Should You Settle or Go to Trial?

Getting Compensated for Mesothelioma: Should You Settle or Go to Trial?

Despite what we usually see on court TV dramas, most lawsuits never make it into a courtroom.  Instead, the parties agree to a settlement long before trial preparation even begins.  There are benefits to both settlements and to trials which you will have to consider.  Regardless of what you expect the outcome of your case to be, your lawyer should always begin preparation for trial immediately once your claim is filed.

A settlement is simply an agreement between the complainant and the defendant.  Settlements can be agreed upon at any point before or during a trial.  For all parties involved, there are many benefits to choosing a settlement over going to trial:

  • Settlements allow the mesothelioma victim to receive compensation faster. Settlements can often be reached very quickly whereas mesothelioma trials can go on for well over a year.
  • Settlements offer clear results of the case.  If the case goes to trial, no party can be sure of what the outcome will be, such as massive damages being awarded or the case being thrown out.
  • Lawyers and defendants tend to prefer settlements because they are cheaper and less time consuming than trials.
  •  If the complainant dies during trial, then the case will have to be re-filed by the complainant’s family as a wrongful death suit. This can be a burden on the family.

While settlements are usually preferred for all parties in mesothelioma cases, they are not always the best option.  Settlement amounts are usually much less than damages awarded during a trial.  The amount of compensation you can expect varies depending on numerous factors including the amount of mesothelioma-related expenses (treatment, lost income, etc), the severity of the disease, the level of the defendant’s culpability (whether they knew about the asbestos risk or not), and whether key witnesses or evidence is available.  In 2001, the average mesothelioma settlement was about $1 million compared to $6 million if the case made it to trial.  Keep in mind that this does not include the lawyer’s fee which is usually about 40%.

There have been numerous cases where much larger settlements or damages were awarded.  One of the highest amounts ever awarded for mesothelioma was to Roby Whittington, a 70 year old retiree of US Steel.  In 2001, Whittington received a diagnosis of mesothelioma and took his case before a jury.  He was awarded $250 million in damages.  In another case, Thomas Brown Jr., was awarded $322 million by a jury for asbestosis.  There have been dozens of asbestos-related cases in which complainants received more than $20 million. However, there have also been trials where the plaintiff was not awarded anything at all.

Another benefit of trial over settlements is that settlements are completely final with no chance of gaining compensation for future medical problems.  When a mesothelioma victim settles, then he/she must sign a legally-binding contract saying that no future lawsuits related to the same issue will be filed (note that, if you have an asbestos-related disease and get a settlement, you can still file another lawsuit later if you develop mesothelioma).  If you choose to go to trial and you win your case, then you will be able to seek further damages as necessary.

Considering the monetary benefits of a trial over settlement, it can be very tempting to hold out for your day in court. However, the choice between settlement and trial is usually one of urgency: if you have a poor prognosis and are not likely to survive a trial, then a fast settlement may be preferential over the hope of larger awards.  Further, if you need financial compensation quickly, then settlement is the best option.  Many states have laws about how soon after a settlement the defendant must make payments.  With trials, the defendant can appeal the ruling which means it may take years before you or your family sees any compensation at all.  Also keep in mind that settlements and trial damages are often awarded in sums rather than bulk payments.  With a settlement, you will have more power in negotiating how and when you receive your payment.

Even if your mesothelioma lawyer is encouraging you to settle, it is ultimately your decision as to whether you want to go to trial or not. Also, it is important for you to realize that settlements are negotiable. If you are not satisfied with the first settlement offered, then you should hold out for a higher settlement.  In some personal injury cases, settlements may be offered right before trial or even during trial when the defendant realizes that the case is going unfavorably.  Most defendants in personal injury lawsuits such as for mesothelioma expect to settle and they expect you to negotiate on the settlement amount.  Often, just the treat of going to trial can make the party offer a much larger settlement.  When meeting with your mesothelioma lawyer, make sure to discuss the benefits and disadvantages of settlement and trials and to reassess these benefits/disadvantages as your case progresses.