More-often-than-not, when meeting with a new client for the first time, I am asked about the chances that their case will go all the way to a trial. The odds that any case will resolve through a jury verdict is very low. The vast majority of personal injury claims (greater than 90%) resolve at some point before a jury is empaneled to decide the case.
This statistic does not, however, tell the entire story. Although a jury trial is infrequently the vehicle by which a personal injury case is resolved, the prospect of a trial has a significant impact on the case, and particularly its value. If a case cannot be resolved, our civil justice system provides for a jury to hear the evidence, apply the law as instructed by the judge, and to decide the case. The lawyer accepting the responsibility for representing a plaintiff injured in an accident must be ready, willing, and able to actually try their client’s case should it be necessary. They need to be a trial attorney, not just a personal injury lawyer. And there is a difference.
There is no shortage of lawyers who advertise for personal injury cases offering to represent injured victims. Some say too many. While there are a number of lawyers who fit under the large umbrella of being a personal injury or plaintiff’s attorney, not of all us are trial lawyers. Why is this distinction important in light of the fact that most personal injury cases never actually go to a jury trial?
First, and perhaps most importantly, the insurance companies on the other side know which plaintiff’s firms will actually try a case. The claims handlers working for the insurance company know from their experience in other cases and by reputation which attorneys will try a case. When deciding about how much to offer to resolve a case, insurance companies factor in the likelihood that the lawyer representing the plaintiff will try the case. If the insurance company perceives, rightly or wrongly, that the lawyer representing the injured victim is not likely to try the case should it not be resolved, their offer to resolve the case is likely to be less anticipating that the plaintiff’s lawyer might not have an option other than settlement. If the plaintiff’s lawyer is a bona fide trial lawyer, the insurance company’s settlement offer is likely to reflect the fact that if the case cannot be resolved, it will be tried.
Another reason why it is important that a lawyer representing an injured victim stand ready to try the case should it not be resolved, is that a plaintiff’s lawyer must prepare the case for trial on day one. From the beginning of the case, the plaintiff’s lawyer must be thinking about what the trial will likely look like. What evidence will be needed to prove their client’s case? What are the most impactful methods for presenting that evidence? What evidence will be necessary to defeat any defenses raised? If a lawyer representing a plaintiff does not have the trial experience, putting all of the pieces together in the most impactful way can be a mighty struggle. It’s not unlike writing a report on a book you have never read. While you may find a synopsis somewhere, it’s just not going to be the same. There is no substitute for experience.
One of the best ways to ensure a plaintiff is offered top dollar in settlement of their case is to have a lawyer representing them with the resources, skills, and fortitude to take the case all the way to a jury trial if necessary. The added benefit is that if the case doesn’t settle, the plaintiff’s lawyer can confidently answer “Yes, Your Honor.” when asked if the plaintiff is ready to proceed on the first day of trial.
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