Going to trial has consequences to consider
If you have been hurt by the negligent actions of another person or entity, you may consider filing a personal injury lawsuit.
But have you ever considered that the outcome of the case could become public? Whatever state the personal injury case occurs in, a trial's outcome will nearly always be public.
There are exceptions to this rule, but the 1978 landmark case Nixon v. Warner Communications established the general concept that public trial details are matters of public record.
What might happen as a result of public records?
Many people may not care if the lawsuit and outcome is public record, but that is not always so.
To understand the far-reaching consequences of this decision, consider the following case.
A North Carolina man received a four year sentence for drug-facilitated sexual assault of a 15 year old girl. While justice was served in this criminal case, if the family decided to file a personal injury lawsuit against the convicted criminal, it could go to trial instead of being settled out of court.
According to North Carolina state law, trial records are public records and may be accessed by anyone.
Think about this – put yourself in the parents' shoes:
If the lawsuit went to trial, the girl could have to deal with the humiliation of a public trial.
Imagine being the parents of the child. She already has had to endure the torture of being assaulted and the criminal trial. Imagine if she had to have the entire sordid case revealed to the public in a new trial. Is that something you would want for your own child?
Perhaps you would still go ahead with a lawsuit and go to trial if necessary, but the public nature of court trial records must be considered in some personal injury complaints.
Going to trial can be embarrassing, and may not pay
Most personal injury lawsuits across the US never actually go to trial. Estimates vary from 80-92% of cases are settled out of court. There are many reasons for this, but studies indicate that settling is usually better financially than going to trial.
For example, a study published in 2008 by DecisionSet, a consulting firm, found that most plaintiffs who declined to settle ended up getting less money at the trial. The findings were based upon a study of 2054 cases that ended up going to trial from 2002-2005. It was later published in the Journal of Empirical Legal Studies.
The study determined that defendants were wrong to go to trial far less often – only in 24% of the cases studied. Plaintiffs were wrong to go to trial in 61% of studied cases.
On average, it was found that plaintiffs lost $43,000 by not settling. Defendants, while they were wrong far less often, paid dearly if they were wrong – the cost of going to trial for them was an average loss of $1.1 million.
Imagine if you had suffered a serious personal injury in an embarrassing case – such as the above statutory rape case – went to trial, did not recover damages, and had the trial go into public record. That would be devastating for the family to endure.
Such consequences need to be considered carefully by anyone pondering whether to settle or go to trial.
Should you settle or go to court?
As you consider whether to file suit, whether to settle or to go to trial, the case going public is something that you must weigh carefully. Whether to settle or to go to trial always will depend on many factors. Both have advantages and disadvantages.
Settling out of court – pluses and minuses
There are many things to consider about settling. On the plus side:
- Less expense: Personal injury trials involve lawyers, paid expert witnesses, long depositions during discovery, travel costs and more. While your lawyer may accept contingency payment, there may be other fees you're still responsible for.
- Privacy: As mentioned earlier, public trials are public record. Details of a civil lawsuit can be kept private if they are settled out of court. Most of the sensitive details about the case will be kept out of the court documents. There are many settlement agreements that have a confidentiality clause as well.
- Money: You will clearly be paid much sooner if you settle out of court. If you have serious car accident injuries, you may desperately need that money to recover. You also may be out thousands of dollars in lost wages.
- Predictable: You can never tell what a jury will do. On the other side, you can dictate the terms of a settlement. Or, you may at least work with the other party to come up with an amicable agreement.
- Final: A settlement cannot be appealed. It is final. A court judgment can be appealed, drawing the case out much longer.
Going to trial – pluses and minuses
There are some cases that are difficult to settle out of court. Some personal injury cases are more problematic and the chances of going to trial is higher. These cases usually involve two factors:
- Liability: This is whether the other party was negligent in a way that contributed to your injuries. If the defendant argues that he is not liable – or you are partially liable for your injuries – he may go to trial. He may not have to pay you a dime if he wins.
- Causation: Did the conduct of the defendant, even if he was really negligent, legally cause your injuries? This can happen if you had a pre-existing condition. Or, perhaps you have been in several car accidents in the last year. The defense may argue that your injuries were due to another accident.
If there are questions about either of those items, it may be difficult to settle the case out of court. Going to trial also has the benefit of giving the plaintiff their day in court and to be judged by a jury. Some plaintiffs do prefer to be judged by a jury rather than settling.
In the end, both plaintiffs and defendants must weigh the pluses and minuses of going to trial. It may be a wise idea to review your case with a personal injury attorney or defense attorney to determine the best course of action.