Pretrial Settlement Conferences, Mediation, Arbitration, and Trial of Personal Injury Cases Explained
There are a number of ways to reach a resolution of a personal injury claim. 98% of the time a resolution of a personal injury case is a settlement, but there is more than one way to get there. The other 2% of the time a resolution is a jury verdict which only happens after a jury trial. The 4 avenues to a resolution are one or more of the following:
- Pretrial Settlement Conference
- Pre-Litigation Process
- Litigation Process
Pretrial Settlement Conference
A Pretrial Settlement Conference in a personal injury case is usually a facilitated settlement negotiation with a sitting/active judge. The judge who will oversee the Pretrial Settlement Conference depends on the jurisdiction. For instance, in Will County, there is a dedicated judge whose sole responsibility is Pretrial Settlement Conferences and Will County requires every case to attempt a resolution via Pretrial Settlement Conference before it can go to a jury trial. In Cook County, the parties can agree on any judge in the Law Division. In DuPage County, Kane County, and Kendall County, it is most common to have the judge currently presiding over your case to be the judge who will run the Pretrial Settlement Conference. Pretrial Settlement Conferences take place at the courthouse where your lawsuit is filed.
While each jurisdiction handles the logistics a little differently, the actual Pretrial Settlement Conference is nearly identical regardless of which Illinois Circuit Court you find yourself in. The attorneys for each party to the lawsuit will file a Pretrial Memorandum with the pretrial judge at least 1 week prior to the Pretrial Settlement Conference. These briefs usually focus on the major issues of the case which are liability and damages. Liability means who is at fault and why. Damages is a term used for all the things the Plaintiff is asking to be compensated for, such as: past medical bills, future medical bills, past pain and suffering, future pain and suffering, past loss of a normal life, future loss of a normal life, past lost wages, future lost wages, disfigurement, loss of consortium, etc. The Pretrial Memorandum will tell the judge what the position of the party is and the reasons why that party is right. The judge will read all of the Pretrial Memorandums and know the case before the parties arrive for the Pretrial Settlement Conference so that the parties can focus on resolution and not arguing over the facts or evidence. This means almost every minute of a Pretrial Settlement Conference is spent talking about the settlement value of the case and relaying offers and counter-offers between the parties.
Here are the most important things our personal injury clients need to know about a Pretrial Settlement Conference:
- This is a facilitated negotiation, not a hearing on the merits of your case. We will not present evidence or testimony aside from what is included in our Pretrial Memorandum.
- You will not have to testify or answer any questions – your role is to be present or available by phone so that you can either accept or reject settlement offers as they are made.
- You don’t have to settle. If the other side’s best offer isn’t fair, we won’t accept it. This just means we will continue with litigation with an eye toward a jury trial. It is common to get better settlement offers as we near trial, so there is still a chance the case will settle.
- Most of the time you can speak with the judge if you want to, but only if you attend the Pretrial Settlement Conference in person. Otherwise, you and your attorney will be provided your own space to speak privately. Your attorney will leave you from time to time to speak with the judge or the other parties and then return and fill you in on what happened in the other room. Typically, the only person you will speak to during a Pretrial Settlement Conference is your attorney.
- Pretrial Settlement Conferences are FREE. Courts want to clear cases from their busy dockets, so the judges have an incentive to help us settle your case. It doesn’t hurt to explore settlement, even if you don’t settle, at least you know what you’re saying “no” to.
- If you plan on attending in person, ask your attorney if you are allowed to bring your phone into the courthouse.
See the Pre-Litigation Flowchart for a visual representation.
Mediation Of Injury Cases
A Mediation is another form of a Pretrial Settlement Conference, but is usually more involved. A Mediation usually takes place with a retired judge. There are a few well-known alternative dispute resolution companies in our area that offer mediation as a service, for example ADR Systems or Webster Egan Mallen Mediations. Unlike Pretrial Settlement Conferences, a Mediation isn’t free. The retired judge will bill for their services by the hour, and a typical, straight-forward, automobile collision mediation will usually cost $2,500 – $5,000. The more complicated the case, the longer it takes, the more expensive a mediation is.
Each party’s attorney will draft and submit a Mediation Package to the retired judge before the scheduled Mediation. The judge will learn the case and the parties’ positions before the Mediation takes place. The Mediation will typically be hosted at the office of the company the retired judge works for. The parties and their attorneys may start out in one conference room together, but they are soon separated so that each party is in their own room with only their attorney.
Here are the most important things our personal injury clients need to know about Mediations:
- This is a facilitated negotiation, not a hearing on the merits of your case. We will not present evidence or testimony aside from what is included in our Mediation Packet, but it is common for the facts, evidence, and arguments/defenses to be discussed more thoroughly in a Mediation when compared to a Pretrial Settlement Conference.
- You must attend the Mediation in-person except in very rare circumstances.
- Most Mediations are non-binding which means you don’t have to settle. If the other side’s best offer isn’t fair, we won’t accept it. This just means we will continue with litigation with an eye toward a jury trial. It is common to get better settlement offers as we near trial, so there is still a chance the case will settle. Binding Mediations are Mediations where the judge’s recommendation as to the settlement amount is binding on all parties.
- You will spend most of the Mediation speaking only with your attorney. However, unlike a Pretrial Settlement Conference, the retired judge will spend more time discussing the strengths and weaknesses of the case with the parties and their attorneys.
