Should I Settle or Go to Trial?

Most personal injury plaintiffs will be plagued by this question at some point during their lawsuit. Should you settle and take less than what you think your case is worth, or risk it all at trial? The vast majority of plaintiffs will choose to settle — and for good reason. I read an article once which argued that jury trials were no more likely to get to the truth than “trial by combat” or “trial by ordeal.” While jury verdicts may not be that arbitrary, I can say, having been through many jury trials (and hearing horror stories about many others), the one thing I know is that accurately predicting a jury verdict is about as likely as correctly predicting a coin flip. Think O.J. or Casey Anthony. Most experts didn’t see those verdicts coming.

Settlement — A Bird in the Hand. . .

The downside of settlement is obvious to most plaintiffs — you get less money than you would get from your best possible trial outcome. From a defendant’s standpoint, though, this makes perfect sense. Why would a defendant settle with you for the most you could get at trial? That makes about as much sense as you agreeing to settle for $0.00 when there is a chance you could win at trial.

Ask a Lawyer Online.  Get an Answer ASAP.

The upsides to settlement are numerous:

  • You get paid a lot sooner than if you have to wait for a trial date.
  • You no longer have to stress about your lawsuit.
  • You don’t have to worry about a hung jury (I actually had two of these on the same case — which then settled).
  • The defendant can’t appeal a settlement. He definitely can appeal a judgment — which could easily tie up your money for more than a year after you win at trial.

The benefits boil down to a guarantee of payment in the near future and a lifting of stress. Of course, this all depends upon you receiving a reasonable settlement, given your damages and chances of winning at trial. This begs the question of what your lawsuit is worth, which is the subject of another article.

Trial — The Grass is Greener . . .

Many plaintiffs who settle their cases later experience buyer’s remorse and curse at not having had “their day in court.” Of course, this hindsight is viewed through rose-colored glasses. They quickly forget the stress that the uncertainty of their lawsuits injected into their lives. They become much more optimistic about what their chances were at trial. The risk of recovering nothing from their lawsuit is ignored now that it has been removed.

On the positive side, winning big at trial can be euphoric. You feel vindicated, relieved, and you act like you “knew you would win all along.” Bitch-slapping an arrogant insurance company or major corporation that refused to make you a decent settlement offer feels great. This brings me to the ultimate point of my article — trial should be reserved for those times when the defendant is totally unreasonable.

When You Should Choose Trial Over Settlement

Some cases just can’t be settled. Most often these will be cases that involve one of two issues. The first issue is liability. Liability refers to whether the defendant was negligent or committed some other tortious act. If the defendant has an argument that he is not liable, he has a chance to win outright at trial and not have to pay you anything.

The second issue is causation. Did the defendant’s conduct, even if he was negligent, legally cause the injuries you claim? This can arise in many cases, such as those where the plaintiff had a pre-existing condition, the plaintiff was involved in multiple accidents or the plaintiff’s injuries could have been caused by an illness which naturally occurs in people who never had an accident.

Cases involving liability and/or causation issues are particularly difficult to settle when the damages are large. If you have $1,000,000.00 in damages, but the defendant has a chance to pay you nothing at trial, coming to a consensus on a reasonable settlement figure may be impossible. From your standpoint, you can’t afford a low settlement offer due to medical bills, lost wages and the chance of being fully compensated with a win at trial. From the defendant’s standpoint, why pay a large settlement when it may not have to pay anything after trial? When the stakes are particularly high, even when the amount of damages (should you win) is not hotly contested, a win-it-all or lose-it-all case may be impossible to settle. These are the types of cases that really should be tried.

When Should You Settle?

In cases where liability and causation are not at issue (there are cases where defendants will admit these things before trial) and the only issue is the amount of your damages, the possibility for a fair settlement is much greater. When the defendant knows that it is going to have to pay something after trial, and the only issue is how much, the case should settle. These types of cases should not be tried unless the defendant is completely unreasonable in evaluating your damages. The good news for you is that should your defendant prove to be unreasonable, you have the benefit of going into trial knowing that you will win, and you are really only gambling on the amount of the win.

Settlement tip

Be Reasonable

Thankfully, most parties to lawsuits will act reasonably when evaluating their odds of success at trial and the amount of damages at issue. This is why the majority of civil cases settle. As long as you are being reasonable, you should have no regrets about your decision, whether it be to settle or go trial.

This entry was posted in General and tagged , , , , , , . Bookmark the permalink.

63 Responses to Should I Settle or Go to Trial?

  1. RRHW says:

    Our son received a concussion at a daycare in Florida when he fell from a table when he was 2. We’ve had two different attorneys but are now representing our son. We were presented with an offer of $6000 which we rejected with a counter offer of $20000. The adjuster made a counter offer of $10000. We are approaching the SOL date of 04/30 and we like to receive close to $15000. SHould we file suit to get fair settlement amount?

    • fl_litig8r says:

      Unless you or your husband is a lawyer, I don’t know that filing suit will put you in a better bargaining position. You obviously want to be sure that suit is filed before the statute of limitations runs and that it is filed in the proper court (circuit court for cases whose value exceeds $15,000.00) and against the proper defendant (if the day care was operating under a fictitious name, you can look up the true name of the entity operating it on the Florida Department of State Website. You’ll also have to file suit on behalf of the minor child in the name of one or both natural parents.

      You could file the suit to preserve the statute of limitations and hold off on serving the defendant while you keep negotiating. Be aware that Fla.R.Civ.P. 1.070(j) allows 120 days after suit is filed to serve the defendant before the case is subject to dismissal (if it is dismissed after the SOL runs, you’re out of luck).

      Any savvy defense lawyer will aggressively go after a pro se plaintiff, so you may not want to jump into the lawsuit until it’s absolutely necessary. Expect a motion to dismiss to be filed even if you’ve been very careful in wording your complaint — the defense lawyer will want to make you work and sweat as much as possible. He’ll also likely swamp you with discovery requests and file motions to compel if he thinks your answers are incomplete (or aren’t sent in time).

      If push comes to shove and you really want to file suit, I’d strongly recommend trying to find lawyer #3 before going it alone. Your case isn’t a simple fender bender. Proving the extent of head injuries, especially in a child so young, will be complicated (and expensive if you’re paying for your own expert witnesses out of pocket).

