Most cases here, even in Kansas, in a very conservative case, will settle, as high as ninety percent will settle before a lawsuit even has to be filed. Then you have that ten percent that a lawsuit is filed on, and even of those, only about one percent of the overall cases end up going to trial. Even in the conservative state of Kansas where jury verdicts are not as generous as they are in other parts of the country, because we have conservative jurors and the environment here is such that the perception is that jury verdicts should be lower than other parts of the country, most cases do settle before they get to trial.
The reason that is the case is that it is just not the plaintiffs who do not like the uncertainty of trial, but the defense side also does not like the uncertainty of trial and if you have a case that is properly prepared by knowledgeable, adept, smart, aggressive, comprehensive attorneys, then it may settle. Attorneys that look at everything that needs to be looked at in your case, including pre-existing conditions, including what you do for a living, if they look at all of these things and properly have a good grasp of all of these things, then the case will be able to get settled for a fair amount as to what that case is worth.
It is when the lawyer does not have a good grasp of his or her case that the case does not get settled. If the lawyer has a good grasp, then they can educate the insurance adjuster and/or the defense lawyer and the case gets settled through that education process. Sometimes the insurance adjusters will not settle the case because they have unrealistic expectations, an unrealistic analysis of cases, but when they turn it over to their lawyer, most of the time, ninety-nine percent of the time, the lawyer then has a more realistic expectation defending the case as to what is going to happen and then the case gets settled.
In all reality, the only reason a case does not get settled is that the education process failed somewhere and that can happen. One side or the other has unrealistic expectations, too large or too small of a jury verdict. Sometimes that is due to a lack of understanding of the particulars, the fine details of the case by both sides and when you get the particulars, then the case usually settles. When the case does not settle, a lot of times it is just a bad case from a defense side and they realize that they are going to get hit with an extremely large jury verdict or it is a bad case from a plaintiff’s side and they are going to get hit with the zero-sum or very small jury verdict.
If you have a good lawyer they will avoid the second. If you have a good lawyer with respect to the first, sometimes that happens and you just have to try the case when the other side is not educated or just absolutely refuses to settle. But that happens in a very rare circumstance because they have a fear, “they” being the defense, has a fear of going to trial and the uncertainty of that trial and being hit with a very large jury verdict even more. If the case is properly prepared, there should not be much fear on behalf of the plaintiff because they have been properly prepped and properly educated about the process. The case should be settled for a lot more than what the defense is offering, and therefore, it should be tried since the defense is offering an extremely small sum of money.
Our advice has always been that the plaintiff, injured party, injured collision victim or injured victim, or a slip and fall or premises liability, whatever type of accident, almost all of them are as a result of some negligence or maleficence by somebody. When those individuals are caught up in this particular situation, we advise them not to give a recorded statement without first consulting a lawyer. It does not mean that they necessarily have to hire a lawyer before they give a recorded statement, they just need to make sure that before they give that recorded statement, they have sat down and talked with a knowledgeable personal injury lawyer who has handled their type of case or cases.
For example, if it is a medical product liability case, they want a lawyer who has handled that particular type of medical products liability case. So that lawyer then would sit down with them and advise them about their case and educate them about the tricks that these adjusters might try in asking them questions in a certain way. It is not so much that the personal injury lawyer is afraid of the truth. What the personal injury lawyer’s afraid of is the accident victim being led with a misleading question into a defense that would not be there, but for that misleading question. When the insurance adjusters ask an inappropriately misleading question, if they have talked to a lawyer or have a lawyer present, they will know, or that lawyer will know how to handle that particular type of question.
Most of the misleading questions are compound questions, questions that ask two questions at once and your answer to that compound question, whether you answer yes or no for example, in either event, you are in trouble. So if you do not recognize that it is an inappropriate question that should not be answered, or cannot be answered with a yes or no, then you may answer that question inappropriately. So you have to be very careful about giving recorded statements. In most events, I tell people unless you have a slam dunk case and the adjuster is willing to only ask questions about a particular area and not take very long and not ask compound questions or misleading questions, f the adjustor were to agree to all of that, then maybe you could give a recorded statement, but I do not suggest you give a recorded statement without a lawyer being present.
First and foremost, I always tell people do not give a recorded statement until you consult with a lawyer, a personal injury lawyer, a lawyer who has handled your particular type of case, and then once you have consulted with them, you will know what to do.