Settling a spinal cord injury lawsuit might not be as exciting as the drama of selecting a jury, cross-examining the other side, and eagerly awaiting a jury verdict. But it's often the best outcome. A settlement allows you to get paid more quickly, and helps you avoid the uncertainties of trial. After all, if just one juror doesn't like or believe you, he or she could taint the entire jury pool. Moreover, the process of going to trial can take years. Even if you win, the other side could appeal, endlessly dragging out the process.
Unlike the march toward trial, there's no specific process you must follow to settle your case. Your case could settle anytime, from before you even file suit to just before trial.
Here's what you can expect from the settlement process.
When Might My Case Settle?
A settlement is simply a contract between you and the other side agreeing to end your lawsuit. That means you can settle your case at any time. Some common times for settlement include:
- Before filing a lawsuit, but after hiring a lawyer: If you have a very compelling case that you are likely to win, the other side might offer an early settlement to avoid the exposure of litigation and the risk of negative publicity.
- After filing your complaint: If your complaint makes a compelling case and there is little the other side can do to answer your allegations, they might offer you a settlement. These early settlements help the other party reduce their liability for attorney's fees, which tend to get pricier as a case drags on.
- When new evidence appears: Discovery is the process through which both parties learn more about the case. Lawyers might not know how strong or weak a client's case is until discovery—which includes depositions, requests for production of documents, interrogatories, and other legal procedures for uncovering evidence—is complete. If important evidence strengthens your case or undermines a key claim the other side is making, they might offer you a settlement.
- After important motions: Motions are court filings addressing legal issues in your case. If you win an important motion, this can change the scope of your case and make it very difficult for the other side to win. One of the most common times for settlement negotiations is after a judge has ruled on a motion for summary judgment. Motions for summary judgment (MSJ) argue that there are no substantive factual disputes, and that one party should win based solely on what the law says. If the other side's MSJ is dismissed, they have a compelling reason to settle, since a costly trial is often the next step.
How Do Settlement Negotiations Work?
Settlement negotiations can be formal or informal. Informal settlement negotiations are often ongoing throughout a case. Your lawyer might periodically check with the other side to see if they want to offer a reasonable settlement, or send a letter every few months offering a settlement in a spinal cord injury case.
Formal settlement negotiations follow a more structured process in mediation. Mediation is typically voluntary, but in some cases a judge might order you to go to mediation. Even if mediation is court-ordered, you are under no obligation to accept a settlement, but you must show up for the mediation session.
In mediation, both sides will have a chance to present their case, including both legal and factual issues. The mediator will encourage each side to see weaknesses in its case, offer insight into the potential value of the case, and address impasses. For instance, if you are very angry about a car accident, the mediator might suggest that the other side apologize. This, in turn, might encourage you to accept a slightly lower settlement offer.
If you reach a settlement in mediation, that settlement will still have to be formalized in a signed settlement agreement. Your settlement will not be complete until both sides have signed the agreement and met any requirements it outlines—such as signing a non-disclosure agreement (NDA) or paying a specific sum.
What Factors Increase the Likelihood That My Case Will Settle?
There's no way to predict with absolute certainty whether or not your case will settle. Maybe the other side will be so unreasonable that they are unwilling to accept any settlement at all. Perhaps your expectations are too high, rendering a settlement unlikely. Or maybe your case is so shocking that the other side will pay just about anything to avoid the negative publicity the case entails. Every case is different, and there are no guarantees. However, a number of factors tend to increase the likelihood a case will settle. Those include:
- A case that is well-documented and factually compelling; if you can easily prove your injuries and demonstrate that the other side caused them, you'll have a better chance of prevailing.
- A case that is legally compelling; local rules, recent court precedent, and the specific facts of your case can all affect whether or not it is legally strong. This is why it's so important to hire a knowledgeable SCI lawyer.
- A case that has the potential to be very valuable; if your attorney's fees will be high and the case is a big one, the other side can reduce its expenses by settling early.
- A case that may expose the other side to embarrassment and bad publicity; if the facts of your case are especially heinous, the other side might want to settle to avoid a public trial. For example, if a doctor severed your spinal cord during a routine operation, the hospital for which he or she works might push for an early and confidential settlement.
- A case with a sympathetic plaintiff; the more likable you are and the more compelling your story is, the more a jury is likely to award. Older plaintiffs, plaintiffs in poor health, plaintiffs who contributed to their own injuries, and plaintiffs who are not likable often get less at trial.
How is a Settlement Finalized?
Your settlement does not become official until both sides have signed the contract and met all of its terms. For example, if your settlement requires you to sign a non-disclosure agreement (NDA), you will not be paid until you do. In most cases settlements are finalized within 30 days of mediation.
When Will I Get Paid?
One of the nice things about a settlement is that you're guaranteed to get paid. Even if you win a jury trial, the other side might declare bankruptcy, appeal, refuse to indemnify the responsible party, or attempt to seek a lower award. Your settlement agreement will outline the timeline for payments, but you can generally expect payment within 30 days of signing the agreement.
Can a Settlement be Reversed or Disputed?
Once a settlement is signed and approved by the court, it is very difficult to reverse. The reason for this is simple: a settlement is a voluntary contract that you cannot be forced into, so courts expect parties to a settlement to hash out issues before, not after, the signing of a settlement. Your case isn't over until you've signed the settlement and been paid, so you have the right to back out up till that point.
After your settlement is finalized, your case will be dismissed, and you will not be able to re-file your case, even if new evidence comes to light. However, if either side violates one of the terms of the settlement, a new lawsuit for breach of contract might be on the horizon.
Written by Zawn VillinesZawn Villines is a writer specializing in health and legal journalism. Raised by a lawyer and lobbyist who advocated for spinal cord injury survivors, she is a lifelong advocate for spinal injury victims and their loved ones. You can connect with Zawn on Google+ below.
See what Swope, Rodante Has Done for Others With Catastrophic Injuries
“What made me most excited was to be able to help my family, being able to pull the burden out of them that they’ve been struggling with. That’s what made me feel the best. Everything else to come, is to come. And we’re going to live life how we have been, just not going to have to worry about buying the supplies that I need.”
"As I got better, which I did in the future, I think I remember researching them [Swope, Rodante P.A.] myself and found that they are very good at what they do. "