      Also, settlements of claims for minors can get tricky, especially after suit is filed. As long as you keep the settlement to $15,000.00 or less, you should be able to settle without court approval before the lawsuit is filed (Fla.Stat. 744.301). After the lawsuit is filed, court approval will be required (Fla.Stat. 744.387(3)(a)). So, one factor in deciding when to file suit would be the extra time and hassle of getting court approval for your settlement.

      • RRHW says:

        Thanks for your prompt response. Our son has a Dr appt in 3 weeks to read the last Brain CT which will make a last determination if he appears to have any residual affects from the concussion. Is mediation an option to extend the SOL? Do you believe the offer of $10000 is a “fair/good faith” offer?

        • fl_litig8r says:

          The only way to be sure the statute of limitations doesn’t run is to file your Complaint with the court. There is no separate filing for a mediation. You can choose to mediate before filing a lawsuit (it doesn’t require any court filings), but it doesn’t prevent the statute of limitation from running. Mediation will cost you a few hundred dollars (usually between $100-$200/hour per party in a two-party mediation) and it may not be possible to arrange one before the SOL runs, so it may not be an option at this point.

          As to whether $10,000.00 is a fair offer, I couldn’t say from the limited information I have. Obviously, that upcoming CT will be important in determining how much the case is worth. I can say that, without a lawyer, you’re going to have your hands full trying to litigate this. If you expect that your son’s CT scan will show a permanent injury, you may want to start looking for lawyer #3 now. If his tests have all been clear until now, you can wait for confirmation with the upcoming CT before deciding whether to accept their offer. Keep in mind that you’ll likely have to pay back your health insurer for the treatment your son received due to the accident. So, make sure you get enough to cover any claim of reimbursement your insurer may have.

          • RRHW says:

            Thank you so much for your expertise. We received the results back from the Brain CT and it indicates no abnormalities; everything appears normal! We are grateful. I would rather have a healthy child than any monetary compensation. However, I do not believe $10000 is enough. Our son has had 2 scans of his brain and those procedures were COSTLY. Are insurance adjusters required to pay the medical expenses? I’ve totaled everything from the medical procedures and visits to the pediatrician/neurologist to be $7000.00. What is your opinion?

          • fl_litig8r says:

            Tortfeasors are responsible for all the reasonable medical expenses caused by their negligence. Of course, many times they will dispute 1) that they were negligent, 2) that their negligence caused the injuries, and/or 3) that the medical treatment was reasonable. So, it’s not a pure black and white issue in most cases, even ones where liability is admitted.

            In your son’s case, due to his age you can eliminate a lot of variables from the damages equation (assuming he has fully recovered). One, you don’t have to deal with a past or future wage loss claim. Two, the chances of him having a pre-existing condition before the accident are greatly reduced, and he likely had routine medical exams which would support that. Three, his test results make it appear unlikely that he suffered an injury that will require future medical care of any consequence.

            The value of his claim appears to be limited to past medical expenses and pain and suffering. Keep in mind, we’re talking about his pain and suffering, not mom and dad’s (which you don’t get to recover in 99.999% of cases). In other words, don’t put any value on your fear that your son was seriously injured. Only consider your son’s pain and emotional distress. With $7,000.00 in medical bills, their $10,000.00 offer would mean pain and suffering damages of $3,000.00, which actually isn’t too bad for the pain of falling and hitting your head (this assumes the actual pain from the trauma itself would have lasted a few days at most). If you can successfully negotiate down your health insurance lien, that moves even more money into the “pain and suffering” category.

            Everyone wants to recover as much as possible in their lawsuit, but you also have to be realistic about its value. While in most cases, the rule of thumb is to shoot for between 1x-3x your medical bills in pain and suffering damages, this usually assumes a permanent injury of some sort. Also, in your son’s case, the medical bills are somewhat disproportionate to the actual injury due to the high cost of the diagnostic testing to rule out a serious head injury in a young child. I’m not in any way saying that the costs are not justified. I’m just saying that when the majority of your medical costs are from testing to rule out injury, this won’t help your pain and suffering claim the same way medical costs for treating an actual injury will.

            As long as you are comfortable that your son has made a full recovery from the injury, and won’t require further testing or treatment for it, you should give some serious thought to their offer. Considering the position that you’re in right now, with no lawyer and a statute of limitations rapidly approaching, you don’t have a great deal of time left to decide. I’m not sure that a lawyer could get you enough over what you could get by settling on your own to offset his fees and costs, given the facts as presented.

            While it certainly wouldn’t hurt to see if you could get them to increase their offer, I don’t see their $10,000.00 offer as being unreasonable for a very scary, but ultimately temporary, injury.

  2. RRHW says:

    Thank you!

  3. RRHW says:

    One last question: Does the SOL expire 4 years to the day of the personal injury accident 04/30/2012 or one month before? The insurance company isn’t returning our phone calls; so we may need to look for lawyer #3. :(

  4. RRHW says:

    Fl litig8r: Thought I would update you: We settled on 03/31 for $14000 (just received the check), only owed $1800 to the ins co and didn’t need lawyer #3! Thanks for your help! :)

  5. unknown says:

    I had an outpatient procedure in a hospital in Tn a couple of months ago. During the procedure, the assisting nurse made a mistake in computing the total saline absorbed in my body. As a result, my stomach got so big like nine months pregnant. I was in so much pain and discomfort that I ended up staying in the hospital for a night. My stomach went back to normal size after several weeks and I’m left with so many stretch marks in my stomach due to drastic skin stretching. After I sent a complaint to the hospital, they responded admitting the mistake and they apologized and offered $2500. I did not accept it and told the claims manager via e-mail that what they are offering is nothing compared to what happened to me. Weeks later, still no response, what shall I do? Is it normal for them to take a while to reply or am I being ignored?
    H

    • fl_litig8r says:

      It may very well be that they are ignoring you, most likely because they know it will be near-impossible for you to find a lawyer willing to take your case. While liability seems clear, your damages don’t sound near high enough to justify the time and cost of a medical malpractice lawsuit. Without a permanent injury (aside from the stretch marks, which I’ll get to), most (if not all) medical malpractice lawyers won’t want to touch your case, due to the high cost of medical experts needed for such cases.

      With respect to the stretch marks, the value of these will depend on a lot of different factors: how bad they look when resolved (they look far worse when they first occur than later on, when the purplish color goes away), how you looked before the incident, how old you are (stretch marks on a 20-something woman will be worth more than stretch marks on a 60-something woman), and the cost of trying to remove them. Hopefully, you’ve already taken steps to minimize the damage by applying one of the creams available to minimize stretch marks while they are still fresh. After that, the only option I’m aware of to treat them is a procedure involving a laser. If you haven’t already looked into this, it would probably help your negotiations to find out how much such a treatment would cost.

