Have you been injured in a car accident, hurt on the job, harmed by medical malpractice, or even bitten by the neighbor’s dog? You might consider filing a lawsuit against the party that caused your accident and injuries.
In California, attorneys settle personal injury cases of all kinds, from a slip and fall at your local grocery store to a severe collision with a semi-truck on the 101.
After you hire a settlement lawyer, the other party’s insurance company may approach them with an offer to cover your injury, personal property damage, or other losses. Will your lawyer accept the settlement? Can they accept the settlement without your approval?
Can My Settlement Attorney Accept a Settlement Offer Without My Consent?
Your attorney can’t accept any offers without your consent. Under the California Bar Association (CBA) guidelines, a settlement lawyer must communicate any settlement offers from the other party (the defendant) to their client.
This guideline applies to written and oral offers, such as a phone call between lawyers representing each party.
Furthermore, the American Bar Association (ABA), which governs all state bar associations, lists accepting a settlement without the client’s consent as an ethical violation. The ABA’s Model Rule 1.8 states that your settlement attorney must inform you about any offer and its terms before they can legally settle your case.
Personal injury clients have the final say in whether their case goes to trial and how much to settle for. Your attorney’s responsibility is to present your legal options and provide advice that protects and advances your interests. Their recommendations can help you make a better-informed decision.
Personal injury cases can be very emotional for many plaintiffs, so your lawyer will also help manage your expectations and provide a cool head during negotiations.
What Is a Fiduciary Duty to a Legal Client?
Settlement lawyers have a fiduciary duty to their clients. In a personal injury case, a lawyer’s fiduciary duty is to act in a manner that benefits the client financially. Lawyers must work in their client’s best interests at all times.
Attorneys take client communication seriously. They will inform you about every development of your injury case, especially if the other party is discussing settlement terms. Fiduciary breaches are a serious matter, and lawyers are careful to operate by a strict code of ethics for their clients.
Settlement Offers from the Defendant—Common Scenarios
Each personal injury lawsuit unfolds differently, but many follow a similar pattern from filing to closure. One of the most common scenarios is the other party’s insurance company directly approaching the plaintiff with a private settlement offer.
The insurance adjuster will try to entice you with fast money and urge you to cut your settlement lawyer out of the loop. They may try to intimidate you about what a trial will entail or make you believe that this settlement is your only opportunity to see a dime from the accident.
So can you accept a settlement from the other party without consulting your settlement attorney?
The question isn’t can you, but should you?
Remember, your personal injury lawyer is your advocate and your legal advisor representing only you. The other party’s insurance company represents the interests of the insurance company and its client. They do not represent you or your best interests.
You have the right to accept a settlement, but negotiating with the other party without your lawyer can often come back to bite you.
The initial filing of a personal injury suit starts with a demand letter from the plaintiff and their attorney. This letter lists the plaintiff’s damages and how the defendant caused the injuries.
Demand letters typically ask for the highest possible settlement amount, with an eye toward any future medical treatment the plaintiff may require to fully heal and regain their independence. Insurance companies are notorious for responding with lowball counter offers.
Many times, both parties will try negotiation before going to trial. The strength of your case will determine whether your settlement attorney can quickly secure a fair offer for you or whether the other party decides to risk going to trial.
The Complex Process of Legally Settling Personal Injury Claims
The waiting process after filing a personal injury lawsuit can be interminably slow for many plaintiffs. It’s not unusual to be frustrated or wonder why your case is taking so long, especially if you’re counting on the settlement money to pay for your hospital bills or repair a damaged vehicle so you can get back to work.
Insurance companies know this, so they often approach with a fast offer to settle.
However, trust your personal injury law firm. Your lawyer is likely waiting for you to reach your maximum medical improvement (MMI) before settling the case. Why? Because under California law, you get only one chance to recoup losses from a personal injury claim. Once you settle, that’s it—you cannot ask for further damages.
For example, suppose a semi-truck along the 405 in Los Angeles collided with you. You broke your leg and landed in the hospital. The trucking carrier’s insurance company offers you a settlement that covers your hospital bills and leaves a little left over.
The money looks good, and you need it for your family, so you accept the settlement. But two months later, when your cast comes off, the doctor notices that your leg didn’t heal properly and you need surgery.
Personal injury law allows plaintiffs to recover damages for all medical costs stemming from the accident, so it should cover your surgery, too. But if you already accepted a settlement, you can’t ask for more money to cover the surgery. Now that expense is your responsibility.
