Often, victims of personal injury accidents are given the options of:
A common question we see here at PainWorth is “which of the two options should I choose?”
To find the best choice for yourself, a couple of factors need to be taken into account, including:
Knowing the exact number of cases that settle versus going to trial can be challenging. However, in Canada, the percentage of personal injury cases settled outside of court is estimated to be close to 90%.
Even though most personal injury claims end up being settled outside of a court, there are situations where a case would benefit from going to trial.
Whether you’re using PainWorth to help you calculate your insurance claim, or you’ve hired a personal injury claim lawyer, you should understand the pros and cons of settlement vs trial before deciding what to do.
Compared to going to trial, settling a personal injury claim is usually much faster.
Most settlements can put a cheque in your hands soon after you have a long-term prognosis from your doctor—usually about 6 to 12 months after your injury date.
Going to trial, on the other hand, takes an average of 5.2 years in Canada, with the longest case we saw taking 23 years to reach a judgment!
If you do go to court, you may also be required to go to the courthouse during business hours to file your civil claim, and you might have to take time off to attend court hearings and trial dates.
Negotiating a settlement tends to be in a more collaborative environment, and you can always take a second to breathe and consider your options. It can be stressful at times, but we’d argue not as stressful as going to court.
Going to court faces you off against the other party. You may also need to testify in front of other people. Finally, there is a pressure to run things quickly and on schedule in court.
All said, going to court can be much more stressful than settling out of court.
Settlements tend to be cost you less than going to court.
For example, if you choose to hire a lawyer, going to court may increase your lawyers’ fees. You will also likely need to pay court filing fees and expenses related to court applications.
If you lose your case, you may even need to pay costs to the other party!
Because of this, it is sometimes better to accept a lower settlement offer outside of court, than to try to get a higher judgement at trial. This is because—once all the expenses of going to court are factored in—you may end up with more money in your pocket by settling versus going to court.
Luckily, PainWorth has a built-in feature on our claim calculations tool that can help you see which of the two options will likely result in you ending up with more money, after all expenses are paid.
While reaching a settlement can grant more control to you in the negotiation process, once a settlement is accepted, it becomes permanent regardless of your situation post-settlement.
Because of this, it is important that you have an idea of how your personal injury will or will not continue to affect you in the future before locking in a settlement offer.
In terms of going to court, it’s in the control of the judge what amount you’re awarded or not awarded.
That said, a judge won’t typically give you more than what you asked for, and—once you’ve received a judgement—you can’t go back later and ask for more.
As the plaintiff, it is important to know you can accept or deny any settlement offer presented to you. You can always try to negotiate for a better offer if you believe that you’re owed more compensation.
However, if the insurance provider suspects you are trying to be overcompensated, they can also reduce their settlement offer or refuse to pay together. This may force you to take your case to trial, because the other party refuses to settle with you.
By using PainWorth to calculate what a fair insurance settlement offer may be for your claim, you can have more productive negotiations and avoid being forced to trial.
In many jurisdictions, there is generally (with some exceptions) a time limit of 2 years from the date of your accident to file a lawsuit.
If you find yourself negotiating a settlement for longer than 2 years but never actually sue the other party, you can end up losing your right to sue, your right to a settlement, and be denied your claim if the defendant decides to walk away after 2 years.
What this means is that—even if want to settle outside of court—you may still need to start the legal process of suing the other party (even if you never end up going to court) to protect your rights to compensation.
There is always a chance you may not win your case—wasting your time and money.
For this reason, people don’t usually pursue a personal injury case in court unless they are sure that they’ll win.
Each case is unique, but choosing to settle outside of court could be the best option for you if you’re not 100% sure that you would win in court.
Depending on the complexity or uniqueness of your case, proving liability, negligence, or knowing exactly what your claim is worth might be difficult.
In these cases, going to trial to have a judge or jury determine the outcome of the case will be more decisive.
If you have a particularly complex case, you may want to hire an attorney or contact a legal aid organization for free legal assistance.
That said, be aware that lawyers' contingency fees often increase if the case is brought all the way to trial versus settled out of court.
So, if you’re represented by a lawyer, you may be able to save some lawyer fees by settling rather than going to trial.
If the other party is not willing to negotiate with you or offer you what your claim is worth, then going to court may allow you to plead your case and receive the compensation you deserve.
When settlement negotiations break down, you and the other party can also agree to go to mediation or arbitration, rather than going to court.
This is also known as alternative dispute resolution (ADR) and can be quicker and simpler than court when initial settlement negotiations do not work.
Compared to filing a lawsuit, ADR is cheaper, requires fewer formal steps, is less stressful, and provides more control to both parties in the dispute resolution process.
Some courts even require that the parties attempt ADR before they are allowed to file a lawsuit!
To find out more about ADR and all the options available when you have a personal injury claim, visit our claims escalation tool, here.
