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

B.  Trials

If settlement cannot be reached in a case, and a final trial date has been set, the attorneys come to court and are assigned to a  room where a “jury panel”, usually numbering about fifteen people from the larger jury pool, are also sent.   The attorneys take turns introducing the case and then proceed to ask questions of each of the potential jurors.  Some jurors are dismissed “for cause,” which means there is a valid legal reason to prevent that juror from sitting on the jury.  Since the aim of each attorney is to try and have a jury composed of as many individuals the attorney perceives will be favorable to their client at trial, the attorney has at his/her disposal a number (often three) of “peremptory challenges” which allow the attorneys to exclude a juror without cause.  Once those challenges are exhausted, however, the attorney will be compelled to take everyone else, other than those that can be excused “for cause”.   Arguments regarding the dismissal of jurors are referred to a judge to resolve.

Once the jury is selected, the jurors and the attorneys go to an assigned courtroom (in some jurisdictions the selection of the jurors takes place in the assigned courtroom) with an assigned judge.

After preliminary procedures are attended to, each attorney is given an opportunity to make an “Opening Statement” to the jury.   The trial then continues with the Plaintiff presenting the Plaintiff’s Case.  This will usually consist of testimony from the Plaintiff, possible witnesses, and “Expert Testimony”.   Expert Testimony can involve testimony given by treating physicians, experts in economics discussing the future earning losses of the Plaintiff, or experts in other fields such as product or roadway  design,  police procedures, etc.   The Defendant’s attorney has the opportunity to Cross Examine every one of the Plaintiff’s witnesses, as the Plaintiff will do when the Defendant presents its case.

At the conclusion of both the Plaintiff’s and Defendant’s cases, the Trial Judge will give a “Jury Charge”.  Instructions are given to the jury as to the rules of law the jury MUST apply when it considers all  the evidence, oral and tangible exhibits, that was presented to it during the trial.  The jury then deliberates.  In a civil trial there are normally six jurors (with two alternates that are dismissed when the matter goes to the jury).

Laymen are usually not aware of the fact that the decision of the jury may not be the final word.

The judge can play a major role in restructuring or changing the determination of a jury if the judge considers that the decision of the jury contradicts a viable legal reason for sustaining the “VERDICT” of the jury.   VERDICTS can be “set aside” “as against the weight of the evidence” and money damages awarded by a jury can be increased or decreased by a judge.   Keep in mind, too, that any action a judge takes can serve as the basis of an APPEAL to a higher court.  Appeals, however, are costly and time consuming, and are usually not resorted to under other than extraordinary circumstances.

People are very concerned about the choice of a surgeon when contemplating surgery.  A person should be no less concerned about the abilities of an attorney they choose.  Often, the expertise and reputation of your attorney can result in a favorable settlement, thereby avoiding a trial, but if a trial becomes necessary, the attorney you choose may also be crucial. At The Orlow Firm we have over 30 years experience with helping you get the most from your case. Contact one of our New York City Personal Injury Attorneys today for a consultation.


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.