Thursday, August 07, 2008

Contrary to TV, Settling is Better Than Going to Trial

Every lawsuit I've entered has been against my will but for my welfare. I've been forced into each one by bad drivers who should be chucked off the roads or a deserting spouse. After surviving four (holy crap, four!!!) lawsuits, I can say that the New York Times has probably got it dead right in its article today titled "Settle or Go to Court? Study Finds Most Get it Wrong."

Jonathan D. Glater begins his article succinctly:
"Note to victims of accidents, medical malpractice, broken contracts and the like: When you sue, make a deal."
This was not really an issue in two of my lawsuits. Trials seemed like a ridiculous idea in lawsuit #1, against my own insurance company for accident benefits resulting from crash #1, and in lawsuit #3 (or was it #4, the last to be sued?) against my spouse. Far more sane was coming to a mutual agreement that let us quickly go our separate ways.

The insurance company in lawsuit #1 was reasonable, well, after they tried a year of wearing me down. They understood I had one goal, and one goal only: to return to work as quickly as possible. They finally understood that they would pay more to fight me for the equipment and help I required to resume working than to just pay up. So we met, we discussed, we negotiated, the mediator yelled at them, we negotiated, and we settled. It was definitely the only win-win lawsuit I've ever been in. And the shortest.

Lawsuit #2 was against my own insurance company for accident benefits resulting from crash #2, and it was hell. They only settled because they fucked up so badly, they realised they couldn't stare-me-down (as if!) and they'd pay through the nose hauling me in to court. Since I had a lawyer this time -- it was far too complicated and besides, my brain injury was a serious impediment in managing a legal case! -- he, not me, negotiated. But I had the last word. We settled. There's lots to say about the law and how it penalizes crash victims in favour of phantom insurance premium decreases, but within the bounds of the law in effect at the time of my crash, the settlement was OK. And it was a relief to be able to focus on only one lawsuit, lawsuit #4, the one against the assholes who hit me. (By the time I settled lawsuit #2, I'd already finished lawsuit #3, which isn't worth discussing...at this point anyway. That one too did not go to trial.)

Lawsuit #4 I settled in July. It too was hell. Herb Cohen writes a good book called "You Can Negotiate Anything." In it he descibes various negotiating styles. Let's just say the Soviet style was très familiar. I think, in the end though, we both collapsed, not just me. Or maybe they couldn't see the back of me fast enough. Either way, I've never had so little post-settlement work to do. I don't know what they did aftersettling with me -- you see, they had counter-sued my spouse as driver of car #2, claiming he'd slammed into car #1 before cars #3 and 4 slammed into us. Hardly. They pushed us into car #1. But how that fight ended up I have no idea. As my lawyer said, only the insurance company representing cars #3 and 4 mattered. (Can you imagine being the adjuster getting the statement of claim from my lawyer -- what do you mean we represent BOTH drivers being sued?!)

To be honest, even though I understood how much the law penalizes crash victims, stealing a ton of money under the rubrik of legal rationalizations, and even though I'd done the math of settling vs. going to trial after umpteen conversations with my lawyer, I still wasn't sure settling was the best choice. But reading that those who "went to trial ended up getting less money than if they had taken" the settlement makes me feel better. In fact, they got at least $43,100 less! And let me tell you, television myths notwithstanding, that ain't chump change in a legal case.

Unlike plaintiffs (people like me, the ones who sue), "Defendants made the wrong decision by proceeding to trial far less often..." I think that's because defendants are in a constant state of being sued, or at least insurance company defendants, for that's part of what they do. They deal with lawsuits so numerous you can't count them, and although no one can predict what a jury will do, insurance companies and their lawyers have lots of experience as to the odds. Plaintiffs on the other hand, have exactly one experience: their own. Even with three lawsuits completed and one still in the works, I could not rely on my own experience in trying to figure out whether settlement or trial was riskier for lawsuit #4.

In the article, interviewees and Mr. Glater muse over whether plaintiffs go to trial more often because of contingency fees. I am one of the beneficiaries of the law changing to allow such fees here in Ontario. Without those I could never have sued the drivers who permanently damaged me. Yet I disagree with the speculation that those fees drove plaintiffs' lawyers to argue for trial over settlement. My lawyer was far more in favour of settling than going to trial, but settling for what was good for me, not expedient for him.

Apparently 80 to 92 percent of cases in the US settle. You wouldn't know that from watching TV. You'd think every case went to trial, and every case ended up being fairly and justly resolved. Ha! Double Ha! No, TRIPLE HA!!!
"They found that over time, poor decisions to go to trial have actually become more frequent."
Not surprising, given how pervasive TV is and how much we rely on it for accumulation of knowledge. I don't believe it's lawyers on contingency causing the problem; it's more likely a combination of seeing what is "normal" on television combined with struggling day-to-day with one's injuries and knowing how much money injuries are going to suck up over the long term plus just the suffering itself and wanting to see justice done, is what drives plaintiffs to insist on court. They want their "day in court"! And they see that day in court brings justice, lucrative justice, over and over on TV. That feeling grows the more the insurance companies, with the blessing of the government and the law, treats the plaintiffs as criminals, videotaping them, following them, casting aspersions on them, sending them to quack after quack, oh sorry independent medical examiner... The more the insurance companies treat you badly, the more you want to show them up in court. Insurers do this because they believe these tactics will wear you down until you'll settle for nothing. It must work for some, but according to this study it can't be that often if people end up with more when settling than with going to court. Oh, and as for settling not making good television like trial scenes do, let me tell you from my own experience they would. What with all the friggin' lawyers and people involved and all the tactical strategies going on, it definitely would!

Simple cases are easy to predict, and one doesn't question settling that much. But complicated cases that have so profoundly affected one's life are much more difficult and make one want to go to court so that finally your voice is heard. Yet in the end, even plaintiffs in those cases are better off settling, according to this study. I, for one, am glad I did. I would be prepping for trial right now if I had not and would not be able to simply relax and enjoy the Olympics.

So as of today until the Olympics are over, I'm thinking, breathing, watching nothing but the big O! I can't wait until tomorrow!

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