When you see legal movies or television shows, they almost always take place in court. This breeds a common misconception that most legal cases require trial. In reality, going to court is only one aspect of litigated cases albeit a very important one.
Not every type of lawyer goes to court. Many attorneys – perhaps most – handle transactional work that does not involve resolving legal disputes and might never see the inside of a courtroom. On the other hand, criminal defense lawyers might have to go to court for nearly every case they take as there are many mandatory hearings in criminal cases.
So, what about personal injury lawyers? There are certainly injury cases–especially higher value ones–that require court hearings and trials, but most cases settle without trial. Does this mean that personal injury lawyers do not have courtroom experience? Do you need to hire a lawyer who can represent you in court for your injury claim?
Always hire an attorney with trial experience who can do whatever it takes to obtain justice for you—including representing you at trial if necessary. Reach out to a personal injury lawyer for more information.
Options for Resolving an Injury Claim
Different personal injury cases follow different paths. Below are some options for resolving personal injury cases and getting the compensation you deserve for your injury-related losses.
For most injured people, particularly those harmed in vehicle crashes, the legal process begins by filing an insurance claim with the provider for the responsible parties. Your attorney will assess the damages you incurred and make a demand for compensation with the appropriate insurance companies. Your attorney will provide evidence to support liability, causation and damages directly to the insurance adjuster.
The insurance claims process is more informal. If the adjuster believes their insured is liable for your losses, they will make a settlement offer. This offer is typically not the most the insurance will pay as it is the early stage of a negotiation. A well-qualified and motivated attorney will nearly always negotiate for a higher amount by proving the extent of your losses and discussing the risks of greater exposure if the case proceeds to litigation.
If the insurance company makes a reasonable offer, you may choose to accept it. You sign an agreement (a “release”) ending the case and stating you will not take additional legal action regarding this specific incident and related injuries and losses. There is no need to file a lawsuit and go to court if your case settles early directly with an insurance company.
Settlements During Litigation
If you and your attorney agree that settlement offers from the insurance company are insufficient, your lawyer can escalate the matter by filing a personal injury lawsuit. While they must file the lawsuit with the appropriate civil court, filing a case does not mean you will automatically have to go to trial.
Much of the litigation process happens out of court, including discovery and ongoing settlement negotiations. Sometimes, simply initiating litigation is enough for an insurance company to change its tune and make a fair offer. These companies do not always want to foot the legal bills to defend against lawsuits. When they see you are not backing down without a fair settlement, their offer might improve significantly when your lawyer files a lawsuit.
You can settle at any time during the litigation process. Many people file lawsuits yet never go to court because they settle their case before it reaches the trial stage. That said, an attorney might still need to attend motion hearings or other in-court proceedings before a trial date.
The litigation process is difficult to navigate as it involves complying with many rules and procedures. Even cases that do not go to trial can involve going into court during the pre-trial stages. You need an experienced and qualified personal injury attorney to handle this process even if it is unlikely your case will end up at trial.
Going to Trial
The court will set a trial date if your case does not settle. If a trial occurs, you might spend days or weeks in court with your attorney representing you. Experienced personal injury lawyers have handled a case requiring a trial, which is important if that is needed in your case. You should have a trial lawyer who has regular and recent (last 2-3 years) trial experience as many personal injury lawyers do not actually try cases. Many, such as those you often see on TV or on billboards, do not try their own cases. They either settle at terms unfavorable to their clients or hire last-minute outside counsel to come in and try the cases (which are brand new to those lawyers).
The last thing you want is your attorney to be unfamiliar or uncomfortable with the trial process. This automatically puts you in a weak position as your lawyer might not know how to properly represent you and present a persuasive case to the judge or jury. If you lose at trial, you will typically receive no compensation and may have to pay certain costs of litigation to the other side. Recent and regular courtroom experience should be a priority when hiring a personal injury lawyer.
Trial is Rare, But Still Possible
Personal injury cases do not go to trial as often as many other legal disputes. Statistics indicate that a very small percentage of injury-related “tort” lawsuits are decided by a judge or jury as most resolve short of trial. However, there is always a chance your case will end up in that small percentage of personal injury trials.
The Insurer Denies Liability
For an insurance company to provide any compensation, it must believe its policyholder was responsible for causing the claimed losses.
Common examples where insurers accept liability include:
- Distracted driving;
- Driving under the influence of alcohol or drugs;
- Aggressive or reckless driving;
- Failing to reasonably maintain a property;
- Employing individuals who cause crashes or injuries to others;
- Other conduct that falls below the “standard of care” for reasonable conduct for a given situation.
Your lawyer can provide evidence of liability but an insurance company might still refuse to agree to settle. If an insurer believes that their policyholder was not responsible for causing another’s injuries, or that others share the responsibility, it can refuse to offer the settlement you deserve.
When you go to trial, the judge or jury will hear each side of the story and decide who should be held accountable and for how much.
