For many folks pursuing injury claims, one of their first questions involves how likely they are to reach a settlement. As with virtually any question, a lawyer is probably going to tell you it depends on several factors. Anyone worried about their odds of prevailing should consider these four issues.
Is the Defendant Insured?
While it's still possible to pursue a claim against an uninsured defendant, a personal injury attorney will usually prefer to see an insurer involved. Foremost, insurance just increases the odds the defendant can pay. If they have insurance, they'll almost certainly refer the case to their policy provider.
Secondly, insurers have strong incentives to pay all legitimate claims. Contrary to the bad TV ads you may see with a personal injury attorney talking about insurers fighting claims, that's not the ideal scenario. A company benefits from paying legitimate claims because it reinforces the value of insurance to policyholders. Likewise, it's costly to fight tooth and nail, suffer a lawsuit, and potentially lose.
How Clear Is the Defendant's Liability?
It's also important that the defendant is likely liable for what happened. American law focuses on whether a defendant was the proximate cause of a victim's injuries. If there are questions about the victim's conduct prior to an accident, that could cloud things. For example, someone involved in a slip-and-fall incident at a store probably has a weaker case if they were running at the time.
Is There a Defendant?
As ugly as it might seem to not have a case due to the lack of a defendant, it does happen. Suppose you suffer an injury on a sidewalk next to a crumbling property. Worse, it turns out the property's owner died without heirs and no one is responsible for maintaining it. Unless local law pins the maintenance requirements on the city, this could be a tough case.
Likewise, you want to be sure you've found the right defendant. For example, there might be questions if an accident occurs at a business in a mall. Depending on how the mall and the business assigned liability in the rental agreement, one or the other could be liable for on-site accidents.
What Sort of Liability Is Involved?
Generally, liability falls into two categories: negligence and strict liability. In a negligence case, you have to prove the defendant's actions were the primary cause of your injuries. That can lead to questions and encourage a legal fight. With a strict liability case, the only question is whether the defendant did the thing that led to the injuries. If they did, then they're supposed to pay.