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.
See Mediation, Arbitration, or Going to Court: Which is Best?
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.
Norman J MacDonald says
How can you find out if an attorney, out of state, settled a law suit in your name, and did not tell you, but kept the money?? This is believed to have happened to a family member of ours, by an attorney who is rumored to have unscrupulous practices. Is there a way to check up on this??
Ian Pisarcik says
Norman,
I’m sorry this happened to you. Settlements aren’t always public, so there isn’t necessarily a way for you to easily look this up. However, every state has a State Bar Association. In each bar association, there is a department that handles attorney disciplinary investigations. You can call this department (for the state where the attorney is located) and explain the situation to them. They will be able to follow up with the attorney and investigate the matter.
Madison P. says
Hello, in the state of Michigan lawsuit against former employer for a harassment is it
a public Record?
Please and Thank you ☺️
Ian Pisarcik says
Madison,
The court filings (including the Complaint) will be public record unless the judge grants a request to keep the records private.
Tirrell says
I was in a really bad accident in a rollover and I had safety defects in my car the defects were no seatbelts and the airbags the dealership name will not be said bc it’s one of the biggest used car dealerships in America and the manufacturer has a net worth 7 times the dealership just want to know if they settle in these type of cases
Ian Pisarcik says
Thanks for the question.
The vast majority (about 80-90% according to the most recent data) of personal injury cases (including product defect cases) settle. With that being said, it’s impossible to know for sure whether a case will settle or not. For that reason, it’s a good idea to hire an attorney who, while willing to settle, is not afraid to go to trial.
DIANNE LAWLEY says
In regards to a wrongful death lawsuit that settled out of court. Would there be written record on file?
There were minor children who did not receive any compensation 1979
They are now wondering where the money went.
Their mother refuses to talk to them about it.
What can these adult Children do at this point?
Thank you
Ian Pisarcik says
Dianne,
The court maintains records of these cases. I would recommend reaching out to an attorney in your area to help you review the case and see if the adult children have been wronged.
J says
How can you find out if a civil suit was filed against you in a different county?
Ian Pisarcik says
J,
Contact the clerk’s office at the court in question.
Fernando R says
I was being sued, I settled out of court. We never got to that level. Will this show up on my record or credit check, and will it affect my chances at landing a job. Or possibly even buying a home.
Ian Pisarcik says
Being sued won’t impact your credit score or affect your chances at landing a job (so long as the court doesn’t ultimately rule against you, which it did not). The fact that you were sued is public (were someone to search for it), but it won’t affect you in any negative way.
Darryl says
I’m need to know how much my lawsuit settled out with my lawyer put in 20000 now he’s saying he only got 10000 and he taking out fee from that leaving me with 4800 i think he’s holding back on the other 10000 how can I find out and what can I do i pick up check next week
Ian Pisarcik says
Darryl,
I would ask your lawyer for a copy of the settlement agreement. The settlement agreement will be signed by both parties and will state the amount of the settlement. In addition, in most cases, the settlement agreement is also filed with the court.
steph says
Fernando, I agree with Ian, since you settled the case. However the filing of a civil lawsuit can affect your FICO. Nobody knows what algorithm is used so by how much, who knows? Information collectors pick up whatever is considered public information anywhere, and do it fast. Even being the Plaintiff can hurt your score, though again, by how much, nobody knows.
You settled, if you took a hit on FICO, it’s gone by now since the suit is closed.
Ian Pisarcik says
Thanks for the comment, Steph.
Ronny says
Hi my mother in-law suffer an accident in her job. How do I know if she has a case. When the accident happen. Her employee said she was not working. How can that be if she had clocked in at 5:00 am in the morning and the accident happened around At around 10:00am in the morning she felt at work and she was in the restroom. floor bleeding 🩸 four about and hour when someone found her. Know she is incapable of walking do to the accident. She’s in a wheelchair for life. But her employer said that she suffered a stroke. But the doctors said otherwise. And apparently someone open place a lawsuit on there her name. What can we do! If that’s not true!
Ian Pisarcik says
If your mother was injured at work and the accident was work-related, your mother can recover damages by filing a workers’ compensation claim. You can learn more about workers’ compensation claims in California here. Keep in mind that you have a limited amount of time to file a claim. Accordingly, I would recommend meeting with a workers’ compensation attorney immediately. Most initial consultations are free and the attorney will be able to tell you how to proceed.
Pt says
I am a plaintiff in a Jones Act federal case. I am also a participant in the Address Confidentiality Program for survivors of domestic violence and have an active threat. The lawsuit was filed with my full name in error and need to file motions to make it anonymous and with only initials.
Can the suit be made private? As in not shared publicly.
I am doing this pro se at this time as the original counsel did nothing (did not contact other party in any manner) for thirteen months (I’ve been told he is known for this but it seemed he may have dementia?) and was released due to ineffectiveness.
Ian Pisarcik says
Federal Rule of Civil Procedure 10(a) generally requires lawsuits to name all parties. However, litigants are permitted to proceed anonymously when nondisclosure is necessary to protect a person from harassment, injury, ridicule, or personal embarrassment (see Doe v. Stegall). You’ll need to file a motion with the court requesting that the lawsuit proceed anonymously.