In cases where the primary injury is mental and emotional, many clients consulting with a trial lawyer will ask about the prospects for reaching a settlement early. Some cases for mental injury damages do settle before a lawsuit is ever filed. Some cases are settled only after a lawsuit is filed, but before a trial begins. But other psychological injury cases are not resolved without going through a courtroom trial.
Accident cases are difficult to settle early
Many accident cases will involve insurance claims that are made before any lawsuit is filed. At the claims stage, your personal injury attorney is dealing with insurance adjusters. Typically, no defense attorney is involved unless a lawsuit is filed.
Insurance adjusters are not attuned to mental and emotional injury cases. Therefore, these cases are nearly impossible to settle for full value at the claims stage. Without a sophisticated understanding of the nature of mental and emotional injuries, an understanding that few insurance adjusters possess, it is not possible to properly evaluate this type of case. Also, mental and emotional injuries do not fit into the formula insurance carriers usually use to evaluate cases on the claims level. Adjusters are accustomed to assessing physical injuries. But when a person suffers from a trauma-related suicidal depression which disables them from leaving the house, it does not make sense to base a settlement on the person’s physical condition only and not consider the person’s mental condition.
Although every physical and mental injury is unique to each individual, mental and emotional injuries vary more from one individual to another than do most physical injuries. The strength or the weakness of a particular mental and emotional injury case usually depends on a number of factors not easily discernable in a settlement demand letter, particularly the credibility of the plaintiff. Unfortunately, the claims handling process does not allow much opportunity for an insurance adjuster to assess the credibility of plaintiff.
Your personal injury trial lawyer might attempt to educate the insurance adjuster about the value of your mental and emotional injury case. But an unsophisticated claims adjuster may not appreciate the complexities of psychological claims and the impact of psychological injuries on a person’s behavior and quality of life. Moreover, it is unlikely that the insurance adjuster will be able to obtain significant settlement authority until a defense attorney has had an opportunity to fully investigate and evaluate the case. The insurance company will not generally be “sold on” your credibility about the severity of your mental injury until your case has been tested in litigation by the interrogation of a defense attorney, a comparison of your “story” to the available records, and usually a defense psychiatric or psychological examination. It is doubtful that even a knowledgeable adjuster, who finds you credible, will be able to convince his or her superiors of your credibility, injury, and the full value of your claim without more substantial evidence that can only come through formal discovery after a lawsuit commences.
Except in rare cases where the insurance carrier seems especially motivated to make an early and reasonable offer to settle, or the client insists on prompt settlement or there is only a low policy limit available for coverage of the client’s claim, it is best not to expect an early settlement in an accident case.
Sexual harassment or abuse cases are more likely to settle early
Mental and emotional injury cases are unique because they can stem from any type of tort or wrongdoing (although not every mental and emotional injury is comparable). While mental and emotional injuries arising out of accidents, product failures or non-psychotherapist malpractice may be the most difficult of any case to settle early, the same type of injuries stemming from sexual harassment or abuse may be the easiest cases to settle early. Why? Because defendants in sexual harassment and abuse litigation will sometimes prefer to pay a reasonable settlement for the case to not be filed at all because of the fear of publicity and other exposure.
Furthermore, sexual harassment and abuse cases involve a great deal of risk for many potential defendants because of the large verdicts that juries frequently award in these cases.
Finally, even unsophisticated defendants, claims adjusters and employers will usually recognize the fact that severe sexual harassment or abuse can cause significant mental and emotional injury. Therefore, convincing these evaluators of the credibility and seriousness of a potential plaintiff’s mental and emotional injury claim is not as difficult as it would be if the injury stemmed from a car accident or a slip and fall. For all these reasons, a plaintiff’s attorney who is knowledgeable about mental and emotional distress injuries has a better chance of reaching an early settlement in a sexual harassment or abuse case than in an accident case.