ACHIEVING THE BEST POSSIBLE SETTLEMENT VALUES IN A LAWSUIT
Most people are aware that a high number of legal matters dealing with various issues (family law, contract law, personal injury, etc.) settle between parties before the case being decided by a judge or jury. The fact is that most cases do end of up settling between parties before reaching a verdict, and cases settle at all stages of litigation, including during trial but before the verdict. With that in mind, it's important that prospective clients understand the dynamics of settlement, and ways to achieve the best possible settlement if the case is not decided by judge and/or jury.
The first thing to determine is whether on not a case exists. In each cause of action for a civil suit, the person bringing the case must prove (beyond the preponderance of the evidence) the elements of the cause of action. For a negligence case, that means showing the other party had a duty and breached that duty AND that the breach of duty was the proximate cause of damages being claimed. All four of the elements must be proven, and they must tie together. In some cases, the other side may have breached a duty, and that breach can be shown as the proximate cause of some kind of damages. The question remains as to what value to reasonably place on the damages. After being rear-ended by another car, one can honestly claim the EMS transportation to the emergency room and evaluation. If no injuries were found at the ER (broken bones, etc.), a value could still be placed on pain and suffering and possible lost wages from missing work. This analysis can become more difficult with complex medical claims and pre-existing injuries.
If the elements can be reasonably proven by the preponderance of the evidence, the next thing to determine is what would reasonably be expected if the case were to be tried in court and decided by a jury. As most lawyers would tell you during the initial consultation, the venue of where the lawsuit would be filed is a critical consideration. Assuming the case would be in state court jurisdiction, the venue (in South Carolina) is either where the incident (car wreck, etc.) took place or the residence of the defendant. Some venues will have a jury pool which is either going to be more sympathetic to those bringing suit, or more sympathetic to those defending suits. This would not matter with family court issues like divorce, as those cases will be determined by judges. However, for cases going to the court of common pleas and eventually tried in front of a jury, this is critical in determining what would reasonably happen.
The usual start of settlement negotiations begins after obtaining the basic information: Information about what happened, why the other side is liable for the damages, the extent of those damages, as well as evidence which could be presented to prove the case. Many times, the most critical information in the initial "demand letter" is the medical documentation proving the damages. This is both the medical records and billing information. A key medical component of damages is a prognosis for future and/or permanent medical damages.
During the stage of negotiations before the demand letter, The party and lawyer should discuss the reasonable value of the case and the "BATNA" or better alternative to a negotiated settlement. This is commonly referred to as the walk away number, in which negotiations stop and the other side is told: "See you in court." It is always the best strategy to keep room to maneuver, and therefore any initial offer or counter-offer should reasonably be made with that in mind. This is commonly referred to as "high balling" and "low balling." Also, understand that even if settlement negotiations fall through during pre-suit, negotiations can continue again after suit is filed and during litigation. Most venues require mediation prior to trial, in which a mediator assists the parties in coming to a settlement. Again, during the trial itself, parties sometimes settle.
The key to success is in knowing everything about the case, have a plan to try the case if necessary (the other side will pick up on a bluff) and having patience during negotiations. The other side wants the best possible result as well, so expect resistance and hard bargaining. Having a respected attorney who knows how to wins at trial is important, as the other side will factor that into their settlement evaluation. It's also important for the person bringing the suit to make a good impression during depositions (calm, controlled, sharp, precise, truthful). That will help show the other side they don't want to face a jury trial with a good witness.