Once your settlement lawyer has a better idea of what your total damages will be, only then will they draft the demand letter and file suit. Then the case moves forward to the discovery process, where each side exchanges information about the facts of the case.
Settlement Offers After the Discovery Process
Suppose the personal injury case is for a small amount. In that case, your lawyer may simply send a demand letter to the other party and skip the lawsuit filing, communicating directly with the defendant’s lawyer.
If the other party agrees that the demand is fair, they may settle for that amount, and you won’t have to go through the trial process. If they think the demand is too high, they may send a counter-offer, which you and your lawyer may accept.
However, if both parties cannot agree, the plaintiff may file suit, and the negotiation moves to mediation.
Mediation to Settle a Personal Injury Claim
Mediation is a process in which a neutral third party helps the plaintiff and defendant resolve the case. Mediators understand the law and can keep both sides focused, although they cannot rule in the case.
Mediation establishes ground rules, confirms the case’s progress, recaps the discovery process, and discusses any initial offers to settle. The mediator will meet separately with both parties and their legal teams to address any concerns. The goal is to see if they can agree on a compromise that is amenable to each side.
If mediation doesn’t work, your case will move to trial. A defendant and plaintiff may settle at any point in the trial.
The Settlement Process
You’re almost done—the other party has presented an offer to your settlement lawyer, and you both agree it is fair. Before the case settles, you must accept the settlement amount through your lawyer.
However, there is a rule you need to know about accepting settlements. Once your lawyer communicates to the defense that you accepted the settlement, there are no take-backs.
Your settlement attorney will carefully explain the settlement terms so you know what it contains. These terms include the total settlement, the payment details (such as either a lump sum or installment amounts), the release of liability to the other party, and any confidentiality clauses regarding the suit.
Reasons Why Your Settlement May Be Taking a Long Time
Each case has different requirements and circumstances, but there are a few possible reasons that yours is taking a long time to resolve.
You Haven’t Met Your MMI for Injuries
As mentioned above, your settlement lawyer wants to ensure that your settlement covers all of your medical costs, not just the bills you incurred right after the accident.
Waiting until you’ve made a full recovery, or as close as possible, allows them to get a better sense of your actual damages, such as:
- Current and future medical treatments
- Pain and suffering or emotional trauma
- Present disabilities that require modifications to your home or vehicle
Your lawyer will prepare your demand letter with your needs in mind. It may take some time to determine the extent of those needs.
The Defendant Is Stalling
Sometimes, defense lawyers may drag their feet to get out of paying any settlement at all. They may also try to force the plaintiff’s hand for a lower offer because they know the plaintiff cannot wait any longer for funds.
However, a personal injury lawyer experienced in dealing with insurance companies can tell when a defendant is stalling and will take measures to stop it.
There Are Factual or Legal Issues with Your Case
Sometimes, the accident details may be in question, which can cause a case to take longer. Other times, the legal system itself may have a backlog. Many systems are still catching up after COVID delays, and this holdup can delay your case from coming to trial.
Personal Injury Lawsuit Settlement FAQs
When you have your initial free consultation, your lawyer will answer specific questions about your case. Many clients have the following common questions about the personal injury suit process.
Can I Renege on a Settlement Agreement?
No. Once you’ve communicated your agreement to the defense, you cannot withdraw from the settlement agreement.
Both parties can agree to void a settlement, but they rarely do. However, if one party committed fraud and you realize it after the fact, you may appeal to the courts to void the settlement.
Can My Settlement Attorney Modify My Settlement?
Yes, but only if your circumstances significantly change and you can prove it.
The court may grant modifications if:
- The legal requirements for the settlement changed
- Laws regarding your case have changed
- One party offered a settlement fraudulently or under false pretenses
Personal injury cases are final and legally binding, so address all of your concerns with your lawyer before signing the agreement.
What if I Disagree With My Lawyer About Taking My Case to Trial?
Sometimes, lawyers and clients disagree on how to pursue a case. But remember, your lawyer has the legal experience to make the best recommendation for you, so don’t be afraid to ask for a detailed explanation of their reasoning.
Good lawyers will ensure that their clients understand the strength of their case and the potential outcomes at a trial. They want you to have the best information to make decisions about your claim.
Do You Need a Settlement Attorney?
If you’re pursuing a personal injury claim, do not hesitate to contact a lawyer with experience filing these lawsuits. If an insurance company has offered you a settlement and you aren’t sure whether it’s a suitable offer for your injuries, consult a personal injury attorney today.