Assessing Your Risk In Personal Injury Litigation

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:

Case Size

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.

Other Factors

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 net recovery.

For more on comparative negligence, see my article titled What If You're At Fault Too?