Which Is Better: Settling or Litigating?

How to Spot Dangerous Drivers
March 12, 2021

Which Is Better: Settling or Litigating?

litigation or settlement: which is better

It depends on the situation. As a rule of thumb, settling is preferred if the defendant and their insurance company’s lawyers are willing to pay all the compensation you are seeking. That’s rarely the case when you’re owed a lot of damages.

There are never guarantees in a courtroom. A negotiated settlement offer is a sure thing; litigation is not.

Conversely, you might end up winning a lot more at trial than you could get during settlement negotiations with the defendants. There’s always a bit of chance involved with going through with a trial.

There may also be scenarios where a defendant is simply refusing to come to a reasonable settlement offer and you feel as if you have no choice but to go forward with a trial.

Your personal injury lawyer may recommend going to trial if:

  • The defense is refusing to reach a fair settlement agreement, especially when their offer is well below their liability policy limit
  • You have a particularly strong case with clear evidence of the defendant’s negligence
  • What the defense is offering won’t come close to paying off your medical bills or compensating you for pain and suffering
  • You or a loved one have suffered a debilitating injury and will require financial assistance for the remainder of your life

In cases where catastrophic injuries are involved, it’s not always easy to accurately assess the totality of your future medical and care costs. The damages your legal team seeks could be far more than an insurance company is willing to pay without putting up a fight.

Insurance companies are often dispassionately calculating during personal injury settlement negotiations. They will consider how much it will cost to defend their client in court, how much you’re willing to settle for and whether settling your case will set a bad precedent.

The insurance company may also consider whether giving you a hard time will discourage future plaintiffs and attorneys from attempting to bring similar personal injury or wrongful death cases against them in the future.

For example, tobacco companies, gun manufacturers and their lawyers have historically fought wrongful death and personal injury lawsuits. They’re more than happy to spend the money to beat a plaintiff’s case because if the plaintiff wins, it could set a precedent that will unleash a flood of similar lawsuits.

The Pros and Cons of Settling vs Trial

A trial might give you an opportunity to:

  • Win more money (depending on the defendant and their insurance)
  • Make a public point (like holding a business or hospital accountable for their actions) or affect policy changes

The potential downsides of a trial include:

  • There are no guarantees of success at trial
  • Your case will be a matter of public record unless the judge orders the records sealed
  • Trials require a lot more time and effort from your legal team, meaning you may end up paying your attorneys a lot more than you would if you settle
  • Trials are stressful and are often emotionally unpleasant
  • Defendants can appeal their loss at trial, sometimes multiple times; settlements can’t be appealed

As the Plaintiff You Must Do Your Own Calculation

Many people who are injured or who lose a loved one to wrongful death will have a ceiling on what they can recover due to the defendant’s insurance policy limit. You could go after a defendant’s personal property or garnish their wages if your damages exceed the negligent party’s coverage limits, but that’s not always easy or effective.

Plaintiff attorneys may recommend settling out of court if the insurance company is willing to pay the maximum policy limit for your injuries and damages. This still might not be enough to cover all your medical expenses or adequately compensate you for pain and suffering, but it may be all you can realistically obtain.

If you were injured by a business that’s covered by a large commercial liability policy, or the defendant who injured you has a personal umbrella policy, they might have a high policy limit. In that case you may be more inclined to roll the dice in court.

To Settle or Not to Settle

Every case is different. Settling may be the better option if:

  • Your total damages are below or equal to the defendant’s policy limit and the insurance company is willing to pay the maximum
  • There are circumstances, such as facts that may bolster the defendant’s comparative negligence defense, that could potentially jeopardize your case at trial
  • You just want to get your money and put the whole experience behind you as quickly as possible

You may prefer a trial if:

  • You feel morally compelled to hold the defendant publicly accountable
  • The defendant has a lot of liability insurance
  • The insurance company isn’t willing to settle for a fair amount

There’s no way to say for sure what is best for your case without discussing the situation with a personal injury attorney.