has not been working hard on the case, these calls are a good idea. If they have an awesome lawyer who is actively working on the case and has kept the client reasonably updated on the case status (Not constantly updated but reasonably updated), then these calls can be frustrating and time-consuming (but part of the game). The point to understand though is that if you are lucky enough to have one of the awesome lawyers that care about you and your case and are working hard for you, the lawyer knows when the rhythm is right to try and settle the case. If you try to force settlement at a time when the rhythm is not favorable, it might still be possible to settle the case, but you will undoubtedly get less money by forcing it.
There are so many factors at play in these cases and when or if you should settle your case. The longer your case goes on after the filing of the lawsuit, the higher the lawyer's case costs are likely to be (the lawyer advances case costs but those costs come out of your settlement or trial verdict in addition to lawyer fees). Having an experienced lawyer that knows when to spend money on case costs versus when to try and settle and save case costs is a valuable thing.
Some cases must or should go to trial. Most cases that go to trial are because one side has miscalculated. This could be an injured person who ignores their lawyers' advice and thinks their case is worth more than it is, but it can also be the insurance company who miscalculates. An interesting statistic that came out about 15 years ago showed that it was the injured person who guessed wrong about the trial more often than the insurance company. With that said, if your lawyer is advising you to settle (and they are a trial lawyer as opposed to what I call a settlement lawyer) then you should listen.
Insurance companies can guess wrong as well (although they can afford to guess wrong much easier than you can). I think of a brain injury case that I took to trial a few years ago. We had a brain MRI showing damage to the brain, a huge impact car crash, liability/fault was clear, and my client had not previously injured her brain, yet for some reason, the insurance adjuster (who was pulling the strings on that case) did not believe the injured person or was just being difficult. Our trial verdict was grossly higher than both the settlement offers and the insurance limits. They simply miscalculated the evidence and jury verdict potential of the case. That case was never going to settle and just needed to be taken to trial.
The takeaway is that an experienced personal injury lawyer knows these case rhythms or major case events and knows when it might be a good time to try and settle. This is part of what you pay your lawyer to know. Another example. Mediation has gained popularity in the last ten or more years, as a way to try and settle the case. An insurance company could offer to “mediate the case”. Sometimes these mediation offers are made in good faith and the insurance company would like to try and settle the case and believes the help of an experienced mediator might make the difference or bridge the parties' settlement gap; on the other hand, sometimes the insurance company offer to mediate the case is made in bad faith with the intention of wearing the injured person down, adding to their case costs, and just making the case more difficult. Your experienced lawyer will (hopefully) know if attending mediation is a good idea or a waste of time. In the context of this article, the mediation should be set for a time where the settlement rhythm is favorable, maybe after the defense medical exam (depending on the case).
Your case is most likely to settle if your lawyer gives the insurance company an opportunity to look at all the evidence and document their file and finalize reserves. Knowing when the insurance company has this information is all part of the settlement rhythm.
Here is a final example. It is common when you have been injured, for example in a car crash, for the insurance company to call right away and try to offer $500 bucks (or insert any other unfair low-ball offer) to get you to settle quickly. 99% of the time this “fast offer” is very disingenuous and against your best interest. How are you to know how serious your injuries are (Unless obviously significant), how much your medical bills will be in the end, how much time you have missed from work, etc. right after the collision? In this situation, there is not so much a settlement rhythm, but a much too early time to decide to settle your case (at least most of the time; all cases are different).
If you have been injured through no fault of your own, find an experienced personal injury lawyer who is not afraid to take the case to trial, if needed; and who knows how to tune into the settlement rhythm to try and settle the case at the most favorable time.
Law Office of Adam Sorrells
60 Independence Circle, Suite 100
530-893-9900
Chico, CA 95973
www.chicopersonalinjury.com