      I really think that this is one case you’re going to have to try to settle on your own (even though I usually recommend against this for med mal claims). Once you’ve figured out your past and future medical costs, I’d submit a settlement demand to them in writing. Include photos of the stretch marks (and some “before” pictures if you have them). I’d ask for the medical cost plus 2x that for pain & suffering and emotional distress.

      Don’t submit this demand via e-mail. E-mails are easy to ignore (or get “spam foldered”). Send a physical letter. If you don’t get a response, call them — repeatedly, if necessary. Ultimately, you’ll probably have to resign yourself to taking whatever you can get (which is better than nothing).

      Of course, by all means you should call some med mal lawyers first to see if any would take your case. Just don’t be surprised if none are interested. I’m sorry I don’t have better news for you, but I prefer to be brutally honest than needlessly get your hopes up.

  6. unknown says:

    Thank you for your candor. I really appreciate it.

    I am actually in my early 30’s. Unfortunately, I don’t have a “before” picture.

    Will it be better to send the demand letter to the Chief Medical Officer or to the Claims Manager? We sent the initial complaint letter to the CMO and he forwarded it to the Claims Manager. I wonder if the Claims Manager will be more inclined to work in settling our case if the letter will come from the CFO.

    Another thing is that I don’t know what is considered a fair settlement for this case. I could have died as a result of that mistake. Luckily, I did not. But I suffered for three weeks and my husband had to use up his vacation time to take care of me and our daughter. While I was glad that my stomach size is now back to normal, every time I look at my stomach full of stretch marks, I get reminded of what happened.

    Also, should I report the incident to the State Department of Health while trying to settle?

    I was hoping to settle this without a lawyer but if they are ignoring me, I guess I have no choice but to look for a lawyer who will be willing to take the case. I have filled up forms online inquiring about the case. There are a few lawyers who want to talk to me about it. I guess I will have to do some calling next week.

    Thank you again.

    • fl_litig8r says:

      I would send it to the CMO, explaining that you are sending it to him because your prior attempts to contact the claims officer received no response. “Fair” in a case like this is going to be highly subjective, as your damages consist almost entirely of pain/emotional distress and non-impairing scarring. That’s why I suggested finding out how much laser treatment to revise the stretch marks would cost. At least that would give you some solid dollar amounts to include with the demand. The rest really depends on what you’re willing to take — and unless you can get a lawyer, what they are willing to offer.

      Reporting the issue to the Department of Health won’t help your settlement prospects. If anything, it may get their backs up as they’ll already have to incur the cost of defending the nurse’s license (and perhaps those of other providers involved). They may also be more inclined to settle if they believe that it will avoid an administrative complaint. I don’t suggest using this as a negotiation tactic, though, as if you do wind up filing a complaint it would look pretty bad if you had previously threatened to do so only if they didn’t pay up. It could also be seen as extortion and possibly abuse of process.

      Before you do anything, definitely give some lawyers a call. When you talk to them, ask them explicitly if they’re taking your case purely for settlement purposes or if they’d actually file suit if an adequate offer isn’t made. If they’re taking it purely for settlement purposes and have no intention of filing suit, you may want to try settling on your own first, as the lawyer may not be able to get so much of a higher offer than you as to justify a 1/3 fee.

      I hope you’re able to settle this quickly and fairly.

      • unknown says:

        Thank you again to your immediate reply.

        I am a bit lost though. I’ve read somewhere before that the demand letter should include the next action they plan to take if the other party failed to respond. In my case, the next action plans are limited (1) file a lawsuit, (2) file a complaint to State Department of Health and (3) talk to the media, etc. I think all three options can be seen as a threat. My question is, since it seems like they are ignoring me because they know that I will find it difficult to find a lawyer to defend me, what leverage can I use to make them work with me in settling this issue? Why will they want to settle the issue with me if they know there will be no consequence if they don’t?

        • fl_litig8r says:

          I would say that you are “hoping to settle the case without having to hire a lawyer.” While they probably suspect you’ll have a hard time finding one, they won’t know for sure (just as I don’t). This should be a sufficient threat to generate a response. As I said before, threatening an administrative complaint is a bad idea for several reasons. Threatening to go to the media rarely works, because so few stories will ever get any attention from them. Your case isn’t emblematic of a widespread problem which screams for attention (it seems like it’s just isolated run-of-the-mill malpractice, and how often do you hear about that on the news?) and it doesn’t have a huge amount of shock value (like amputating the wrong limb).

          The bottom line is you’ll either be able to hire a lawyer or you won’t. If you can’t, then it really doesn’t matter much what you say in the letter — you won’t be able to sue regardless of what they do. If you can, then you won’t need to threaten anything else — if they ignore the threat, you sue; if they make a decent offer, you settle.

  7. unknown says:

    Thanks again for your very valuable advice!

    As an update, the Claims manager replied to my e-mail. She responded just hours before we call a lawyer. She said she’s been trying to call me but she was getting a “phone number not working” message. I don’t know what to think about that because the number is working. Anyway, she’s asking for authorization to access my medical records and my spouse’s wage authorization. My question is that, since my husband didn’t lose wages because he ended using his vacation time taking care of me and our daughter while I was recovering, will theybe paying for the lost vacation time? Also, they are asking for the names and addresses of all my physicians and authorization to access my medical records, is that normal?

    Thank you again…

    • fl_litig8r says:

      A wage loss claim can still be brought when vacation time is used to cover time missed from work. Clearly, that vacation time had value which was lost when it had to be expended due to the defendant’s negligence. In your husband’s case, if he was fully compensated for the time missed through using vacation time, you’d make a claim for the full value of lost wages during that time.

      As to the medical information requests, yes, they are typical. As a lawyer, I never give medical releases to insurance companies (some lawyers do). I get all of the medical records myself and forward them with the demand package. I don’t like the possibility that the insurer will get medical records before me (there may be mistakes in the records that need to be addressed). In your case, though, I doubt that they would be satisfied with you sending them the records, as they’d be more suspicious of a lay person either removing harmful records or not providing records for all medical providers. While a lawyer could do this, too, they know that it’s less likely due to us being “repeat players.” If we did it and got caught, it would make it very hard for us to settle cases in the future.

