When you hire a lawyer to represent you, you may have a brave, hero-like vision of your lawyer cross-examining the person who hit you. Since movies are a lot of times most peoples’ first encounter with what happens during a trial, this vision generally closely resembles the riveting and suspenseful scenes from beloved big screen courtroom classics like A Few Good Men with Tom Cruise as Lt. Daniel Kaffee or Legally Blonde with Reese Witherspoon as Elle Woods. Movies where lawyers who fight for the little guy confidently march into the courtroom delivering jaw-dropping, cloud-parting depictions of the truth, take home well-deserved wins for their clients and leave defense attorneys’ heads’ spinning in their wake.
After a life-changing injury brought on by someone’s negligence, it can be hard not to hope for the story-book happy endings we see in these movies. After going through so much with trying to get the treatment you’ve needed and the insurance company not paying, it’s natural to want the negligent and responsible parties to have to face a judge and jury and to want your lawyer to put the fear of God into all parties against you. But what is “natural,” is not always what makes good sense. Movies rarely show people the true costs of an actual “day in court.”
Though Rocky and our team of Gladiators in Suits at Rocky McElhaney Law Firm are experienced trial lawyers that are tough as nails and have outperformed many TV attorneys in real-life for real clients at real trials and brought home precedent-setting verdicts, taking every case to court is not always what is best for our clients for several reasons. In fact, the vast majority of personal injury cases where lawsuits have been filed are settled before trial, with only a small percentage that are actually tried in court.
A qualified attorney will be able to disseminate at a certain point in your case whether he thinks it would be in your best interests to go to trial. A trial date is set when all other options to negotiate a settlement have been exhausted by both parties. Factors to be considered when determining the successfulness of your case at a trial include the following:
1. How much insurance is available?: For example, You have $40,000 in medical expenses and the liability insurance carrier (the Defendant’s insurance) is willing to settle your case for $95,000 of $100,000 policy. It makes more sense for your car accident lawyer to accept the $95K settlement than to take your case to court for only $5,000 more dollars as all the costs of a trial well exceed that amount. When there is not enough insurance-either liability or uninsured/underinsured coverage, there generally isn’t any additional money to recoup unless the Defendant has significant assets that your attorney can find and collect. However, it is rare for a party with great assets to have insufficient coverage and those with lesser coverage general don’t have any assets to collect.
2. What is the true value of your case?: What are your total medical expenses, future medical expenses and value of your pain and suffering? Is there the potential to sue for punitive damages? What proof would be needed beyond medical records to prove your case to a jury? Expert witnesses are individuals like doctors, specialists, economists, psychiatrists and psychologists, scene reconstructionists and engineers that your lawyer may have to hire to testify to the degree of harm that has come to you do to your wreck. Many of these professionals require an upwards of $1,500 to testify at trial and this does not include the rate they charged to review your file and draw their conclusions, speak with your attorney about the case or have their deposition taken. If the anticipated case expenses of hiring these experts and obtaining the medical proof necessary to prove your case to a Judge and jury exceeds what you would reasonable settle for your attorney might advise you that trial is not the best route for your case.
3. Does the client have the time?: In the movies trials come up quickly because you only have an hour and a half time frame to fit it all in. In real-life however, if a settlement is not reached at mediation a trial date is generally set for at least 6 months to a year out from that date. A lawyer may weigh the costs of the financial burden that waiting for your day in court would be on your physical, emotional and mental health and that of your family. If gap of time would create a worsened or unhealthy situation for you, the attorney might advise you to take the highest offer on the table to mitigate current financial woes or get the treatment you need.
4. The Devil’s advocate factor: An attorney often has to play Devil’s advocate with a client in order to determine how the Defense might paint them in front of a jury. You would be mistaken if you think just because your car wreck was completely the other person’s fault that the Defense attorney is not going to attempt to break down your character and credibility. The “relate-ability” and believability of your story on the stand an important component to illustrating for the jury all the ways your car wreck has effected your life. Of course, this also works in reverse. If the Defendant is apathetic, rude, inappropriate or has a record to hide, putting him/her on the stand may be something to be considered as his/her poor character may lend more credibility to your case against them.
5. Does the insurance company want to play ball?: Sometimes the insurance company wants to negotiate and because of the great preparation we take in getting what we need to prove or client’s damages, our back-end investigative work and our legal prowess and experience in dealing with aggressive insurance companies; we know how to get them to bend to our demands where many law firms give in. However, there are some cases that attorneys know immediately that there will be no chance for negotiating and will need to be set for trial.
Not going to trial doesn’t necessarily mean your lawyer hasn’t been living up to your brave, hero-like vision of valiantly fighting for justice for you in your case. Quite the contrary, it may mean that he/she has evaluated every angle, crunched every number, scrutinized over medical records and documents, talked to every witness, painstakingly sifted through every law in the book and aggressively negotiated fair and reasonable settlement for your injuries. At Rocky McElhaney Law Firm, there is no case that doesn’t get that same attention. There may be no glorious moment in court where Rocky or any one of our talented attorneys make the Defense lawyers sweat but you can have confidence in knowing that a quiet, diligent battle for your best interests is going on behind the scenes at the firm every day. No matter where the arena, we fight for you. (615) 425-2500.