Before You Settle Your Personal Injury Lawsuit

It seems obvious, but many injury victims do not fully understand that the compensation you receive from a car accident can be crucial in determining the quality of your future life. Therefore, a proposed settlement should not be accepted lightly. To make prudent and informed decisions about your future, you need to understand whether the defendant’s offer is fair and reasonable in all the circumstances. To this end, all plaintiffs should consider the following:

• -What are the strengths and weaknesses of my case?
• -What are my realistic chances of a better outcome?
• -What are the consequences of rejecting the proposed settlement?
• -What are my needs and expectations?
• -Does the proposed settlement provide for my needs?
• -What other sources of financial support are available for my future needs?

Additional questions are raised if you or your loved one is a plaintiff under a (legal) disability – either a minor or an adult who is not capable of making decisions on their own behalf (discussed below).

Every Case is Unique

Generally, car accident and other injury lawsuits share many common elements. Most plaintiffs continue to suffer from ongoing impairments and limitations that might interfere with their ability to care for themselves, or return to work, care for their children, maintain their homes and perform their daily activities. Otherwise, it would not be necessary or even worthwhile to sue the at-fault driver.

Despite these common elements, though, every plaintiff’s case is unique to its own facts. Sometimes, an injury victim’s right to compensation is obvious, based on clear evidence of fault against the defendant. In other claims, liability will not be clear – it might be difficult to prove, or both parties could be partially responsible.

Similarly, a plaintiff’s claim for damages can be straightforward or extremely complex. In all cases, proving your losses depends on the quality of the medical evidence showing the functional impact of your ongoing impairments. Future income loss or claims for ongoing rehabilitation, care and assistance can only be quantified based on the available data, including your past income and education, your recovery, current health, and prognosis going forward.

The nature and severity of your injuries will also contribute to the complexity of your claim. Lawsuits featuring “simple” orthopedic injuries like a broken leg that heals but causes a limp, reduced standing and walking tolerance, and ongoing pain are relatively easy to settle compared to whiplash injuries after which the plaintiff complains of chronic pain, post-concussion symptoms, depression, and anxiety, for example. Insurance companies are skeptical about so-called “invisible” injuries and will demand thorough and convincing proof before they will offer a reasonable settlement for these types of claims.

Working with your lawyer throughout the process of the lawsuit, you should have a clear understanding of your case’s strengths and weaknesses.

Assessment of Liability

The strength of your liability claim can involve issues like:

• -Whether the defendant clearly caused the accident
• -If they were charged by the police
• -Whether there are any witnesses – if so, do they all support the same version of events?

Does the evidence suggest that you could have taken steps to avoid impact, or that your actions contributed to the collision, or made it worse? If this is the case, you might need an expert report from an accident reconstruction engineer to help justify your decisions.

When liability is in dispute, your risk at trial is increased. You are forced to rely on a jury’s assessment of the evidence. They could support your version, that of the defendant or decide both of you were liable. This type of liability split (also known as contributory negligence) impacts the amount of damages you can recover. For example, if you are awarded $100,000 but the jury decides you are 50% at fault, you will only receive $50,000 from the defendant. Of course, if the jury sides completely against you, you will receive nothing, regardless of how big your losses likely will be because of the accident.

If the evidence suggests you will be found partially responsible for the accident, you should expect that the defendant will only settle after deducting a corresponding percentage from whatever total claim they accept as reasonable. In cases where the defendant refuses to accept any liability for the crash, they are unlikely to settle for anything close to your provable losses.

Settlement Roadblocks & Considerations

Regarding your damages, always bear in mind that any settlement involves a compromise between your ideal outcome (often called “your best day in court”) and the defendant’s best case where you receive nothing, or worse, you pay them legal costs after trial. Where your settlement falls between these two extremes depends on your risk tolerance, financial situation, and especially your health and prognosis.

Even when the evidence points to the defendant as the at-fault driver, a jury might not see it this way. The way the evidence comes out at court and the personalities and life circumstances of each juror introduce uncertainty into every trial. The same holds true with damages. To you, it might seem clear that you will never work again because your experts have provided compelling opinions in support. A jury could disagree, preferring the defendant’s position that you can work 24 hours per week in a job comparable to your previous occupation. You need to accept these possibilities and “roll the dice” at trial, or compromise for the sake of certain compensation by settlement at a discounted rate.

In many accident claims, injury victims cannot support themselves or their families during their recovery. This can cause incredible financial and emotional strain, despite the availability of no-fault Income Replacement Benefits and other assistance (e.g.: ODSP, short- and long-term disability plans). Unfortunately, the defendant’s insurance company knows this is a common situation and can use it as a bargaining tool, stalling the process or refusing to make serious settlement offers. They can hold out indefinitely while plaintiffs struggle to make ends meet. It is easy to see why many injury victims accept a low or unreasonable settlement instead of continuing the fight. Your lawyer should be able to provide advice that can assist you with some of the financial strain.

Health Impacts Settlement

Finally, your health impacts your settlement prospects. First, you need to be fit to endure the process, or need to have the support of family or friends who can fight alongside you. Most of the time, your participation is limited to pursuit of your ongoing recovery – attending appointments, undergoing assessments, rehabilitating and potentially work-hardening, and so on. During times of stress like Examinations for Discovery and Pre-trial you will be expected to attend and participate to your best ability. Many injury victims feel overwhelmed emotionally by the lawsuit or feel a strong desire for closure so they can move on with their lives. These concerns help determine how long you will wait, and how far you are willing to fight for just compensation. It is important to recognize the role they play in your decision-making.

Your health also determines your settlement potential in a literal way. The more your injuries and impairments limit your daily life compared to your pre-accident experience, the higher your range of reasonable settlement values will be. Again, however, these functional limitations must be demonstrated convincingly before the defendant’s insurer will agree to compensate you for them. So, the stronger and more consistent your evidence, the greater your chances of a successful settlement. Problems like gaps in treatment, a weak causal connection between the injuries and the accident, or contradictory evidence and surveillance can undermine all or part of your damages claim. Discounting your settlement proposal to account for these potential problems might be necessary for successful resolution.

If you or someone you love has been in a serious accident, we want to help you get the compensation you deserve. Call us toll free at 855-351-1115 for your free, no obligation consultation.

Click here to learn about Receiving a Settlement in Ontario Injury Lawsuits