Negotiating Your Personal Injury Claim
*This is the third post in our series, The Life of a Personal Injury Case…. From accident to settlement or trial.
When you are injured in a car accident, slip and fall or some other incident, you may be able to bring a personal injury claim against the person or people at fault for your injuries (See our earlier Blog, Do I have a personal injury case? for more information on whether you have a valid claim). One common question is how long it takes to reach a settlement in a personal injury case. You may also be wondering whether settling is the best way to resolve your case. This blog offers insight to help you decide the best course of action in your case.
When Should I Begin Negotiating a Settlement?
The ideal time to begin negotiating your personal injury claim is once you have a clear understanding of the full extent of your injuries and losses. Recovery takes time, and it may take even longer to recognize all the ways the injury has affected you. While some injuries, like broken bones, are immediately evident, others, such as concussions or psychological impacts like PTSD, may only surface later.
Additionally, symptoms may not become clear until you resume normal activities. For instance, focusing on a severe injury, such as a back injury requiring surgery, might delay recognizing other issues like cognitive challenges or mental health symptoms.
If you have finished treatment and your injuries have healed, and you have returned to work and regular activities, you are likely in a good position to evaluate your claim and capture all your losses. For less serious injuries that resolve within a year, we often recommend waiting 12 months to ensure all injuries and losses have been identified.
Many people unfortunately suffer from injuries that do not resolve within one year. While it is not necessary to wait until your injuries are completely resolved and treatment has finished, if your condition is still evolving it is wise to wait until you have a clearer picture of your future needs. This includes understanding how much more treatment you likely require, whether you will experience ongoing symptoms, and if any impairments are likely to be permanent. We often recommend requesting a medical report from your doctor or other healthcare providers to answer these key questions.
If you are unable to work because of your injuries, before attempting settlement negotiations it is important to assess whether and when you can return to work, and if further time off may be required. In many cases, we recommend waiting to negotiate until you have returned to work and feel reasonably confident in your ability to perform all your job duties, or we have evidence you will likely never be able to return to work. We may seek medical opinions to understand the impact your injuries have had on your ability to work including whether you are permanently disabled from work and/or the likelihood that you will require additional time off work for future surgery, appointments, pain/limitations or some future progression of your injury such as arthritis developing at your injury site.
Once we understand your prognosis and have appropriately documented your losses, we can consider settlement of your claim. Taking the time to assess your situation fully ensures we secure the compensation you need for current and future impacts.
Should I Accept a Settlement Offer?
Reaching an out-of-court settlement offers many advantages, and we almost always recommend accepting a reasonable offer before trial if possible. Whether a settlement is “fair” depends on factors unique to each individual’s situation, but there are four key benefits to resolving your claim out of court:
1) Closure: A settlement brings finality to your claim, which can come with great psychological relief and closure. Litigation is stressful and can be all-consuming. Legal disputes can be especially overwhelming while managing your injuries and related losses. Settling allows you to move forward and the psychological relief of “putting it all behind you” can be invaluable. Settling may mean avoiding the next stages of litigation, such as discovery hearings, court motions or Independent Medical Examinations.
2) Certainty: The award is certain when you accept a settlement. You are part of the process. You get to decide whether you are willing to take the offer on the table and make arguments as to why it may or may not be adequate compensation (with the assistance and advice of your lawyer). In contrast, a trial leaves the decision entirely in the hands of a judge or jury, who will decide both liability (fault for the accident) and the amount of money you will receive. You have no control. If you are unhappy with the result, your only option is to appeal - an expensive and time-consuming process. The defendant also has the option to appeal the trial outcome which leads to further delay and uncertainty, even if initially successful at trial. In cases where liability is disputed, settling can mean you avoid the risk of receiving little to no compensation at trial.
3) Financial/Time: Accepting a settlement offer provides money in your pocket now, whereas trials (and potential appeals) can take many years to conclude. During that time, you will incur increased expenses (known as disbursements) and interest, which can be substantial if expert assessment and testimony is required. Your legal fees will also likely increase, depending on your agreement with your lawyer. Waiting for a trial may mean you obtain a larger settlement or award but see less in your pocket because of the increased legal fees, disbursements and interest.
4) Avoiding the Stress of a Trial: Trials are extremely stressful, often requiring you, your family, friends, and medical providers to testify. Trials are public, meaning your name will appear on the court’s website, and anyone can attend to watch. If the judge writes a decision, it will be published, along with the specific personal details of your case, on legal platforms like CanLii, a free online database accessible to the public. Additionally, trial outcomes are not immediate. It is not uncommon to wait many months for a decision. Even if you win, the other side may appeal.
Trials are also expensive. Costs for transcripts, expert fees, photocopying and other disbursements add up quickly. If you lose, the court will likely award costs against you, leaving you without compensation and being ordered to pay a contribution to the defendant’s legal costs.
Trials are risky and unpredictable. A judge or jury may not see things your way, even with strong arguments from your lawyer. There’s always a risk they will side with the defendant. You are putting your fate into the hands of a judge or jury. Your lawyer advocates for your position. However, the defendant(s) lawyer(s) will advocate for their client’s position. You do not know which side will persuade the judge or jury.
To reach a fair settlement, both parties must be willing to make compromises while considering the risks outlined above. In some cases, a party may act unreasonably, or both sides may genuinely believe so strongly in their different perspectives that they require a judge’s or jury’s decision. However, in most cases, a fair settlement can be reached before entering the courtroom. We encourage you to discuss your questions and concerns thoroughly with your lawyer and carefully consider their advice about whether to accept a settlement. Ultimately, the final decision is yours based on your own personal, individual situation and risk tolerance. Your lawyer can provide valuable advice to help you make this important decision.
The lawyers at Carter Simpson are experienced, passionate, and devoted to assisting those who have been injured in motor vehicle collisions and other types of accidents. We will advocate on your behalf with the insurance company to obtain a fair settlement of your claim or, if necessary, carry out the necessary steps in the litigation to conclude your matter.