Although costly, both financially and emotionally, litigation is often times an effective avenue to utilize when seeking relief for a civil injury or an accident. Before proceeding with finalizing formal litigation, potential litigants should consider a much less expensive option that has the ability to be equally as effective as litigation; private settlement.
What options are available to potential litigants?
Most people are familiar enough with the Court system to know that when a civil legal matter arises, the party initiating the action has several options:
- They may seek the intervention of the Court immediately.
- They may propose mediation or arbitration.
- They may draft a settlement offer for consideration by the opposing party to avoid litigation.
Litigation, mediation or arbitration does not have to be the only remedies available to injured parties; reaching settlement outside of the Court can also provide civil relief.
Settlement
Settlement involves the parties planning to litigate negotiating and compromising to reach terms that they can all agree to in an effort to avoid formal litigation.
When a litigant decides to extend a settlement offer, their attorney drafts a letter and a proposed Order to reflect their proposed terms, which will be sent to the opposing party or their legal counsel for their consideration. These offers usually have expiration dates, which act as a deadline to receive a response before litigation is sought, to prevent the opposing litigant from stalling the process.
If they agree, their attorney shall sign the proposed Order and return it to the other party’s counsel. If they disagree, they will negotiate until they reach an agreement or the matter’s trial date is reached.
Reaching settlement is phrased differently depending on which country the matter is litigated in; American attorneys may say “We settled the case” or “We reached a compromise agreement” while Australian attorneys would say “We reached out of Court settlement”.
When can parties reach settlement?
Settlement may be reached at anytime during this process. While it is most efficient to settle a legal matter as early in the process of litigation as possible, some parties may reach agreements the week before a Court date, or even outside the Courtroom as they wait for their case to be called before a Judge.
How often do cases settle outside of Court?
Private settlement occurs more often than most people would expect. Many potential litigants have reasons that they would prefer to avoid litigation, such as negligence that would result in a strict ruling against them. If a large company is at fault, they may be motivated to settle privately to keep the matter quiet, as Court Orders can be obtained from third parties.
For example, personal injury cases as a result of an accident are frequently negotiated separately and from the property damage portions of the matter. When a personal injury claim is filed, Justin Kimball from www.preszlerlaw-ns.com explains that it is often settled outside of court by the parties involved in the accidents and their insurance companies. If the initial offer provided by an insurance company was not satisfactory to the injured party, they have the option to personally sue the at-fault party to obtain further compensation. In order to avoid litigation, the at-fault party has motivation to put forth a generous settlement offer.
Litigation v. Settlement
When the intervention of the Court is sought to determine the disposition of a matter, the parties involved lose control over the situation. Litigation can be a lengthy process, as the dockets of most Courts are full of cases, and continuances may be granted if valid reasons support the request. After waiting months or even years for their case to be heard, a Judge will determine all details to resolve the matter after each party’s counsel has presented their case. The parties involved have no say in the Judge’s ruling, other than petitioning the Court to appeal an unsatisfactory outcome, which still does not guarantee a more favorable outcome.
If settlement outside of Court is chosen, the parties involved gain control of the outcome. In many cases, the attorney for the injured party is able to obtain a settlement offer from the opposing party that is better than what might have been awarded in formal litigation.
If a full settlement is simply not possible, reaching a partial settlement can be viewed as positive progress by a Judge.
What should the next steps for a potential litigant be?
If a potential litigant is considering bringing a civil suit, they should perform the following actions to ensure they have the best chance of receiving a good settlement offer or the ability to have their case presented well in Court:
- Type a summary of the events that occurred.
- Gather all relevant evidence
- Do not discuss the matter with anyone involved, or anyone who is close to any party involved.
- Do not post anything about the matter on social media.
- Consult with an attorney.
Closing Considerations
Private settlement is often viewed as a second place runner up to formal litigation. Despite the poor reputation settlement has received by a few unsatisfied parties, it has the potential to be more beneficial to an injured party than formal litigation.
Potential litigants should consult with an attorney to decide what the best course of actions for their legal matter are.
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