      If you decide to give them medical authorizations, I would make them out to each individual medical provider (no “fill in the blank” so they can send it to anyone) and make them “single-use only” (not “good for a year” or anything like that). You can easily write this language in on whatever release they provide you, in the area where it specifies the duration of the release. Because your case really isn’t susceptible to being harmed by a preexisting condition (unless you consulted a doctor about stretch marks prior to the incident), I’m less concerned about you accidentally revealing something damaging than I would be with most plaintiffs.

  8. unknown says:

    I already sent the authorization letter to the hospital representative and this time, it was addressed to the Paralegal Officer of the Claims Department. She said in her letter that she will get back to me as soon as she’s done with the investigation. My questions are: how long does it usually take for them to finish the investigation? Should I contact her to follow-up? How much time should I let elapse before I start pushing for a reply (i.e. What do you consider a reasonable turn-around time?) Thank you again for your guidance and your time and attention.

    • fl_litig8r says:

      I’d give them 30 days before I started nagging. Of course, this assumes that you have a good amount of time left on your statute of limitations (> 6 months). It really shouldn’t take a long time (given the clear liability), unless they have to get your medical records from other providers. In that case, it may take them 30 days just to get the records.

  9. unknown says:

    Thanks for the reply!

    I got a lot of time still before the SOL expires. It should not take them long to get a copy of my medical records. The General Physician I saw on the 5th and 10th day after the procedure was able to get a copy of the record of that procedure in a day. I don’t have much medical records here since I have only been living here for three years.

  10. Unknown says:

    Hi there!

    It’s been awhile…Unfortunately, my claim is not going so good. After a month and half, we contacted the the Parlegal officer and she told my husband that our case was back to the Claims Manager. Afterseveral attempts to get in touch woth the Claims Manager, my husband finally was able to talk to her. She said that based on their investigation, my case was only worth $2500. However, she said we can counter offer and so we did. We asked for $13K, which includes the vacation time lost and the cost of the supposedly unnecessary medicines and medical professionals fees after the procedure, I was being conservative in this number. They replied with an offer of $2500 again saying that my pain and suffering was minimal.

    I feel like she is just wasting our time. My husband and I hve decided that we will just file a complaint to State Department of Health and the Joint Commission. At this point, we don’t care anymore about the money. We just want satisfaction that we’ll be heard loud and clear. What will happen if we file a complaint? The thing is, I have been reading online and there are people saying that filing a complaint to those organizations won’t do anything at all. Now I feel so powerless. I hate to think that here in the US, hospitals can mess up with someone’s health and life and not have to worry about the consequence because they know they can get away with it.

    Is there a way we can file a case against them? Small court maybe? What about using Res Ipsa Loquitur? No lawyer wants to accept the case because they say that it will be more expensive to hire an expert and again, I did not die nor suffer permanent disability. I find the law here so messed up. Having to wait for a patient to suffer permanently or die before they offer justice is just so backwards.

    Thanks again!

    • fl_litig8r says:

      A complaint against the responsible medical professionals (doctor, nurse, etc.) will give them some headaches, as they will be investigated and possibly disciplined. It won’t help you get more money. Due to tort reform, many states won’t let you file a medical malpractice lawsuit without first obtaining an affidavit from another medical professional (same profession as the one you want to sue) stating that malpractice occurred. Tennessee is one of those states (T.C.A. Section 29-26-122), so you can rule out small claims court unless you want to spend a lot of money (easily over a thousand dollars, and likely a few thousand) to make a limited recovery.

      Yes, it is unfair, and it denies patients who have been injured a fair recovery unless their cases are worth enough to justify the high cost. The only thing you can do is give anyone who promotes tort reform or med mal reform around you an earful about just how “great” it is.

  11. kim says:

    Need to ask one more question, if I may. I had the constructive discharge case, that settled out of court. It has taken 3 months, we finally got the draft settlement, and the defendant (city) is trying to make me fully responsible for all taxes, both mine and theirs. Is that the customary practice? They just dropped it on us Friday morning, expecting me to sign off in hopes of closing it this year, which is not going to happen. It is currently structured to where about 2/3 is “wages” and 1/3 is “compensatory.” Got the wages going to deferred comp, and the rest to the lawyer for fees and costs. thx.

    • fl_litig8r says:

      This is not the customary practice. Considering the fact that the employer’s portion of the payroll taxes would not be an element of the damages you could recover at trial, I would argue that they should not be considered part of any settlement agreement unless that was specifically included. Without any discussion of that issue, the default position would be that each side should pay its share of the taxes as if this money were paid as your gross wages.

      If you’re forced to move to enforce the settlement agreement to establish this, there is always the risk that the judge will find that there was no meeting of the minds and simply do away with the agreement entirely. However, I would hope that most judges would see this weaselly maneuver for what it is, and recognize that the employer is now trying to revise the terms of the settlement knowing full well how their offer would have been interpreted by a reasonable plaintiff.

  12. kim says:

    Thanks. It’s still in draft form, I just did not know if that was a normal way of doing business or not. The city does very little that is normal. In fact, they usually refer to all settlement proceeds as compensatory, to minimize THEIR tax burden, even though this is highly scrutinized by the IRS. They don’t hold any taxes out whatsoever. When I insisted on putting part into deferred comp, that made that portion become “wages,” so now they are trying to shift their tax burden to me and negate any tax advantages I would have gotten from my using the deferred comp approach. They are slimy b#$t$@ds. What happens next depends on who has the bigger pair. Perhaps I will get the full-blown trial after all. Although I don’t see the city scrapping this over $1600, you never know.

  13. John says:

    Hello, I’ve been reading through your blog and found it very educational as I am in the middle of a car accident lawsuit myself.

    It has been almost 8 months since my accident and my lawyer finally submitted a demand letter maybe about a month ago. They came back with an offer of like $3000 which would not even cover the medical bills so far.

    My lawyer thinks we should put the case into litigation. I am not sure what I should do. The lawyer seems to think we have a case, however he says there is more risk by doing this as the loser may be required to pay lawyers fees etc. So my fear is that not only will I be left with all my medical bills (which I’m guessing my medical insurance will not want to cover) and then on top of that having to pay who knows what kind of crazy fees.

    What are the chances I will be stuck with my medical bills and having to pay lawyers fees etc?

    Thanks!

