Why Personal Injury Cases Take So Long: Part V – Settlement or Trial; A: Settlements | New York Personal Injury Law

Why Personal Injury Cases Take So Long

Part V: Settlement or Trial

A. Settlements

Very rarely will a case will be settled at its earliest stages, before many of the procedures in this article have been instituted. That usually only occurs when the fault of an accident is clear, the injuries determined and an agreement as to value is reachable. An agreement to settle can be quickly reached if, for example, there is a limited insurance policy and that policy limit is less than the agreed upon value of the case.

Very frequently, however, an attempt to “SETTLE” a case will begin before the time of trial. Most often it begins when most, if not all, of the discovery in a case is completed. A settlement is reached after negotiations either between the Plaintiff’s attorney and the Defendant’s attorney, or as is very often the case, between the attorney for the Plaintiff and the adjuster assigned to the case by the insurance company.

The adjuster is almost always NOT a lawyer.

Settlement discussions usually begin with a “Demand” made by the Plaintiff’s attorney, followed by an “Offer” by the defendant’s attorney, or by the insurance company adjuster. If both sides are “within the same ballpark”, so to speak, they will continue the negotiations. Settlement negotiations then involve the presentation by each side of the strengths of their side’s case and the weaknesses of the opponent’s case.

It involves first, in establishing the “COMPARATIVE NEGLIGENCE” of each of the parties. What that simply means is that an effort is made to assess to what extent (usually expressed in simple percent terms) each party is at fault. Then the negotiators will try to assess the “DAMAGES”–that is they will try to place a “value” upon the injury sustained by the Plaintiff. Then, applying the determination regarding “COMPARATIVE NEGLIGENCE” to the value of the “DAMAGES”, a SETTLEMENT amount can be determined. (If, for example, a Plaintiff and Defendant are each deemed fifty percent at fault, and the injury is valued at $100,000, the Plaintiff is entitled to 50% of $100,000, or $50,000).

Settlement discussions can take place as late as the trial itself. In fact, very many cases are settled during the selection of a jury, since both parties probably realize at that time that the other party is “serious” regarding the stand they have taken with respect to settlement. Additionally, the presence of an assigned judge at the time of trial, who is actively involved in the attempt to settle the case, will very often produce a settlement that was not attainable till now. Defendant’s representatives are very familiar with the reputations of law firms representing Plaintiffs. They know full well those that are prepared to proceed to trial and those that habitually prefer to settle before trial. The potential client will hopefully have researched this factor BEFORE having made the choice of an attorney.
Failing all else, the trial commences..

Contact our New York City Attorneys at The Orlow Firm for more information.


New York Construction Accident Injures Two Workers in Pelham

New York School Roof Collapse Injures Two; One Seriously

The roof of a Pelham elementary school collapsed Saturday afternoon, injuring two construction workers.

According to Pelham Police Chief Joseph Benefico, Colonial School at 315 Highbrook Avenue in Pelham was in the process of an addition when a front wall gave causing a roof collapse and the injury of two construction accident workers, Workers were cutting the first floor when the accident happened on Saturday, October 31st, 2009.

Superintendent Dennis Lauro and Colonial’s Principal Janet Rothstein wrote in a letter

“Our architects and school officials are conferencing with the New York State Education Department, which must give us clearance to re-open school. Based on the inspection on Saturday, the building is deemed safe. We are also planning a second engineering inspection as an extra precaution. In addition, our Board Construction Steering Committee would like to have the demolition work completed and the site cleared before reopening Colonial.” The letter promised a comprehensive memo to be released later today.

Wager Contracting Co. Inc., of New Rochelle, is the contractor for the construction project and declined to answer questions about the workers’ conditions.

Even if they Collect New York Worker’s Compensation, Construction Workers may be entitled to sue and collect an Injury Reward in New York

Despite many recent New York City construction accidents, a continued negligence of safety allows for further injuries.  As experienced Construction Site Accident Attorneys in New York we too see the same pattern over and over again. It is a shame and all of those responsible for safety should be held accountable. One thing many do not undertsand is even if they were injured and are receiving Workers Compensation for a Construction Accident in New York, they may still be entitled to sue for damages.  No matter what they think, if you or someone you know is collecting workman’s compensation for on the job injuries, especially New York Construction Accidents, they should collect contact an experienced Construction Injury Attorney,


Who is at Fault for an Accident?

Comparative Negligence

How is responsibility for an accident determined?

When someone involved in an accident relates how the accident happened, most times they attribute the “fault” for the accident to the other party.   “He was speeding while I made the left turn”; “he had the red light “, “the bulb was out on the stairway”; in each instance the presumption being that another person was the cause of the accident, and therefore the other person was “at fault”.
For those of us dealing with accidents every day, we have come to expect “two sides to every story”.   This does not necessarily mean someone is lying.  It very often means that two people just see things differently.   Police will tell you that witnesses to the very same occurrence will often see different, if not contradictory, aspects of the same event.  That is human nature.
Except for the rare situation where identifying where fault lays–for example a “rear end” auto collision–where the car being hit squarely in the rear is virtually never held to have any fault whatsoever–most cases have some apportionment of fault..  If a case goes to trial and there is a jury, then the jury will be asked to decide to what extent each party is at fault for the accident.  The jury, based on the evidence presented, can decide any combination of responsibility from 0% for one party and 100% for the other, or any percentage breakdown in between.  The jury is determining the “LIABILITY” of each party.
In the event the matter is settled before there is a trial, then the lawyers for each of the parties will have to agree on the percentage of “LIABILITY” of each party before they can reach a settlement.
The lawyers, or the jury, are comparing the negligence, or fault, of each party.  New York has a “COMPARATIVE NEGLIGENCE” system.   The negligence, or fault, of each party is apportioned.   Then, when the parties, through their lawyers, or the jury, decide how much the injury sustained by the injured party is worth, they can decide exactly how much the injured party actually will receive.  If, for example, it is determined that the fractured ankle suffered by the driver of a vehicle is  “worth” $100,000, and it is decided that the driver was himself 50% responsible, then the driver will only receive $50,000, and not the full $100,000.
Negotiating the settlement of a personal injury lawsuit is, more often than not, as important as being able to successfully take a case to trial.  As personal injury attorneys will tell you, the vast majority of lawsuits are settled before the completion of a trial.   Negotiations are crucial to obtaining a result with which the client will be satisfied and which will fairly and adequately compensate the client for his or her injury.   There is no substitute for experience and, if possible, references by previously satisfied clients, when choosing an injury attorney to represent you.

Posted by New York Accident Injury Attorney Steve Orlow