I know I have blogged about this topic before, but after several years of blogging, you can’t help but repeat yourself sometimes. Still, every time I discuss some aspect of New York personal injury law, I tackle it from a slightly different angle. So here goes.
When will your New York personal injury lawyer try to settle your case? Well, if he knows what he is doing, not until it is “ripe”. When is it “ripe”? It depends. But the most important factor is whether your injuries are still receiving active treatment aimed at healing you. If that is so, then you have not reached “maximum medical improvement”, also called “MMI”. Your case is not “ripe”.
We personal injury lawyers don’t want to settle before you have reached MMI because as long as there is still some hope of your injury improving, the insurance adjuster will argue that you can still get better, and so she won’t pay the full value of your likely future pain and suffering, lost income, medical treatment, etc. But if we wait until your doctor has documented MMI, then we can claim all the future pain and suffering and other damages, since reaching MMI means that any symptoms you still have are there for good.
Of course your case is also ripe for settlement if you have fully recovered from your injuries. In that case, there is no future pain and suffering, lost income, etc. Your claim is all about what you went through, not about what you will go through. The value of that case, of course, will be smaller.
But sometimes even if you have reached MMI your case is still not “ripe”. Work often needs to be done to find out whether there are liens against a settlement, and if so, how much they are likely to be, and whether they can be negotiated downward. What is a lien on a personal injury settlement? It is an amount of money you have to pay out of your settlement to entities who have paid for your medical treatment or lost income. The most common types of “lien holders” are workers’ compensation carriers, Medicaid, Medicare and health insurance carriers (but in New York only ERISA plan health insurance polices have liens against your settlement).
Of course your personal injury case WON’T settle if the insurance company low-balls the settlement offer and we can’t convince them to “see reason”. In that case, we have to sue. Sometimes filing the suit gets the case into the hands of a “litigation adjuster” who is smarter than the first adjuster and sees the value of the case. Then your case will settle. Or else the lawyer hired to defend the lawsuit might – after some time billing the file – talk the insurance adjuster into offering a fair amount.
When a case is factually complex, or the injuries are very serious, it is less likely that your case will settle early on or before filing suit. Yes, we try to settle those cases without filing suit, too, but they usually don’t settle at least until after depositions are taken. That’s because there is a lot of money at stake. The insurance company wants to make sure your case is strong. They can get a better sense of that only after they see you testify at deposition. At that time, the defense lawyer who took your deposition can report to the adjuster regarding your credibility and your “likeability”, which is important because it is likely to impact the jury’s decision.
One thing that can happen at deposition that will help settle your case for more money is if we successfully “nail” the defendant with our questioning so that it becomes very clear to all in the room that the defendant is liable for your injuries. This removes any incentive from the insurance company to risk a trial.
If your case is for medical malpractice, well, you can just about forget about settling before trial. Those cases more often than not go to trial. Why are medical malpractice cases less likely to settle? Doctors just don’t want to admit any mistakes or wrongdoing, and they see settlement as a kind of admission. In their insurance agreements they have “veto” power over settlements. Also, the insurance carriers know that juries generally like and respect doctors and will give them the benefit of the doubt in a close case. If your case is truly a slam-dunk malpractice case, it might settle, but those are rare cases. Usually the malpractice falls into some grey area and doctors and insurance companies prefer to take their chances at trial.
One last thing: Remember that only YOU can decide to settle. Your personal injury lawyer can only advise you on this important decision. If you do not like the offer, even if your lawyer does, you have an absolute right to go to trial. The reverse is also true: Even if your lawyer wants to reject the settlement offer, and prefers to go to trial, you get to tell him “no, I am settling”, and that’s that!
Email me at: firstname.lastname@example.org I’d love to hear from you!
Michael G. Bersani, Esq.