    • fl_litig8r says:

      Ask your lawyer to explain to you the mechanism by which the other side can seek its attorney’s fees if it wins. As I discuss in this article, Florida has a particular statute and procedural rule by which a defendant can make a settlement offer during litigation which results in the plaintiff having to pay the defendant’s attorney’s fees if he ultimately recovers 25% or more less than that settlement offer. However, the offer must be made during litigation, it must comply with the formal requirements of the rule (so you know it’s one of those offers), it must allow 30 days for the plaintiff to accept the offer, and attorney’s fees can still be avoided after that 30 days if the plaintiff voluntarily dismisses the case before trial (or summary judgment). So, it’s not a matter of you being at risk for paying the other side’s attorney’s fees once you begin litigation. You still have the chance to avoid fees by (1) accepting the formal offer, (2) recovering more than 75% of the offer at trial, (3) voluntarily dismissing the case before you lose or (4) reaching a settlement agreement after the offer is made that voids the offer.

      I have a feeling that your state has a rule similar to this, which your lawyer is just warning you about in advance. The only other time you’d be liable for the defendant’s attorney’s fees would be if the court finds your case to be frivolous (which is extremely rare in personal injury cases, even in those where the plaintiff ultimately loses).

      So, just ask your lawyer how the attorney fee rule in your state works before getting nervous about having to pay the defendant’s fees. It’s likely that they’ll have to make some kind of settlement offer during litigation in order to trigger that rule, so you’ll have time at that point to decide whether to accept their offer or risk having to pay their attorney’s fees later.

      By the way, the rule in Florida works for plaintiffs as well, whereby you can make a formal settlement offer to the defendant, and if it rejects it and you go on to recover 25% or more than your offer at trial, the defendant has to pay the attorney’s fees you incurred from the time of the offer forward. These fee shifting rules tend to favor defendants, as they can make a token offer (like $100.00) that they know you won’t accept in the hopes of getting a defense verdict (which will always be at least 25% less than the amount they offered, since you get $0), while your offer needs to be realistic enough to make you happy if they accept it, but not so high that it makes it impossible for you to beat the offer by 25% at trial.

      • John says:

        Thanks! I am actually in FL also. We received an offer for $3000 however we are not in litigation yet so I’m assuming this is not the settlement offer you refer to and that I will still have a chance to accept an offer without having to pay any attorneys fees if we move forward with litigation.

        • fl_litig8r says:

          Yes, that pre-lawsuit offer can’t put you on the hook for the defendant’s attorney’s fees. In fact, the defendant can’t even make such a formal offer, known as a proposal for settlement, until at least 90 days after you file suit. If he does serve one after that time, you’ll have 30 days to accept it, so you can make your decision as to what to do at that time. Even if things go completely south after rejecting such an offer, you can still avoid paying his fees if you voluntarily dismiss your case before trial or summary judgment, assuming this is your first voluntary dismissal. Of course, if you voluntarily dismiss your case, you don’t get any money.

  14. Sad Parent says:

    hello I am a mother of a minor who suffered a severe brain injury during surgery leaving him in a vegetation state. We filed a lawsuit against the hospital in 09 and now we do mediation this year but if we don’t come to an agreement we have court In November. His father feels that he should be compensated but he did not file and he did not sign the paper to get anything when I did but he been knowing about the lawsuit from day one. what will happen?

    • fl_litig8r says:

      First, the issue of whether a parent can recover loss of consortium damages for injury to a minor child is one that varies from state to state. Some states allow it. Others allow parents only to recover their own out-of-pocket expenses stemming from the child’s injuries, such as payments for medical bills. Whether the child’s father has any independent claim for damages stemming will depend on your state’s law. In cases where the parents are estranged, some states have specific procedures in place to address this. For instance, Washington state has a statute that states that if one parent files a lawsuit for a child’s injuries, the other parent must be served with notice of the suit and given 20 days in which to join it with his or her own claim. You’ll need to ask your own lawyer about your state’s law regarding parental consortium for injury to a child to see if the father has an independent claim and whether that claim has been waived through inaction on his part.

      With respect to a settlement for your child, because it involves a serious injury that will likely make it quite valuable, you’re going to need court approval even if you reach a settlement agreement at mediation. At this stage, if you and the child’s father have a dispute over guardianship of the child’s settlement, the court may require that a guardian ad litem be appointed to independently represent the interests of the child — some states will require this even when no parental dispute exists. As with the parental consortium issue, the technical aspects of how a minor’s settlement need to be handled will vary from state to state, so your lawyer would know better than I what your particular state’s laws require.

      • sad parent says:

        its in Tennessee the suit has been going on since 09 and we finally have a court date this year but my lawyer said we will do mediation before then my question is will his father who is not on the birth certificate but has knowledge since we filed in 09 he recently been asking me if he was getting some money after we get our son situated what is the statue of limitations for him to file in Tennessee (09)?

        • fl_litig8r says:

          From what I can tell, the Tennessee med mal statute of limitations is 1 year from the date you discovered that you were injured through malpractice, but no later than 3 years from the date the malpractice was actually committed (the 3 year time frame is commonly known as a statute of repose). Even if the father could somehow file a claim now, because he’s not on the birth certificate he’d likely have to prove paternity before his suit would be permitted. Your own lawyer would know better than I. I really suggest you tell him about the situation with the father prior to mediation.

  15. sad parent says:

    Thank you sir for your information you are truly good and I have another question. I have my deposition tis April 17 2013 and they already have a court date for us on Nov 18 2013 why are they just now getting my deposition this late and this case has been going on since Apr 09? My lawyer got all of their depositions first and they asked for mine in Jan. Do you think we will have mediation before Nov. medical malpractice of a minor 1 1/2 at the time now 5.

    • fl_litig8r says:

      I can’t say why they waited so long to depose you. Perhaps they wanted to see if they could settle before having to do it, or maybe they wanted to wait until your child got older so that his injuries and future needs might be more certain before asking you about them.

      I would think you’d have mediation before your trial date. Many courts require it, and I can’t see why you wouldn’t in this case. Perhaps your deposition is being taken now in anticipation of mediation. Your lawyer would know better than I.

  16. ISABELLA says:

    Hi,

    I am a pro se plaintiff and I am within two weeks of putting my complaint into the court.

    I am suing my Town, Mayor, 2 Ex Mayors, Council Members, Town Manager, Town Clerk, Police Department and the Planning Board Chairman- my question is do I serve the Ex Mayors through the Town or do I have to sue them with service at their homes?

