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Alternatives to Going to Court

Hoffkins Legal Services, LLC May 3, 2024

Insurance companies bargain very hard with people who are making claims. Paying out claims is part of their business so they are experts at it. An average person who has a claim for personal injuries from an auto collision or from a slip and fall is at an extreme disadvantage in negotiating a settlement with an insurance company. That's why you need an attorney who understands the law, and can present a strong case for you in court. In the end, the only real bargaining power is your ability to bring the insurance company into court and get a jury award that will make the insurance company have to pay.

The threat of having a jury award of money damages is the only thing that will make an insurance company pay. Insurance companies are multimillion dollar corporations. The only thing they fear is when an arm of the government orders them to pay money. That fear is the only thing that gets them to bargain.

A good attorney can take your case to court and get good settlement or a good jury verdict. However, going to court has its problems. Going to court can take a long time. In some courts around Connecticut it can take one to two years before you can have your day in court. Going to court is also expensive. First, there are filing fees. Next there is the cost of expert witnesses to testify for you. The usual expert witness is the doctor who treated you for your injuries. In a slip and fall down case you might also need an expert to testify that the property owner should have taken some additional type of precautions.

Clients often wonder if there are any alternatives to going to court. One alternative is mediation. In mediation, a mediator will sit down with both parties and try to find a way to get the parties to agree on a figure that is acceptable to both sides. In the mediation, the plaintiff would be there with his or her attorney. The insurance company for the defendant would send a claims representative and an attorney to represent them.

You must put a lot of thought and strategy into your mediation to get the most out of it. First, you must pick a good mediator. A good mediator will be an attorney who has considerable experience in the practice of litigating auto collision injuries. I personally prefer using one of the retired judges who do this kind of work. The mediator will have to understand the issues to be able to understand whether or not you are putting forward strong arguments, or if the other side is putting forward strong arguments. The mediator has to be able to speak to both sides with authority about what amount of weight a jury might give to certain arguments. The arguments you put forward might pertain to theories of liability or why certain injuries should be included in the final settlement amount. The other side would of course have their counter-arguments.

There is also strategy about when you go to mediation. If you ask for mediation too early, the insurance company may perceive that you are not serious about going to court. I usually like to discuss mediation with the insurance company only after I have filed the case in court, and after both sides have exchanged discovery. This way, we have put our "cards on the table" and the insurance company has seen the amount of injury that my client has suffered. They should also have already taken my client's deposition, so they can assess how good of a witness my client would make for the jury. Their attorneys would also have seen me in court at one of the pretrial conferences, and would have been able to assess my level of confidence in my case. I have had some very good results with mediation.

Sometimes mediation may not be the best option. Sometimes I can assess that the insurance company's adjuster is not being flexible enough that I believe that mediation is going to work. In that particular case, I may recommend that we try arbitration.

Arbitration differs from mediation, since an arbitrator is empowered to make a binding decision on all parties. A mediator has no such power, and can only try to get the parties to come to an agreement.

In an arbitration, evidence is presented as if we were trying a case. I would have my client testify as to how the collision occurred, as well as to her injuries and the pain she has suffered since. I might also have her doctor come and testify as to his diagnosis, the treatment he prescribed, and her prognosis for the future. The defense would probably have their client testify. The defense might also have their own doctor testify about what injuries he or she thinks the plaintiff might have incurred because of the collision. After all this, an arbitrator would have to decide which of the parties he or she finds credible. If he finds the defendant more credible then the arbitrator may give a defendant's verdict and award no money. If he finds the plaintiff more credible, he will probably award some money. It is entirely within the discretion of the arbitrator as to how much he will award. In essence, the arbitrator is sitting as a jury would at trial.

So what is the advantage of going through arbitration or mediation. The biggest advantage is that it saves time. If you have to wait for a jury trial in the court system you may be waiting over a year and perhaps two. The downside of using an arbitrator is that a jury may be willing to award more money than an arbitrator. If the arbitrator is someone who knows what other juries have awarded for similar injuries or what cases for similar injuries would settle for, then he would likely award that amount. A jury would not be so educated about other verdicts and might award you more money.

In the end, I usually recommend mediation over arbitration if I can. If you settle a case in mediation, then you know you will come out with an amount you can live with. If, you don't settle, you still have the right to continue with your trial. In arbitration, you are going to have to accept whatever decision is made. That decision may not be something you can live with.