Disagreements Over Your Damages
In some situations, an insurance company might accept liability for the incident but refuse to acknowledge the full value of your losses. In these cases, a personal injury lawsuit might go to trial solely for the judge or jury to decide how much money the liable party should pay you.
Trials over damages are common when you have complex or catastrophic injuries. Insurance companies regularly downplay the effects of life-altering injuries such as traumatic brain injuries, amputations, or spinal cord injuries.
That said, an insurer might also undervalue an injury that might seem minor but, in reality, has serious, costly and long-lasting effects. These might include back or neck injuries or other “soft tissue” (i.e. not bones) damage. An insurer might consider “whiplash” minor and limit its offer when your injury has many profound effects on your life. Your lawyer will need to present evidence at trial to show how your injuries have affected your life and the full value of all resulting damages.
Regardless of why your case heads to trial, you need to ensure you have a lawyer who can protect your rights and present an accurate and moving story of your situation. This involves offering evidence and legal arguments to support your injury claim and the compensation you deserve. Always inquire whether a personal injury attorney has recent and regular trial experience before hiring them so that if your case goes to trial you can be confident your attorney is prepared and capable.
Also important to note is that insurance companies know the lawyers who sue their insureds. Lawyers who do not try cases are not threats and, as such, their clients typically receive smaller recoveries. For insurance companies, trials are about risk. Having a personal injury lawyer who won’t, or doesn’t, try cases isn’t much of a risk for them…hence, lower pre-trial offers.
What to Expect if Your Case Goes to Trial
Going to trial can be an intimidating experience for any plaintiff. While your attorney can handle motion hearings and other pre-trial proceedings alone, you will usually need to attend, at least in part, if your case goes to trial. Often, plaintiffs must testify on the witness stand as part of a successful trial presentation.
When you have an experienced and qualified trial lawyer representing you, they can prepare you for trial using the latest and greatest techniques. They will go over the basics, such as what to wear, when to arrive, where to go, and, most importantly, how to testify and conduct yourself in front of the judge or jury. You can expect the judge and jury to make first impressions and watch your every move throughout the trial. If you have questions or concerns about heading into court, always address these with your lawyer ahead of time.
One of the most important parts of a jury trial is jury selection. You will not need to testify during this process as the attorneys ask questions of the potential jurors to see who can, or cannot, evaluate your case fairly and in an unbiased way. Once the jury is chosen the trial will begin. A “bench trial” is only before a judge so there is no jury selection if you opt for this kind of trial.
Every trial is different, but they all follow the same basic steps.
A trial will include:
- Opening statements by each attorney regarding the facts to be presented during the trial.
- The case your attorney presents on your behalf, including questioning witnesses and introducing evidence within the Rules of Evidence. The defense can cross-examine your witnesses and object to certain questions or evidence introduction.
- The defense’s case, including witnesses and evidence. Your attorney can cross-examine the defense witnesses and object to questions or evidence as appropriate.
- Closing arguments by each attorney, which can recount the facts the jury heard, as well as legal arguments in their client’s favor.
- In a jury trial, jury instructions the judge presents to the jury about the law applying to your case.
- Jury deliberations and a verdict, or the judge presenting his or her decision.
Most trials involve expert witnesses. Experts might include medical professionals who testify about your injuries and its effects or accident reconstruction experts who give testimony regarding the cause of a crash. Economists discuss the economic losses. Other experts are commonly presented to discuss their respective areas of expertise. Presenting expert testimony is complex and requires additional steps, so your personal injury lawyer must know how to accomplish this effectively.
Even with preparation from your lawyer, trial can be stressful. You are putting the entire outcome of the case in the hands of a judge or jury and you cannot risk presenting an inadequate case. Having the right attorney is critical, and it is preferable to have them handle your case from the start.
Ensure You Hire the Right Personal Injury Lawyer with Courtroom Experience
You might understand the importance of hiring a personal injury attorney with trial experience, but how do you ensure you hire the right one?
With injury law firms, initial case evaluations and consultations are free. This means you can have an attorney review your options and ask all your questions at no cost before deciding who to hire. You can also set up free consultations with multiple attorneys if you are unsure about the first one you speak with.
During your consultation, ask about the attorney’s trial experience as well as involvement in trial lawyer organizations such as their local or state trial lawyer boards. Leaders try cases and educate their peers. Followers do not. Hire a leader.
You Ultimately Choose Whether to Go to Court
When an insurance company makes a settlement offer, your attorney can review it and advise whether you should accept it. The decision to accept or reject a settlement offer is yours alone. You should always consider your lawyer’s advice, but if you believe the offer is too low you should voice your opinion. You can then discuss with your attorney whether to take your case to trial.
Never allow a personal injury law firm to push you into a settlement you are uncomfortable with. You can always get a second opinion to ensure you did not hire a settlement mill that refuses to ever go to court. A personal injury attorney should never hesitate to go to trial if the case requires it. Your attorney should prepare to represent you at trial if it protects your best interests.