ANSWER: The primary tool used to settle a case is the Settlement Brochure which lays out your case for the other side to evaluate and makes a monetary settlement demand based on this anticipated evidence. A great deal of preparation goes into any effective brochure because it requires that the case be fully investigated, researched and documented before the brochure can be prepared. A Settlement Brochure typically contains:
- A description of the accident with supporting documentation;
- Identification of the legal theories which will be pursued in litigation;
- Research supporting the other side’s liability for these claims;
- Any important factual support showing fault that is appropriate to reveal in negotiations;
- Your complete medical history, including all relevant medical records and bills, both before and after the accident;
- A full evaluation of any lost income claim beginning with past earnings history and potentially including an expert economic analysis of future lost income;
- A description of what effect the accident has had on your life, as well as that of your family including pictures, videotapes and other visual documentation;
- And finally, an opening settlement demand for fair and adequate compensation.
Depending upon the facts of the case the demand letter may be written in a way to create a potential excess claim if your damages exceed the policy limits or to make sure you obtain prejudgment interest if trial results in a judgment greater than the settlement demand. It usually takes several months to collect the necessary information to prepare a Settlement Brochure and typically the defendant is given 60 days to respond so that you can recover statutory interest if the case is not settled. Once you have made a settlement demand, the ball is in the other side’s court. They may indicate an interest in settling the case through their response or you may receive no response at all as there is no legal obligation for the other side to respond. In the first scenario we will negotiate settlement with the other side to arrive at a mutually acceptable figure. This may require the parties to go back and forth a number of times, each time only with your authority. In the second scenario, we simply file suit and proceed with litigation. The potential for and amount of a settlement depends upon on the lawyers’ reputation regarding litigation and trial of cases. If the insurance company knows that the lawyer will never try a case then it will merely make a low ball offer knowing eventually it will be accepted. On the other hand, if the insurance company knows that the lawyer will try a particular case then its offer will be much more realistic in comparison to what they stand to lose if the case if tried. As previously mentioned, the great majority of cases are settled because reasonable minds realize this is a much more economical way of resolving disputes. But in the small percentage of cases that do not settle, you and your attorney have to be ready to go to trial.