Why Settle for Less?

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Why Settle for Less?

9 Good Reasons to Bump Up Your Settlement Demand Midway Through the Case!

Peter Kolp, Esq., Trial Attorney, Kolplaw

9/25/2024

“Come on, you cant do that, you made a demand already. You are just going to piss off the adjuster.” – Defense Attorney

“We have good reasons”

Far too often, we receive cases from firms with low demands, and we find ourselves in the position of informing the judge and defense counsel that, since we’ve taken over, we are raising the demand.

Raising settlement demands midway through a personal injury case can be a strategic move for plaintiff counsel based on a number of factors. Here are some compelling reasons why plaintiff counsel might increase their demands:

1. Discovery of New Evidence

  • Additional Medical Evidence: If new medical reports or expert testimony reveal that the plaintiff’s injuries are more severe or permanent than initially thought, this could warrant an increased demand. For example, discovering long-term complications or disabilities might drastically increase the value of the case.

  • Witness Testimony: Depositions or witness statements obtained during discovery might strengthen the plaintiff’s case, showing more clear-cut liability or greater damages.

  • Surveillance Footage or Documents: If new evidence, such as surveillance video or internal documents from the defendant, establishes stronger liability, this can increase the case’s value.

2. Worsening of the Plaintiff’s Condition – “THE ‘AFTER AFTER’ ”

  • If the plaintiff’s health deteriorates over the course of the case, with new medical treatment, surgeries, or long-term care becoming necessary, the settlement demand would naturally rise. This is particularly relevant if the initial prognosis was optimistic and later findings show the injuries to be more debilitating or permanent.

3. New Economic Losses

  • Increased Medical Bills: If ongoing medical treatment becomes more extensive or costly than originally projected, raising settlement demands to account for the additional expenses is warranted.

  • Lost Wages or Diminished Earning Capacity: If the plaintiff cannot return to work or has a diminished earning capacity, this can significantly increase damages for future lost wages, justifying a higher demand.

  • Future Medical Expenses: Expert opinions may indicate that future care (e.g., surgeries, therapy) will be needed, increasing the overall compensation required.

4. Liability Becomes Clearer –

  • Defendant’s Admission of Fault: If, during depositions or discovery, the defendant admits to some form of liability, the plaintiff’s position becomes stronger, and it makes sense to demand more compensation.

  • Incriminating Evidence: If key evidence, such as internal safety violations or prior similar incidents, emerges, demonstrating clear negligence on the part of the defendant, the value of the case may increase.

5. Defendant’s Bad Faith or Legal Missteps

  • Defense’s Delay or Obstruction: If the defense engages in delay tactics or fails to comply with court orders, the plaintiff may raise their demands to account for the increased costs and time incurred.

  • Insurance Company Bad Faith: If it becomes apparent that the defendant’s insurance company is acting in bad faith or intentionally delaying settlement, plaintiff counsel may raise demands to leverage a stronger position for future negotiations.

6. New Expert Testimony

  • Stronger Expert Opinions: The introduction of expert testimony, such as from a medical expert, life care planner, or vocational expert, could show the plaintiff’s damages are much higher than initially projected.

  • Economic Expert Analysis: The use of an economist to project long-term financial impact, such as future medical costs or lost earning potential, could also justify raising settlement demands.

7. Publicity or Risk of Trial

  • Increased Publicity: If the case garners media attention or public interest, the plaintiff’s attorney may raise demands knowing that the defendant may want to avoid negative publicity or the uncertainty of a public trial.

  • Defendant’s Risk at Trial: If it becomes apparent that the defendant may face a large jury verdict, plaintiff counsel might increase demands to reflect the greater risk for the defense.

8. New Legal Precedents or Similar Case Settlements

  • Comparable Settlements or Verdicts: If recent verdicts or settlements in similar cases indicate higher awards, plaintiff counsel may adjust the demand to reflect current trends.

  • Changes in Law: If there is a new legal precedent or statute that enhances the plaintiff’s position, counsel may raise demands accordingly.

9. Insurance Coverage Disputes

  • If discovery reveals that the defendant has excess or higher insurance policy limits than originally thought, or if there are additional policies that could apply, the plaintiff may raise their demand to reflect the increased coverage available.

Raising settlement demands strategically aligns with stronger liability or a clearer picture of the full extent of damages. If the defense perceives that the case has grown stronger for the plaintiff, they may be more inclined to settle at the increased amount.

Don’t settle for less, take that case to trial . . .