How Does a Lawyer Settle a Lawsuit?

Most Texas personal injury cases are settled out of court. The person or other entity against whom you are filing a claim will want to avoid a trial, and avoid being on the hook for court costs and attorney fees should it appear likely that you will win the case. So what is involved in the settlement process? How is the final number for damages payments calculated?

Once discussions between the two parties formally begins, there is what’s known as the “discovery period.” This allows for the collection of all relevant documents, records and evidence by both parties. The discovery period is why it’s so important to keep all bills, correspondence and statements relevant to the case. Even if you don’t think it’s directly related – such as your pay stubs – you may need to have it on file, especially if you’ve missed work as the result of your injury and are trying to reclaim lost wages.

Interrogatories will often be filed by either side, and it allows for information pertaining to the case to be requested. These are usually submitted in writing, and you will have the opportunity to object to any question you or your lawyer feel have no bearing on the case. The defense can also ask for medical records, work history or even emails if they can show that it has a relation to the case.

There are a few things the defense can do to extend the settlement process or have the claim dismissed entirely. If you are going to be using expert witnesses, the defense may not want to discuss a settlement until they know who the witnesses are. No matter what they do, it’s imperative that you are open and honest about everything with your attorney, so they can properly prepare for anything that might be brought up during discovery.

Sometimes, the actual settlement discussion once the discovery process is over is quite simple. If the attorney’s know each other, they may very well negotiate a settlement over the phone. Other times, the settlement process can be long and drawn out, as offers and counter-offers are traded and argued over. This is especially true if the defense is an individual or a company who may be trying to save public face; they don’t want to go to trial, but they don’t want to pay more than they have to either.

Most of the time, the two parties will meet to discuss the terms of the settlement during mediation. This can be conducted by a private mediator or a judge. This can last a few hours, or a few days depending on the complexities of the case. If you and your attorney reach a point where you are ready to accept a settlement offer, be absolutely sure; once you tell the defense that you accept, there is no going back.

The main question on your mind is likely, “when will I be paid?” Depending on who the defendant is, this could vary. If it’s an individual who may not have a lot of money, then it could take a while to receive full compensation; a payment plan may have to be worked out unless they have good insurance coverage. Texas law limits wage garnishment to 25 percent of every paycheck. It’s likely that you will need to keep your lawyer after the settlement process just in case the defendant tries to renege on the payment.

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