This is one of the more frequently asked questions I hear during the initial client interview. It's a major concern for my clients, because most folks want to go through a trial like they want a root canal.
Settlements "out of court" are always preferred, but it only makes sense if the offer truly reflects a fair trade value for all the hardships an auto or motorcycle accident victim endures. The good news is that in these type cases, the overwhelming majority will settle without having to go to trial.
But what about the remaining 10%? How does a personal injury attorney know which cases will require filing a lawsuit and possibly going the distance, in the form of a jury trial? An example may shed some light on this.
My client was involved in a bad broadside crash. She had numerous fractures and a few herniated discs. She spent 6 months in rigorous rehab trying to recover from her injuries. The at fault party's insurance company was notorious for making lousy offers in these type cases. Knowing this, I informed her at the initial meeting that the odds were fairly good that we'd have to file a lawsuit because I anticipated a less than optimal offer.
True to form, the insurance company made a lousy offer. In fact, it was insulting. So we immediately filed a lawsuit. We took some depositions and then attended a court ordered mediation. A mediation is an informal process where the parties meet with a mediator, who tries to see if the parties can agree on a fair compromise and settle the case. The adjuster for the at fault party's insurance company was there, which is typical.
The mediation lasted 28 minutes. The insurance company increased it's offer by a whopping $750 from its previous incredibly stupid and lousy offer. We were headed for trial.
We went to trial, and the jury returned a verdict that SUBSTANTIALLY beat the insurance company's last offer. Why is this important? Because when you are choosing an attorney to represent you, you need to know there are many personal injury firms that will NEVER go to trial, and probably couldn't even find the courtroom with Google Maps. Many are what I call "settlement mills," meaning they extract the highest offer from the insurance company, and convince or even strong arm the client to accept it, even if the offer stinks.
These firms either don't want to be bothered with the increased work associated with going to trial, or are afraid to try a case. And the dirty secret is that many "personal injury" firms boast that they are "aggressive" or will "fight" for their clients. That's why the majority of attorney advertising is about as useless as eating a meal consisting of cotton candy with a side of circus peanuts. Little to no caloric value or substance, and no ability for the client to decipher whether the firm they've hired are paper tigers, or can or will actually go the distance if necessary.
There's a saying that applies to this business: "You gotta know when to hold em and when to fold em." What you don't want is an attorney that always folds them, no matter what, and does a real disservice to the client.