If you were hit in a rear end collision, it is very unlikely that your case will go to trial. The majority of personal injury cases -- and almost all rear end collision cases -- are settled before or during trial. In this article, we'll take a closer look at settlement of rear-end collision car accident cases.
Rear end cases usually get settled because they are less complicated than the average personal injury case. Most personal injury cases involve issues of liability (who’s at fault) and damages. But fault in a rear end collision case is a given; there is almost never any doubt that the defendant (the tailing driver) is at fault. So the only issue to be determined in a rear end collision case is the plaintiff’s damages. Because there is only one issue, not two, to resolve in a rear end collision case, the parties will almost always be able to settle the case before trial and often without a lawsuit being filed.
As a general rule, you never want to make a settlement demand in a personal injury case until you have either finished your medical treatment or are very close to finishing. You want to be very close to your medical end result (also called MMI -- maximum medical improvement) before making a demand. This is because, until you have finished your treatment and know whether you have fully recovered or not, you and your lawyer cannot determine what your damages are. A good lawyer will wait until the client reaches a medical end result before making a demand.
If you reach a medical end result before filing a lawsuit, then you would make a settlement demand as soon as you reach finish your treatment and your lawyer gets your final medical records. But sometimes there are reasons why your lawyer might want to file the lawsuit before you have reached a medical end result. If your case is in suit, your lawyer is not going to be able to talk seriously about settlement with the defense attorney until the defense attorney has done all of the pretrial investigation (“discovery”) that he/she wants to do. The reason for this is that, once a lawsuit has been filed, insurers do not want to engage in serious settlement negotiations until they have all of the facts that they need to make a decision.
In bigger or more complex cases, defense attorneys will generally not talk seriously about settlement until after the plaintiff’s lawyer has identified the plaintiff’s expert witnesses. This is because they want to wait and see if the plaintiff’s lawyer has really done the work that is needed to make the case ready for trial. In settlement negotiations, the insurer has all the power. If the insurer is not ready to talk seriously about settlement, your lawyer will get nowhere in settlement discussions. Good plaintiff’s lawyers will wait until the defense attorney signals that the insurer is ready to talk about settlement.
If your lawyer is trying to settle the case before filing a lawsuit, he/she will send the insurance adjuster a written demand package with a detailed demand letter and copies of your medical records and bills. After that, they will generally negotiate by phone until they either settle the case or give up and a lawsuit gets filed.
If your case is in suit, your lawyer may not bother with a demand letter. Many lawyers just call up the defense attorney to discuss settlement, especially if they know each other. The lawyers will then go back and forth until they reach an agreement, if in fact they can agree. But if the defense attorney thinks that a demand is too high, he/she may simply ignore the demand or may say that the demand is too high and that the insurer will not make a counteroffer.
Most courts now require the parties to attend mediation to try to get the case settled. Mediation can be done with either a private mediator or a judge (one who has not been assigned to the case). The mediator meets with all sides in the beginning, and then meets separately with the plaintiff and the defendant to see if he/she can get the parties’ numbers closer together. Mediation can go on for hours or even days. Mediation does not always work, but it has a very good track record in getting cases settled, especially simpler cases like rear end collision cases. Learn more about mediation of car accident cases.
If you accept the defense attorney’s settlement offer, then the case is settled. All your lawyer needs to do to let the defense attorney know that you accept the offer is to tell him/her that you accept the offer.
The most important rule about settlements is that, once your lawyer tells the defense attorney that you accepted the settlement offer, the case is settled. In almost every state, this is final. If you change your mind about settlement five minutes after your lawyer tells the defense attorney that you accepted the settlement offer, you have almost zero chance of getting the court to reverse the settlement. So you should not tell your lawyer that you accept a settlement offer until you are absolutely certain that you want to settle your lawsuit for the amount of money being offered.