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No matter the area of law, there will ultimately be a time where a major choice will need to be made. Do we proceed with trial, or would we rather settle the lawsuit now? This settlement versus trial debate hinges on several factors. How strong is the evidence? How competent is opposing counsel? Who is the judge? What is the likelihood of success? Risk aversion is quietly one of the more important topics rarely discussed outside of discussions directly with attorneys.
Risk aversion is the idea that some litigants are more prepared to risk their case for a greater reward than others. It stems from the old saying that a bird in the hand is worth two in the bush. In other words, would you rather take the sure thing or risk what you have more a superior prize. There will be several points where this decision-tree becomes relevant, but none of them greater than during mediation.
Mediation is required in most counties for most cases. From car accident style personal injury claims to divorces in a family law setting, before you go to trial, most courts will require that you take part in some form of alternative dispute resolution. By the time you reach mediation, the opposing party has likely conducted a thorough investigation. Both parties have some sense as to the benefits and costs of moving forward, and the formal negotiation is a great opportunity to find common ground.
During these settlement discussions, the question of risk will surely arise.
For a personal injury case, the main question might be – if we turn down this $50,000 settlement today with the hopes of winning $100,000 – what are the chances we do better than the offer presented now? Each individual litigant will have a different answer to that question because each client has a different perspective on risk. Money might be a motivating factor for Client A, while an expedient resolution and avoiding trial might be more important for Client B.
During a divorce, the question of money might be similar, but the mediated issue might also concern rights to visitation with a child. If there is a 30% chance that you will do better at trial, is it worth turning down a semi-favorable visitation schedule at mediation? That question depends on how you perceive risk and the specific circumstances surrounding the case.
The issue of risk is ever present in criminal defense more than any others. The concerns of plea bargaining are rampant and perhaps justified. However, for many criminal defendants, pleading guilty to a minor offense to avoid the risk of jail time and prosecution of a felony is a worthwhile tradeoff.
At the end of the day, each case is different, and every client has different priorities. Views on risk aversion are important, and during mediation these questions should be raised, so parties injured in a car accident, getting a divorce, or being subject to prosecution have all the information necessary to make an informed decision. At the law offices of Magnuson Lowell PS, we prioritize information and education for our clients. We strive to provide valuable and creative options that provide each client a better idea about their risk tolerance before mediation and trial. Call today for a free case evaluation!
Yes. Blog over...
Just kidding, but not really. Police involvement after a motor vehicle accident can be a major hassle. Between waiting for officers to arrive and having to deal with questioning and investigation reports, calling 911 after a car accident might seem like more of a trouble than a benefit. In some cases, that might be true. However, once you leave the seen of a collision, you have no idea how cooperative the other driver will be or if their story will change to your detriment. Getting the police involved early may provide the necessary evidence to win your personal injury case.
At the scene of a motor vehicle collision, investigating officers have many tasks.
Health and Welfare. First and foremost, they will ensure the safety and health of the parties. You may not realize just how hurt you are until a trained officer is asking you questions. They can quickly contact paramedics if the need arises. As importantly, they will note down specific injuries in their reports. If you advise the officer that you have substantial neck and back pain, that note will help your case down the line.
Statements of the Parties. Stories change over time. If the at fault party tells you at the scene they are accepting responsibility, without something in writing, there is nothing stopping them from changing their tune. Police often get written statements or alternatively provide notes about discussions with parties. This documentation may be crucial for determining liability after a collision.
Photographs. Sometimes, in the heat of the moment, parties are not great at documenting the scene. Police will show up and take photographs of the important pieces – broken materials, skid marks, vehicle positions, injuries, etc.
Traffic Infractions. While perhaps not admissible in court, the officer may make a determination of fault in their report. This typically comes with a traffic infraction. This can provide good information to an insurance company to help boost your case.
Witness Information. If witnesses stayed at the scene, collecting and organizing witness information without police help may be difficult. Officers will make sure to get statements from eyewitnesses and will take down witness contact information to make following up with witnesses much easier.
Insurance Information. When it comes to your personal injury case, knowing information about the at fault party is crucial. The police will take down each party’s phone number, address, name, insurance company and policy number. This information will help your attorney locate the person and insurance coverage.
Calling the police may be a hassle, but it is clearly worth it in every situation after an accident. Now, sometimes, police might not come to the scene. If the collision was on private property, they might not be able to help. Sometimes, the police might take so long to arrive that you leave beforehand. Not having the officer’s report is not the end of the world, but it can provide key evidence to help you with your personal injury case. At the law offices of Magnuson Lowell PS, our experience attorneys know what evidence you need to best serve your claim. Call today for a free case evaluation!