Once your attorneys have filed your personal injury case, you may be anxious about case resolution. There are a number of different ways to resolve your personal injury case. They include the following:
- A settlement negotiated between the attorneys;
- A trial;
- Moderated settlement conference;
- Summary jury trial; or
The last five methods of resolving cases are referred to as “alternative dispute resolution,” under Texas law.
A Settlement Negotiated Between the Attorneys
In many cases, after discovery is complete, and the attorneys from both sides have had an opportunity to review all the evidence, the attorneys can come to an agreement about the value of the case, who is at fault, and what is a reasonable settlement offer. If that occurs in your case, your personal injury attorney will contact you to convey the settlement offer. As the injured party, you are able to make a determination about whether or not you will settle for the amount offered. Your lawyer’s job is to assist you in making an informed decision. This means they will tell you if they believe you could receive more money at trial, or if your expectations about a five million dollar settlement are unreasonable for your injury. If you agree to settle, the lawyers will notify the court and take care of the necessary paperwork for you.
Trials are reserved for the very few cases that cannot be resolved by negotiation, or by using one of the many forms of alternative dispute resolution available to the parties. At a trial, the parties both make opening statements, witnesses are examined by both sides, evidence is admitted, and the lawyers make closing arguments. Then the case is given to a judge or jury, who will decide the case. Trials are usually quite stressful to lay people. Trials also run the risk of a lack of finality. This is because, in addition to the uncertainty that comes with letting others determine your fate, if the insurance company doesn’t want to pay the amount awarded or otherwise believe that some injustice occurred during trial, they can appeal the verdict in certain circumstances. This makes an already long wait for resolution even longer.
Alternative Dispute Resolution
A court, or a party to the action, can make a motion to refer a case to some form of alternative dispute resolution. If the court makes the referral, they will consult with the lawyers for the parties to determine which method of alternative dispute resolution is best, given the facts and circumstances of the case.
Mediation involves a mediator, who is a neutral third party such as an attorney or retired judge. The job of the mediator is to remain impartial during the proceedings. Mediators attempt to facilitate a discussion between the parties. The goals of mediation include promoting an understanding between the parties, reconciliation, and settlement. However, the mediator is not permitted to substitute his or her judgment for the parties’ own.
A mini-trial occurs when the parties agree to participate in this settlement process. The attorneys for each side present a highly summarized version of his or her position in the case. This can be done before an impartial third party or each party’s selected representatives. In presenting their side, each party’s goal is to define the issues as they see them, providing a foundation for sensible settlement negotiations. The impartial third party or selected representatives will issue an advisory opinion as to the merits of each party’s position. The opinion of the impartial third party is not generally binding upon the parties; however, the opinion can be if the parties agree to it prior to initiation of the mini-trial.
Moderated Settlement Conference
A moderated settlement conference is another forum for the parties to engage in case evaluation and to determine if settlement negotiations on both sides are realistic given the fact and circumstances. In a moderated settlement conference, the attorneys present the positions of their party to a panel of impartial third parties. The panel then issues an advisory opinion about each party’s liability and then the damages. The advisory opinion itself is not binding on the parties; however, it can often be a good starting point for renewed negotiations between the attorneys.
Summary Jury Trial
A summary jury trial is designed for early case evaluation and provides a way to develop realistic settlement negotiation. In a summary jury trial, attorneys for both sides present their position to a panel of six jurors. (The parties can agree to more or less jurors if they are so inclined, but typically six jurors are used.) After hearing the positions of the parties, the jurors make decisions about what damages might be reasonable, and who is at fault. This is also an advisory opinion, and as such, is not binding on the parties.
There are two kinds of arbitration: binding arbitration and non-binding arbitration. Regardless of whether the arbitration in binding, both parties will present their position to an impartial third party called an arbitrator. The arbitrator will issue a specific award. If the parties have agreed to a binding arbitration, the arbitrator’s decision is final and will be enforceable like any other contract. If the decision is not binding, the idea is that the decision will provide a basis upon which the parties can negotiate further.
It is appropriate here to insert a word about confidentiality. Alternative dispute resolution proceedings are confidential. Things that are said to attempt to resolve the matter at these hearings cannot be used against the other party if the case does not settle and ultimately goes to trial.
The Effects of an Agreement
If you participate in an alternative dispute resolution to resolve your personal injury case, your attorney, along with the lawyer for the other side, will execute a written agreement for the court, documenting the terms of the agreement. It has the same strength and is enforceable just as any other written contract would be.
Contact Us About Your Personal Injury Case
For questions about your personal injury case, contact Brylak Law today.