    I am also suing the Towns Attorney- they are Independent Contractors – Do I serve them at their firm, the Town or at their homes.
    I requested a copy of their contract with the Town but I have been told that they do not have one- do you believe that?
    I am also suing a woman who has now moved back to New Jersey. I thought I read that you cannot sue someone in Florida who lives in another state unless they have ties to Florida – this woman still owns a condo in Florida -can I sue her – I have somebody in New Jersey who will serve her.
    All if my case can be proven by public document and Town Hall Meeting recordings I am buying them certified off of the Town – I am doing this because I have heard that getting discovery can be difficult and time consuming -do you think that that is a good idea?

    Last but not least – would I have to pay to read and correct my deposition- I am indigent.
    Thanking you in advance for any help that you can give me

    • fl_litig8r says:

      If you are suing the ex-mayors in their individual capacity, you must serve them personally. If you are suing them in their official capacity, then you are really only suing the current mayor (suits filed against public officials in their official capacity are only brought against the person currently holding the office, regardless of whether that person did anything wrong — technically you are suing the office, not the individual). So, if I wanted to sue for actions taken by former Mayor John Doe in his official capacity, I’d still sue current Mayor Tom Schmoe, even if he never did anything wrong. You’d identify him on the complaint as “Tom Schmoe, Mayor of Happy City, in his official capacity”. If you want to sue the current mayor in his official capacity and the former mayor in his individual capacity, you list them on the complaint as “John Doe, in his individual capacity, and Tom Schmoe, Mayor of Happy City, in his official capacity”. You can say that you’re suing the current mayor in his individual capacity as well, just by changing it to say “in his individual and official capacity”. You’d only need to serve the current mayor once to cover suing him in both capacities.

      Where you serve them really doesn’t matter, as long as they are personally served (this applies to all defendants). It may be easier to serve the current Mayor at his office, or to see if the City Attorney will accept service on his behalf (get this in writing if he agrees).

      As to the contract between the lawyers and the town, I’d submit a written request for this, stating specifically that it is pursuant to CH 119, Fla.Stat. (this is Florida’s Public Records Law), and get a response in writing saying that there is no written contract.

      You can sue someone who committed a tortious act in Florida, even if they reside out of state. Florida’s long-arm statute specifically allows for this. So, for example, an Alabama resident who causes a car accident in Florida can be sued in a Florida court — his tie to Florida is the causing of the accident here. You still need to serve the person according to the service rules in the state where she resides, and if you get a judgment against that person you’d need to domesticate the judgment in a state where the person has assets in order to seize them.

      Getting as many public records as you can through Chapter 119, Fla.Stat., before you file suit is a good strategy. There are fewer objections the town can make than they could under traditional discovery rules — for example, they can never refuse to produce documents because your request is “overly broad and burdensome”. Often, it will even be cheaper to get records this way (though maybe not “certified” records), as the statute places limits on what can be charged for copies.

      If your deposition is taken, you do not need to pay to read it and make corrections. Of course, it will only be transcribed if a party orders the original transcript, so you’d need to wait for that to happen. If you wanted a copy of the deposition, you’d still need to pay for the copy, which is far cheaper than what the ordering party pays for the original. If you don’t order a copy of the deposition, your reading it and making corrections would likely need to take place at the court reporter’s office, as they won’t send you a copy (even a draft) for free.

  17. RWims says:

    It has been difficult to retain a mold attorney. Do you know why this is? We are approaching the SOL and have received seven rejections although we have been told our case has merit.

    • fl_litig8r says:

      It’s likely because lawyers would rather handle easier personal injury cases, like slip & falls and car accidents, which would be worth as much as your case but involve less work. If a lawyer has never done a mold case before (and most haven’t), or hasn’t done one in a while, he would need to spend time getting up to speed on the science and caselaw in that area — time he could be spending moving easier cases towards settlement.

      You need to find a lawyer who has done mold cases before, preferably recently. If that lawyer isn’t willing to take your case, then it’s likely that there are some problems with your case itself. Unfortunately, many lawyers would rather lie to you about why they are rejecting your case than start an argument over whether you have a good case at all — so while you may hear that you have a good case but the lawyer isn’t taking it for some other reason (“conflict of interest” is often used because if the client asks for clarification, the lawyer can say that he can’t clarify due to confidentiality and shut the interview down in no time), that may not be true.

      • RWims says:

        Well, I have prepared everything they need to move forward. Independent lab results from an accredited lab that test air samples and carpet samples, medical records confirming skin and resp infections our family experienced and extremely gross photos of the mold growing on everything. It would appear that no one wants to do this because of the amount of work involved. Our SOL runs out in December, if we don’t secure an attorney by the end of October, what should we do? I mean I don’t want to sign over our past five years of medical history to the insurance company for $4500 dollars.

        • fl_litig8r says:

          You already know the answer. You need to find a lawyer. If you can’t, either settle for the little they offer or walk away from the matter entirely. If you sue on your own in a case like this, you’re likely to end up losing money.

  18. ladybug says:

    My husband had an accident about 3.5 years ago. He had rehab, was diagnosed with a mild TBI. Before the accident, he was almost finished with his Master’s degree, and has worked full time since he was a teenager. It has made a HUGE impact on our lives. He continues to do Speech Therapy, etc. He was approved for SSDI the first time we applied. We do have an attorney, and we filed a suit. We were both deposed last week, and now I feel more insecure. Is it normal for the Defense to be complete jerks?

    • fl_litig8r says:

      I would not say that it’s normal for the defense to be jerks, but it’s not all that unusual, either. My own philosophy when I was on the defense side many many years ago was basically the Patrick Swayze Roadhouse rule: be nice until it’s time to not be nice. Generally, if the person I was deposing wasn’t openly hostile to me, I’d be friendly and polite — that usually makes people more talkative, anyway, which is good for the lawyer taking the deposition. If the deponent was being evasive or outright hostile to me, then I’d have to put pleasantries aside, while still trying to be professional about it — I can really only think of one time that I was outright rude, but that guy was a major asshole and had it coming (he also wasn’t a personal injury plaintiff — it was a different kind of case).

      Of course, not all defense lawyers are like I was. For me, it was a job — nothing personal. Some defense lawyers are what I like to call “true believers”. They have a big chip on their shoulder and their starting position is always that the plaintiff is a fraud until proven otherwise. They are more likely to be jerks during interactions with the plaintiffs, because they have convinced themselves that all plaintiffs are liars and cheats. If you have such a true believer on the defense side, try not to take it personally. It’s not you. It’s them. The upside of having such a jerk on the defense is that they tend not to play well in front of a jury. So, should your case be forced to go to trial, a jury will likely wind up disliking the defense attorney — which can make a difference. The most successful and well-regarded defense attorneys I know also tend to be the most cordial.

