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Why a Case May Not Be Settled

By Jonathan Hopes

A case is generally only settled if there is a feasible possibility That the defendant will lose the case. A case settles because people or companies with competing interests and viewpoints find a way to agree. Some people say that the definition of a good settlement is one in which everyone goes away a little unhappy: the plaintiff and her lawyer think they did not get quite enough money; the defendant and his lawyer or insurance company think they paid a bit too much.

There are many reasons why a case may not be settled, I will outline some of the basic reasons here, firstly the plaintiff's lawyer may be too high in his/her evaluation of the value of the case. Most cases can be valued quite well by looking at similar cases and assessing the value of your based on that precedent.  Often though the plaintiff's lawyer is not too high in their evaluation of the value of the case, but the plaintiff decides to not follow the recommendation of the lawyer for whatever reasons it may be. Quite possibly the insurance adjuster could be too low in his/her evaluation of the case. Even the lawyer for the defendant may be low in their evaluation of the case, and make a recommendation to the insurance company. The necessary information to evaluate the case may not be provided by the plaintiff's side to the defence. The plaintiff's side of the case may not respond in a timely manner to settlement proposals made by the defence.  Either side makes threats and promises it should not have made and paints itself into a corner which is hard to get out of and still save face.  When either side is slow to return phone calls or letters it is often a contributing factor to a case going to court.  Or when either side fails to consider the other side's viewpoint,  during actual settlement discussions, lawyers, adjusters, or clients fail to listen to each other, fail to recognize that the opponent's point of view or arguments may be valid.  There may be an honest disagreement about liability, or who is at fault In some cases there is a valid case for either argument. Obviously in situations like these its is too difficult for parties to come to an agreement on a settlement.  Likewise when there is an honest disagreement about the extent of the injuries or damages.  The governing law is unclear or unsettled, and one side wants to clear it up or make new law. Cases like these are often called "unprecedented" and create new trends in legal procedure, and are also cause for the case going to court.  In certain types of cases, the insured has the right to consent before there can be a settlement, and refuses to do so. When one or more of the above reasons are present, settlement is not impossible, but is difficult or delayed. The more of these factors that are present, the harder it is to reach a settlement. It is when these reasons are not present or are overcome that a settlement is normally reached.

There are many reasons why a case may not be settled but really only one reason why a case will be settled. A case will never be settled when the defendant is virtually assured of winning the case, where as if there is a real chance that the plaintiff will be awarded more than the defendant has valued the case at a settlement may be offered.


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