Should I sue, settle or use alternative dispute resolution (ADR)?
UPDATED: June 19, 2018
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A personal injury lawsuit requires an immense amount of time, energy, and effort. For this reason alone, many people opt to settle their cases in order to move on quickly with their lives. An ongoing lawsuit is a constant reminder that an unpleasant incident occurred in your life and has caused you to suffer some type of injury. It is also a reminder of the individual who is at fault for your injury. If you decide to take your personal injury lawsuit to trial so that it can be heard in front of a jury, you may be selecting the most expensive and lengthiest option for dispute resolution.
Preparing for Your Personal Injury Trial
To prepare for your personal injury trial, attorneys will exchange “discovery,” which refers to documents, statements, photographs, etc. that can be used as evidence during the trial. During the discovery process, attorneys will take depositions, which are essentially question and answer sessions of all witnesses who may possess relevant information to support your case or to support the opposing party’s defense.
The deposition may be difficult if the injury you suffered was the result of a traumatic incident. The attorneys will ask you to explain every minute detail of your case and your injury, including all of the treatment you have sought for your injury. This aspect of the deposition may seem more like an interrogation than a question and answer session. Additionally, during their own depositions, other witnesses will have the ability to comment on your injury and how they feel it has affected you. This can be a painful process. On the flipside, this may be your opportunity to explain how you are truly injured and why the injury is by no fault of your own.
Going to Trial
Because the discovery process can be lengthy and the parties involved need time to review all of the evidence, a trial may not take place until three or four years after filing the action with the court. Furthermore, in order to increase your chances of success with a jury, your attorney will want to hire experts in relevant fields. These experts charge for meeting with the attorneys, drafting reports, and appearing in court to give live testimony. If you are awarded any money at the end of the trial, expert fees will be deducted from any amount that may be awarded.
Exploring Settlement Offers
Settlement may be your best route. However, in considering a settlement offer, make sure the offered amount is both fair and reasonable. It will likely be far less than you would ask from a jury, but it would be a guaranteed amount instead of taking your chances with a jury. In considering whether a settlement is fair, take into account your current medical expenses and potential future medical costs. If your injury is permanent, then you will need enough money to cover your medical expenses during the course of your lifetime.
Additionally, calculate your current lost wages, and any wages you may lose in the future due to this injury. If you cannot return to your current position because of your condition, and you have to accept a lower paying job, then that difference in earnings should be reflected in your settlement. It is important to note that the first settlement offer is rarely the last. In many cases, the other party will wait until the trial is about to begin to submit the “real” settlement offer. At this point, the opposing party has realized that he/she does not want to gamble with a jury.
Choosing Alternative Dispute Resolution (ADR) Instead of a Jury Trial
Instead of heading to trial or opting for a settlement offer, you can utilize an alternate dispute resolution option, often referred to as ADR. Two common types of ADR are mediation and arbitration. While a trial can be lengthy and expensive, resolution by ADR is considered fast and cheap. Instead of waiting years for an individual to rule on the matters of the lawsuit, you may decrease the wait period to a few months. Additionally, a mediator or arbitrator may be most familiar with the area of law described in your case.
At trial, most of the time is spent educating the jury on the law and its application. The downside of ADR is that some of the safeguards given during civil trials may not be present, such as discovery rules for exchanging evidence between parties to prepare for trial. However, juries can be fickled and may hand down amplified or decreased damage awards depending on the party they liked more. You may receive a more appropriate award if you utilize ADR rather than taking a gamble on a fickled jury.
Getting Help from a Personal Injury Attorney
Whether you move forward with a personal injury trial, accept a settlement offer, or opt for ADR, you should only choose an option that you are comfortable with. Discuss all the options at length with your personal injury attorney, and make sure you are the one choosing the best course of action to help settle your personal injury case in your favor.