If your attorney can’t reach a settlement with the insurance company, there’s a good chance your case will go to trial. This is where the pros take over. Your attorney will try to persuade the judge or jury (known as “the court”) to render a verdict in your favor. The insurance company/defendant’s attorney will try to do the opposite.
At trial, you’ll be no more than a witness. Your attorney will do the rest. Trials in courts higher than small claims proceed formally under the strict rules of evidence. This is where attorneys really earn their fees. Your attorney won’t be paid unless she wins your case, and the insurance company’s attorney may not be rehired if she loses.
Unless the attorneys settle the case before you walk into the courtroom, the trial will proceed and a verdict will eventually be reached. Either you’ll be satisfied with the verdict or you won’t, and the same goes for the defendant. Both you and the defendant have the right to appeal the verdict.
If you decide to appeal, your attorney will have to agree. The contingency contract most attorneys use has a clause stating that their obligation to represent the client does not include an appeal. In all likelihood, your attorney’s obligation to represent you ends the instant the verdict is rendered. Read your contract thoroughly to confirm this.
Appeals are not automatic. If you lose at trial and your attorney believes your case is strong enough to win on appeal, she will extend your contract and continue to represent you. If not, you may have to find another attorney, or offer to pay your attorney by the hour.
To begin the appellate process, your attorney will file a notice of appeal. Your status then changes from plaintiff to appellant. The defendant becomes the appellee. Your notice of appeal will quickly be followed by a Motion to Dismiss Appeal from the defendant’s attorney.
If an appeal is dismissed, the appellant may have to pay the appellee’s attorney’s fees and court costs. For this reason, most attorneys won’t file an appeal unless they’re confident they can win. To survive a motion to dismiss, there must be evidence of a bad ruling made by the judge during trial, or an impropriety such as jury misbehavior.
Negotiations Continue During Trial
Insurance companies are experts at using an appeal as leverage to settle. They use the appellate process as a tool in their arsenal both during and after a trial. During trial, experienced attorneys can often sense how the jury is going to decide the case. This can occur due to the testimony of a witness or after a certain piece of evidence is introduced.
As a result, during breaks and recesses, both sides often get together and try to settle the case before the trial ends. Since not even the most skilled attorneys can know exactly what a court’s verdict will be, in-trial settlement negotiations are always a gamble for both sides.
If the defendant’s attorney believes the jury is leaning your way, they may make an offer to settle. The amount will probably be less than you want, but will nonetheless guarantee an end to the case. Their offer will be based on what they believe the court’s verdict might be if the trial continues. They’re trying to avoid the possibility of a high verdict.
If they make an offer, you and your attorney will have a decision to make. Do you accept the amount and walk away with at least some money, or do you take a chance and continue the trial?
If you continue, and the court’s verdict is less than the defendant offered (or nothing at all), you’ll have squandered the opportunity to take the offer. On the other hand, the verdict may not only be in your favor, but be substantially higher than the amount you asked for.
This is where your attorney’s experience and judgment comes in. You are the client, and the ultimate decision to settle or take your chances for a higher verdict is up to you. But you should always listen to your attorney – experience counts for a lot.
Threat of Appeal
The decision to settle during trial involves more than betting on what the verdict will be. The insurance company is always planning their next move. During negotiations, the company’s attorneys may say that if you don’t accept their offer and the verdict is in your favor, they will appeal the case.
“Take it or leave it,” is a phrase heard hundreds of times each day in courtrooms all over the country. If the insurance company’s attorney has stated his intention to appeal if you don’t settle, your decision will be a tough one.
Insurance companies can be (and often are) massive bullies. Their financial resources give them a dominant position in the civil court system. Because of their deep pockets, they can consistently use the threat of appeal as a bargaining tool. All you can do is hope the evidence is overwhelmingly in your favor and discourages an appeal.
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