When one person has a legal claim against another, the result in modern times is most often some kind of settlement. In short, a settlement is an agreement by the person with the claim (who would be the plaintiff if a lawsuit were filed) to give up his or her right to sue in exchange for a payment from the person against whom the claim could be asserted (the defendant).
For instance, most personal injury lawsuits in Illinois are today resolved by alternative dispute resolution, such as negotiation, mediation, or arbitration. The injured person may not even file a lawsuit, but instead accepts a settlement payment—usually from an insurance company that covers the person who caused the injury.
Understanding the role of settlements, many people often ask a question like this: “How much is my case worth?” Or, “How much will my settlement be?”
The answer to both questions is complicated, and we often can’t give a definitive answer until long after we begin working on a case. But what we can do is explain how those amounts are determined by the parties negotiating a settlement. That’s what this post is all about.
It Starts with Damages
The goal of our legal system with respect to personal injuries is to make the injured person whole. Unfortunately, the Illinois courts cannot force a defendant to take back a physical, emotional, or mental injury after the fact. The best we can do is attempt to compensate the injured person with money. That compensation is referred to as damages.
Because the kinds of legal injuries suffered by a person as the result of a personal injury are so varied, Illinois law recognizes many different types of damages. If they can be proven, a successful plaintiff in an Illinois personal injury lawsuit can recover damages to compensate for things such as:
- Costs of medical care;
- Lost wages and lost earning capacity;
- Costs of repairing damaged property;
- Loss of consortium and loss of enjoyment of life; and
- Pain and suffering.
This list isn’t exhaustive, and some of these are easier to put a price tag on than others. But the bottom line is that whatever damages can be proven, can be recovered. That’s where any plaintiff and any defendant will start their settlement negotiations: How much could the plaintiff win if the case went to trial?
The Costs of Uncertainty
But that’s a theoretical maximum and fails to account for the uncertainty that is inherent in going to trial.
A good example of that uncertainty in personal injury trials is the burden of proof. As we’ve explained in the past, that burden is quite low: A plaintiff need only provide enough evidence to make it 51% likely that his or her claim is true. If the plaintiff can only muster evidence that makes it 50% likely the claim is true, the plaintiff loses. But jurors are not computers, and many cases could go either way.
As a result, it is often better for a plaintiff to accept a settlement offer that is below the theoretical maximum for damages than it is to go to trial and risk getting nothing. Plaintiffs and defendants understand this, and so settlements are usually some amount less than an injured person’s total damages.
Maximizing Your Settlement Requires a Lawyer
At this point, you may be thinking, “Well, why not just look at what similar cases have received?” But there are two problems with such an approach.
First, most settlements are confidential—they don’t get publicly reported anywhere. Second, every case is different, and those differences make it very difficult to compare a settlement in one case to that in another.
That said, an experienced personal injury lawyer often has a good feel for when a settlement offer should be accepted, and when an injured person should hold out for a better one, based on everything from the types of damages suffered to the quality and quantity of evidence available, to the court where any lawsuit would have to be filed.
If you’ve been injured by another person’s wrongdoing and want help building the strongest case possible and maximizing your recovery, contact the experienced attorneys of Costa Ivone in Chicago today.