If you've been injured, and there's a settlement offer from the
other side on the table, you may be wondering whether to push forward
through litigation or to settle. Every case is different and requires
specific evaluation. In general, though, you should assess a variety of
factors, including the following:
How big is the case? Litigation can be very expensive and you, the injured
party, ultimately foot the bill for costs. You should understand what
your costs are at the time of the settlement offer and what your costs
may be if litigation is pursued. Along the same lines, attorney's
fees often go up as a case nears trial. What will your attorney's
fees be if you continue? Determine costs and fees now and project costs
and fees later. This will tell
you what you will need to gain by pursuing litigation. Injury cases are
about economics; your goal should be maximizing your net recovery.
More Now Or More Later?
What likelihood is there that you will gain more if you wait until later
to settle or go to trial? This is a question that no one can answer with
certainty. This is the nature of our system and the uncertainty of the
outcome of your case is based upon the fact that there are so many variables
that go into any contested hearing.
Here are some other factors to consider in assessing whether to litigate
or to settle:
Stress. Will litigating your case through contested hearing create a great deal
of stress for you? How much is it worth to forego the stress, preserve
your health and resolve your case with certainty?
Comparative negligence. Is there a possibility that you contributed in some manner to the situation
which led to your injuries? In Nevada, you are barred from recovery if
your own negligence exceeds the adverse party's negligence. Otherwise,
your award may be reduced by that percentage of negligence attributable to you.
Perception of reality. In our society, appearances and presentation count. The way a judge or
jury perceives the litigants matters and could make a difference.
Time. It takes time to get an arbitration or a trial done and any party can then
appeal. The Nevada Supreme Court can take years to hear a case. How long
are you willing to wait for your money?
Principle. If you are determined to pursue your injury case on principle alone, you
may be pursuing your case for the wrong reason. Civil injury cases can
help to affect societal change, but more often than not injury victims
are better served by focusing on the economics of a case and maximizing
For more on comparative negligence, see my article titled What If You're
At Fault Too?