- Mediations can be expensive, but it is almost always true that a Mediation is cheaper than a Jury Trial.
- Because the retired judge is likely to spend more time on the Mediation, they tend to have higher success rates when compared to a Pretrial Settlement Conference. A Mediation can take anywhere from a couple hours to days/weeks, depending on the complexity of the case and number of parties.
Arbitration As Another Option Before Trial
Arbitration is best described as a mini-trial. The rules of evidence are relaxed, the procedure is less formal, and usually the arbitration occurs in a conference room and not a courtroom. Arbitrations can be conducted with 1-3 arbitrators who are usually attorneys familiar with the area of law at issue and/or retired judges. Arbitrations can be binding or non-binding depending on the agreement of the parties. A non-binding arbitration would allow either side to reject the arbitration award by paying a fee. A binding arbitration means that the arbitration award cannot be rejected and the parties have agreed to accept the award. Here is what our clients need to know before an arbitration:
- This is a hearing on the evidence of your case.
- You must attend the arbitration except in very unique circumstances.
- You will likely have to testify. Your attorney will prepare you before arbitration to help refresh your memory of the important events and so that you know what kinds of questions will be asked of you.
- The other attorney will be permitted to ask you questions as well.
- The arbitrators will also accept medical records and discovery depositions or reports of non-parties as evidence without formal foundation which means fewer witnesses need to testify at arbitration.
- After hearing the testimony and argument of the parties at arbitration, the arbitrators will review the evidence submitted and reach an agreement on the arbitration award.
- For a non-binding arbitration, the parties have 30 days to reject the award or it becomes binding.
- Arbitration is generally more expensive than mediation, but less expensive than a jury trial.
Trial And Litigation Of Personal Injury Lawsuits
Most personal injury cases are tried in front of a jury of 12, also known as a jury trial. In other areas of law, and occasionally in personal injury, cases can also be tried in front of a judge – this is called a bench trial. Trials can last anywhere from a few hours to a few months depending on the complexity of the case and the volume of evidence required to prove it. There is a lot to know about trials…too much to fully write about on our website, but here is some basic information our clients should know before their case goes to trial:
- The trial’s outcome is most likely permanent, though either side can file an appeal if they believe there was a meaningful error during trial that hurt their case.
- You will need to attend. Usually, the plaintiff will need to be present for the whole trial – this may mean taking off work for several days or weeks. There are some circumstances where the plaintiff or defendant may be excused for some or all of the trial, but that is an exception, not the rule. You should dress in business casual attire. Dress like you are going to church with your grandma.
- You will need to testify. Your attorney will prepare you for trial, refresh your memory about the important details, and practice questions and answers with you so you feel comfortable with what it will be like.
- The other attorney will get to ask you questions, too.
- There will be many witnesses – some will testify live in front of the jury and some will have their testimony recorded ahead of time in an “evidence deposition.” Some courts even let witnesses testify live by remote video (e.g. Zoom). You must testify live.
- Your attorney will be eating, sleeping, drinking, and if he/she gets to sleep at all, dreaming about your case for weeks or months leading up to trial. For your attorney, this is what being a trial attorney is all about. Careful thought and preparation goes into every word, every piece of evidence, and every gesture used in front of a jury. We get one chance and we need to make sure we give them everything they need to get it right.
- Take notes, pay attention, and let your attorney or their team know if you have any observations or important information you want to discuss. It is often best to pass a note to avoid distracting anyone during trial.
- After the plaintiff rests, the defense will have a chance to call witnesses and present evidence.
- Once the parties have finished presenting evidence, each side delivers a closing argument.
- Next, the jury goes to the jury room to deliberate. Once they have reached a verdict, the bailiff will deliver the verdict to the judge and either the judge or the foreperson will read the verdict out loud.
- After trial, there are typically some motions that need to be filed with the court to wrap things up and it can take 30-60 days for the verdict money to be received from the defendant.
- If either side appeals the verdict, the wait will be significantly longer.
- Jury trials are unique to the United States and the right to a trial by jury is a constitutional right. The process is not perfect, but it is the best system in the world.
- Juries can be unpredictable – placing the case in the hands of 12 strangers is an uncomfortable proposition to be certain. They almost always get it right, but there are times when they get it wrong. A jury trial is always a gamble compared to a settlement, but it is also the only way to a fair recovery in the face of an unfair settlement offer from the insurance company.
- Jury trials are expensive. The additional costs include expert witnesses, evidentiary exhibits, evidence depositions, and doctor deposition fees.
Trying cases is rare. Less than 2% of filed lawsuits in Illinois are resolved by a jury trial, but when we get the opportunity to try a good case we go full throttle until it is done. We work up every case as if it will be tried – that means we aggressively conduct discovery, take depositions and ask the right questions, and strategically set the case up for success at trial. We use focus groups to explore and test the theories of the case, word choice, witness or plaintiff testimony, openings, and closings. When we walk into a courtroom for trial, we are ready and so are our clients.
Your Naperville Trial Attorneys
There are a number of ways to resolve your case, but the best outcome is only achieved by working every case up like it will go to trial…and being willing and able to try the case when/if the time comes. Our attorneys work tirelessly at perfecting their craft and can bring decades of experience, hard work, and dedication to the courtroom for you. We try cases and represent clients in Will County, DuPage County, Kane County, Kendall County, Cook County, and other counties in the Chicagoland area.