      Don’t feel insecure just because the defense attorney was a jerk during your deposition. That likely had nothing to do with you or your husband’s case. It’s just how some lawyers operate, usually to their detriment.

  19. SunninginWA says:

    I have been in a mass MDL and was recently left to go pro se after my attorneys withdrew. Most have not been successful and they had won only one bellwether trial. This suit is product liability that they failed to disclose. I met all the criteria for settlement except for age due to the loss of the bellwether trials, which based age on the epideameology report. So I have been very brave at going forward and sitting in on all conference calls and being persistent. Well they reached out today and offered 1,000 dollars and I feel like this is let’s make it go away money. My plan is to tell them that I feel my case is worth more then a thousand dollars and counter them 10k and hope that they will come back with an offer. The courts want this MDL over with. Am I in my right to tell them that I will settle my case for 10K? The only other thing I’m worried about is signing something that will take all my rights away for anything that arises in the future. They want to know the answer by the end of this week. This week ends on 7/11/2014. Ugh, I’m stuck.

    • fl_litig8r says:

      Well, you said yourself – you’re stuck. Without a lawyer, you’ve got zero chance of recovering anything in a product liability case. You know it and they know it. You can try to counter, but they have very little incentive to budge. I doubt that a counter would make them pull the $1,000 offer, so I see little risk in trying to get more.

      I’m not sure what you think is going to arise in the future that would make you afraid to sign a release. Yes, you’re giving up your right to sue them over this issue forever, but right now that isn’t worth anything anyway. I don’t foresee that changing, unless some lawyer decides to suddenly swoop in and take up all the discarded cases — but what are the odds of that happening?

  20. Lashondra Jones says:

    if I haven’t worked in five years and was hit by an 18 wheeler which it was a slight side swipe then can I be compensated for loss wages. also, can my husband be compensated for consortium. I had a kneck injury that lead to surgery and I wanted to know if 165,000 sounds decent

    • fl_litig8r says:

      The value of your lawsuit, assuming that the defendant accepts full liability for the accident, really depends on the cost of your medical care (past and future), how well you recover, and your ability to prove your intent to return to work. I wrote an article which explains generally how to figure out how much your lawsuit is worth, which you should read. With respect to your wage loss claim, your five year absence from the work force will definitely be an issue you need to overcome. If you don’t have a good explanation for why you planned to return to work, or why you took the time off, it’s going to be a tough sell to either the insurer or a jury. If you took the time off for a specific reason, like waiting until children reached a certain age, or caring for a sick relative, or attending school, it will be easier to sell the idea you always planned to return to work some day. Having witnesses (aside from people who have a stake in the outcome of your case, like your husband) who can verify that you spoke of returning to work would also help. Of course, even if you can prove your intention to return to work, you face the problem of proving how much you would have earned and how your injuries affect that amount. Purely speculative damages won’t be awarded, so be prepared to back up your claim that you would have earned a certain amount by proving your qualifications for certain jobs and how much they pay in your area. It won’t be easy.

      With respect to your husband’s loss of consortium claim, theoretically he would be able to recover, but again it comes down to proving his actual damages. I wrote another article about loss of consortium claims here.

      I can’t say whether $165,000 is a fair value for your case. I know nothing about any liability issues you may face, the cost of your medical care, whether you had any preexisting conditions, how much your future medical care will cost and how your injuries will affect you in the future, all of which play an important role in valuing a case. This is something that you (or your lawyer) will need to figure out on your own. The article I cited above about valuing a case can give you some guidance, but I can’t place a value on people’s cases online.

  21. Faith says:

    Can a NC Superior court judge allow a defendant’s expert to go on schedule prior to the plaintiff’s? Is this not court room bullying on a Friday afternoon to scare the plaintiff in a quick settle for zilch? Plus if the Defendant omits notes for your expert and witnesses testify as missing…why does the plaintif not win automatically? I was told to settle nil as I had an MVA 2 years prior and small parking lot one..Neck and TMJ yet had a dissected artery after chiropractic and facial drooping.

    • fl_litig8r says:

      Judges are given very broad discretion when it comes to scheduling matters, even when it comes to trial. If the defendant’s expert’s availability makes it necessary for him to testify before your case in chief is finished, he can allow him to testify early. I don’t see why the order of expert testimony makes much of a difference, really. In fact, I’d prefer my expert to testify second so that I have the chance to develop rebuttal arguments to any unexpected testimony by my adversary’s expert.

      I have no idea why you mean by “if the Defendant omits notes for your expert and witnesses testify as missing”. Do you mean that they lost records that your expert wanted to review? If you can prove that the defendant destroyed these records after they realized that they would be relevant to your claim, then that would constitute “spoliation of evidence” (and yes, that’s spoliation, not spoilation) and it would entitle you to a jury instruction telling the jury to assume that whatever was contained in those records would have been damaging to the defendant’s case. Of course, you’d need to prove that this was an intentional destruction of evidence, and not merely them being accidentally lost, which is harder than it sounds. In either case, you don’t get to “automatically win” even if records are intentionally destroyed.

      If your lawyer told you to settle for very little (or nothing), then it probably means that the trial went pretty badly, and he’s trying to avoid you actually owing the defendant money, which can happen if you lose. He wouldn’t make that suggestion lightly, as he’s almost guaranteed to lose money himself either way — so he doesn’t have much incentive to suggest a “nuisance value” settlement after putting in all that work unless he’s doing it for your sake. He won’t owe the defendant money. You might.

  22. Chris says:

    My wife is part of the Yaz MDL and has recently been given a settlement offer along with a group of 13 other woman. By looking at all of the settlement offers none of them come close to the average settlement amount for 8k other lawsuits. My wife and I have decided to turn down the offer and the lawyers have become very nasty. They claim that if we refuse the other none of the other 13 women can proceed and get their settlement. I replied ” with well we are doing them all a favor then.” The lawyers also claim that bayer will not up their offers in the future and we stand to settle for much less than our current offer. My personal opinion is this is all bs trying to get us to settle quickly. We are blessed financially and can afford to wait many years for a proper settlement.

    My wife suffered multiple PE’s and a dvt. She was in the hospital for 5 days and was on blood thinners for 2 years after wards.

    In your opinion what do you think the law firm will do to us by turning down the current settlement offer. Will they drop the case?

