A 2008 study from the Wharton School of the University of Pennsylvania, published in the Journal of Empirical Legal Studies, presents evidence that it may in fact be in the best interest of a personal injury plaintiff to settle out of court. In fact, in 61.2 percent of the cases studied, plaintiffs walked away from a trial with less than what the defendant had offerend in pre-trial negotiations. The study was conducted to enhance and update three previously conducted studies of a similar nature. The historical data, combined with the latest study, points to a moderately increasing trend of plaintiff error.
Another interesting finding of the study shows that the incidence of plaintiff error is more significantly affected by variables such as the type of case being heard as opposed to “actor” variables which include the attorney’s gender and level of experience. According to the study, plaintiffs of personal injury and medical malpractice cases are the most likely to walk away from a trial with less than the defendant’s final settlement offer. In fact, medical malpractice plaintiffs are in error of going to trial in 80.8 percent of cases.
As a personal injury attorney handling cases in Charlottesville and across Virginia, I have some thoughts as to why this may be the case. First, juries have appeared to be much more conservative over the past 10-15 years. Second, the time to get a case to a jury often takes between 1-2 years. courts have back logs and criminal cases sometimes must take precedent. Third is cost. To try a case before a jury, you will likely need your family physicians to testify. That, coupled with the other expenses, means that at a minumum, you will need to spend a few thousand dollars. In more complex cases, the costs quickly go into the tens of thousands of dollars.
It is often a difficult and emotional choice to decide to settle. You are so personally involved that it is hard to see your case as a juror would. while I prepare my clients’ cases to be tried, and often try their cases, there is no doubt that sometimes the best choice is to resolve the matter before the actual trial.
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