The vast majority of all personal injury cases are settled before or during trial, and slip and fall cases are no different. Only a small percentage of these cases are tried to a verdict. Settlement discussions in a slip and fall case, and indeed in all personal injury cases, can drag on for months. Read on to get a sense of how settlement works in a slip and fall case.
When Will My Lawyer Generally Begin Settlement Discussions?
Once a slip and fall lawsuit has been filed, serious settlement discussions will almost never begin until the defense attorney has done all of the pretrial investigation (“discovery”) that he/she wants to do. This includes discovery tools like interrogatories and depositions. Insurance companies will rarely if ever want to engage in serious settlement negotiations until they have all of the facts that they need to make a decision.
In bigger or more complex cases, defense attorneys are generally not willing to talk seriously about settlement until after the plaintiff’s lawyer has identified the plaintiff’s expert witnesses. This is because they want to wait and see if the plaintiff’s lawyer has in fact done the work that is needed to make the case ready for trial.
In some cases, the defense attorney will file a motion for summary judgment (a motion to dismiss the lawsuit). In those cases, the defendant may not be willing to discuss settlement until after the court rules on the motion. If the court grants the motion, then the case is over; it has been dismissed. But if the court denies the motion, then it’s time to talk. Other times, the defense attorney will be willing to discuss settlement while the court is considering the motion. In settlement negotiations, every case is different.
In discussing settlement, it is the insurance company and the defense attorney who hold all the cards. They are the ones with the money. If they are not ready to talk seriously about settlement, the plaintiff and the plaintiff’s attorney will get nowhere in settlement discussions.
Good plaintiff’s lawyers don’t want to appear overeager to talk settlement because the defense attorney might interpret that as being desperate. If the defense attorney thinks that the plaintiff is desperate to settle, the defense attorney will usually make lowball offers and try to get the plaintiff to settle for far less than the case is worth. Thus, good plaintiff’s lawyers usually wait until the defense attorney asks them to make a settlement demand.
How Are Settlement Discussions Conducted?
In smaller slip and fall cases, especially when the lawyers know each other, one lawyer will just pick up the phone and talk settlement. The plaintiff’s lawyer may or may not write an actual demand letter. Then, the defense attorney may or may not respond with a counteroffer. If the defense attorney thinks that the demand was too high, he/she may simply ignore the demand or may say that the demand is too high and that the insurer will not make a counteroffer. If the defense attorney does make a counteroffer, then the bargaining begins. Sometimes the lawyers can settle it, sometimes not. If they can’t settle, they will likely go to mediation.
Mediation in a Slip and Fall Case
In larger slip and fall cases (and often in smaller cases), the lawyers and their clients will usually attend mediation. Most courts nowadays require the parties to attend mediation to try to get the case settled. Mediation can be done with either a private mediator or a judge who is not assigned to that case. The mediator meets with all sides in the beginning, and then meets separately with the plaintiff and the defendant to see if he/she can get the parties’ numbers closer together. Mediation can go on for hours or even days. Mediation does not always work, but it has a very good track record in getting cases settled.
How Long Can Settlement Negotiations Last?
Settlement negotiations can go on for a long time. You should not be discouraged by the fact that negotiations are taking so long. As long as the two lawyers are still talking, settlement negotiations can continue.
Settling the Case
If you accept the defense attorney’s settlement offer, then the case is settled. All your lawyer needs to do to let the defense attorney know that you accept the offer is to tell him/her, by email, phone, fax, letter, or a combination of the above.
Once You Agree To a Settlement, You Cannot Change Your Mind
The most important rule about settlements is that, once your lawyer tells the defense attorney that you accepted the settlement offer, the case is settled. In almost every state, this is final. If you change your mind about settlement five minutes after your lawyer tells the defense attorney that you accepted the settlement offer, you have almost zero chance of getting the court to reverse the settlement. So you should not tell your lawyer that you accept a settlement offer until you are absolutely certain that you want to settle your lawsuit for the amount of money being offered.