Settlement or trial

Most personal injury claims settle. A small share go to trial. The decision between them is not automatic and it is not the lawyer's to make. This page explains how the choice actually gets weighed.

It is general information, not legal advice.

What a settlement gives you

• Certainty. A known amount, now, instead of a range that includes zero.
• Speed. Payment in weeks rather than after a trial date that may be a year or more out.
• Lower cost. Trial costs — experts, exhibits, transcripts — come out of the recovery. Settling before trial keeps those down.
• An end. No testifying, no cross-examination, no appeal.

What a settlement costs you

It is a compromise. You accept less than the full value of a winning verdict in exchange for removing the risk of a losing one. If the insurer's best offer is well below what the evidence supports, settling means leaving money on the table that a jury might have awarded.

What trial offers and risks

Trial is the only mechanism that can force more than the insurer will voluntarily pay. A jury that sees the injury and the conduct clearly can award the full measure of the loss. But a jury can also value the case below the last offer, find the plaintiff more at fault than expected, or return a defense verdict. The result can be appealed. And the months to trial carry their own cost in time and uncertainty.

The 998 offer

California has a rule designed to push both sides toward reasonable settlement. A party can serve a formal offer to compromise under Code of Civil Procedure section 998. If the other side does not accept it and then does not do better than the offer at trial, that side can be ordered to pay the offering party's post-offer costs, and in some cases expert witness fees. A well-timed 998 offer changes the risk calculation for the insurer, and a 998 offer from the defense does the same to the plaintiff.

Sources: Code Civ. Proc., § 998 (offer to compromise; cost-shifting consequences).

How the decision gets made

Near an offer, you get a straight assessment: the realistic range of trial outcomes, the probability of each, the added cost and time of trying the case, the collectability of any verdict, and how the offer compares. Then you decide. The lawyer's job is to make the recommendation clear and the trade-offs honest. The client's job — and the client's alone — is to say yes or no.

Where the trial firm comes in

If the case is going to trial, I bring in a trial firm under one client agreement. The fee is split between me and the trial firm, not added to — your cost does not change. I stay counsel of record and stay involved.

More: how this works.

Common questions

Who decides whether to settle?

You do. A lawyer can recommend for or against an offer and explain the risks, but the client alone decides whether to accept a settlement or go to trial. That decision cannot be delegated.

What is a 998 offer?

A formal written settlement offer under Code of Civil Procedure section 998. If the other side rejects it and then fails to beat it at trial, that side can be ordered to pay certain costs, and sometimes expert fees, from the date of the offer. Both sides can use it to create pressure.

What are the risks of trial?

A jury can award less than the last offer, or nothing. Trial takes longer and costs more, which reduces the net if you win. The verdict can be appealed. Against that, trial is the only way to get more than the insurer is willing to offer.

If my case goes to trial, who tries it?

I bring in a trial firm under one client agreement, at no added cost to you — the fee is split between us, not stacked. I stay counsel of record and stay involved through the trial.