    • fl_litig8r says:

      They may take one more crack at the defendant and use the “I have one difficult client — please work with me” negotiation tactic, but if that fails, then they may dump your wife’s claim. To a degree it depends on their perceived value of your case. The less it’s worth to them, the easier it is to let it go. Looking at the average settlements for Yaz cases involving pulmonary embolisms and deep vein thrombosis (over $200,000), the firm may be reluctant to just drop your wife’s case. I’m not saying that they’ll ultimately be willing to take it to trial, but I would expect that they’d at least take another crack at negotiating a higher settlement with defense counsel before they would choose to walk away from her case entirely.

      I do have to say that I don’t approve of them trying to guilt your wife into taking a settlement by saying that she’s depriving the other claimants. If the defendant made the offer conditional on every client accepting it, that’s on them — not your wife. There’s no reason why the defendant couldn’t complete the settlement with these other women at the suggested value if it truly wanted to. This is an MDL case, not a class action. There’s no reason why the defendant can’t settle each claim individually, because they’re all still technically separate cases. They’re just lumped together for discovery and other pre-suit matters.

      • Chris says:

        Thanks for the quick reply. The law firm has had my wife’s case for over 2 years and have had a settlement for the past 6 months. For what ever reason it took them 6 months to finally give us the “Amount”. The only thing they would tell us during this 6 month period is they where extremely pleased with the settlement and they got exactly what they asked for. Well when we finally see the numbers I told them it was obviously clear they didn’t ask for enough money to start with.

        In your opinion do hold outs normally fair better in these types of cases? I feel that if one or two of these yaz cases could ever make it to trail everyone else’s settlement amount would go up. Or what about the last group of people at the very end. Will the defense just throw money at them to go away and finally get the ordeal behind them? We don’t need the money and even a 200k settlement won’t change our lives. I’m not trying to be difficult just want a fair and maybe slightly above average settlement for these bastards trying to kill my wife.

        • fl_litig8r says:

          I can’t say whether hold outs do better because there are just too many variables, not the least of which is the willingness for a firm to go along with the hold out. The flip side of your opinion that “if one or two cases were tried, the plaintiffs would do better” is that if one of those cases lost, it may screw things up for all plaintiffs. That’s one of the problems with mass tort litigation like this — the lawyer has to decide whether he’s willing to risk everyone’s cases, not just his own client’s (or clients’). These types of ethical issues are one of the reasons I avoided cases like this like the plague — that, and the fact that you really have to coordinate your efforts with other firms, many of whom will likely have differing opinions on what to do. Who gets to decide which lawyer and which client should be the “test case”, and is that a decision a lawyer should make unilaterally without regard to all the other plaintiffs?

          I have seen speculation that the later PE and dvt cases may get higher settlements than the ones which have already settled, but I doubt that this is true across the board. I really don’t follow mass tort issues closely enough to have an opinion on this. I prefer the “one client, one case” approach. Though I recognize the need for mass tort lawyers and lawsuits, it’s just a personal decision I’ve made to stay away from the drama, politics and ethical quandaries involved in these cases.

          One thing which you haven’t mentioned specifically, but is implied, is that it appears that your lawyer was making settlement offers to the defendant on your wife’s behalf without her authority. While this is expected in class actions, it shouldn’t happen in MDL cases because they are still separate lawsuits. He should have gotten a number from your wife before making any offers to settle her case. I know that recent MDLs have taken “innovative” settlement approaches, including certifying mini-classes for settlement purposes only, but if something like that was done in your wife’s case, I would hope that the firm would have communicated this fact to her.

          • Chris says:

            Yes you are correct. They never asked what “our settlement number would be”. They claim my wife was put in a group of 13 other women and then that group was offered a settlement. Then it went to some allocation company and they broke it down to what they figured everyone in the group should receive based on a point system. Basically my wife was awarded 275 points and then lost 20% of those points to other factors that they claim effected her case.

            They have also held back 20% of the group settlement to cover any appeals of the point system. After all appeals are satisfied they will divide that 20% pro rata between all the women in the group. The attorney told us that appeals very seldom work and our settlement should increase by about 40,000 once the 20% hold back is released.

            Another thing that doesn’t pass my smell test is they’ve had this lawsuit for the past 2 years and have had a settlement amount for the past 6 months. They are trying to tell us we only have 2 weeks to review it and settle before the defense has the option to cancel the settlement and the entire group loses out.

          • fl_litig8r says:

            This process of negotiating a group settlement when the lawyer isn’t even sure how much each client will receive until after the total amount is “scored” and divided is one of those ethical quandaries I mentioned. I’m not saying this is out of the ordinary for MDL cases, but it’s one of those practices that makes me avoid those types of claims altogether. How do you even arrive at a group number without consideration of the value of each individual claim? It seems rather arbitrary, though I don’t know that other firms handling these kinds of cases do it any differently.

            I can’t speculate as to why the firm would sit on the settlement amount for 6 months. I don’t see any benefit to them in waiting. However, I can’t see any real problem in them giving your wife two weeks to make a decision. That’s plenty of time. Most individual clients make settlement decisions on the spot once they hear an offer. It’s not like clients at mediations get two weeks to decide on an offer.

  23. Chris says:

    Thanks for all your replies. I’d like to run one more thing by you. The law firm we are using is a national firm and with in the last 8 months they have approached the organization that I work for to represent us on product liability cases that might be brought against my organization. The amount of money the firm stands to make off this contract is staggering compared to any money they will make off my wife’s case. The decision makers in my organization know this law firm is handling my wife’s case and let’s just say many eyes are watching.

    I don’t want to step on anyone’s toes and I don’t know if this is ok to do in this situation. I certainly don’t work for free and I don’t expect anyone else to either, but given all these circumstances and the fact the settlement is lower than we where expecting. Is it ok to ask the law firm to lower their fee on my wife’s case in order to get all this behind us and I give them the recommendation to my organization.

    • fl_litig8r says:

      I see nothing wrong with asking a firm to lower its fee, or even to use your wife’s consent to the settlement as leverage to get them to agree to it. Offering your recommendation in exchange for the fee cut, however, sounds like a kickback to me. Would you want to risk having the firm reporting your “offer” to the organization?

  24. chris says:

    Great point. Our original contract is to pay the attorney 33.5 percent. Would it be ok to offer them 25 percent and we agree to the settlement? If not what what do you think is a good starting point on lowering their fee.

    • fl_litig8r says:

      It might be best to approach this from the standpoint of how much below the average settlement amount your wife is getting. You could base their reduction on what she would have netted had she received the average amount, so at least it sounds reasonably thought out and not just some arbitrary number you’ve plucked from thin air.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>