The following is adapted from Unthinkable.
On April 28, 2020, my mother was killed while she was out for her evening walk. I’m certainly not out to bash the criminal justice system, but the reality is that, in my mother’s case, that system failed to deliver anything even close to the measure of accountability acceptable to my family.
My mom was killed in a gruesome, terribly violent way. She left behind me, my sister and brother, our spouses, all of our children, her two sisters and their families—and a gaping hole in our family. The criminal justice system produced no charges against the company operating the truck that killed her and, in the end, only a $180 fine against the driver.
From our perspective, the harm and the consequences didn’t come close to matching up. My mother is no longer here to speak for herself, and the criminal justice system barely mustered a whisper on her behalf.
Fortunately, that doesn’t have to be the end for us, because the civil justice system is there too. It provides the opportunity to be heard—to have her heard—in a meaningful way we can direct and control. It presents the same opportunity to every family that has endured a loved one’s tragic death or injury caused by the negligence of another.
The 2 Stages of a Civil Case
If you or a loved one are the victim of a catastrophic incident, I don’t want you to think that deciding to bring a civil case means that you have to end up in a courtroom in a public courthouse. It doesn’t necessarily mean you and your family will have to rehear and relive the gruesome details of your loss, then wait for a jury to return with a verdict you don’t actually control.
It can mean just that. But the vast majority of civil cases don’t end with a jury’s verdict. They end in a private settlement before the civil trial even begins.
In fact, many are settled before a formal lawsuit is even filed. That’s because a case can be built by your lawyer and presented to those at fault, their insurance companies, and their lawyers for informal negotiations in a way that makes clear that, if the case is not fairly resolved, a lawsuit is imminent.
Settling a Civil Case
What does settling a case actually entail? It means signing documents agreeing to release the person or organization that is at fault and their insurance company from any further financial responsibility to you in exchange for a negotiated amount paid to you.
In nearly every case, some aspects of the settlement are confidential—typically, at a minimum, the dollar amount of the settlement. It can be in the family’s interest to keep the settlement amount private, if only to protect them from friends or distant relatives who ask for money. (Yes, that really happens.) For some families, confidentiality is acceptable; for others, it’s not. It’s always a matter for negotiation.
Depending upon the circumstances, a settlement is the preferred outcome for many families. It removes the risk of losing in cases where the events are in question, the significance of your loved one’s injuries are in doubt, or there’s an issue of comparative fault that leaves two parties pointing their fingers at each other.
But even if none of these issues are in dispute, many families are able to achieve a settlement that demonstrates real accountability on the part of those at fault. And, the settlement may avoid cost, time, and the emotional toll of going to trial. If there’s a company involved, a settlement may create an opportunity for you to insist on changes in their practices as part of a settlement that a judge and jury couldn’t order.
Weighing the Pros and Cons of an Early Settlement
What argues against an early settlement? Maybe the family doesn’t consider a small insurance policy sufficient to balance their loss; perhaps they want to find out as much as they can about the facts and details of what happened before deciding whether to settle later.
Filing a lawsuit will force the other people involved to give statements under oath. The very act of filing a lawsuit creates a public document that, at the very least, puts your allegations on record.
I’m not suggesting one way is necessarily better than the other. It depends on your circumstances. But I do think it’s important to know that most cases end in a settlement, not a trial. I also think it’s important to understand how the civil justice process works before making your decision.
The civil justice system serves to empower you in seeking accountability for your loss. So, weigh your options carefully, and make sure you fully understand the opportunities and significant benefits, as well as the potential costs and risks, before proceeding.
For more advice on what to do if you or a loved one are victimized by a catastrophic incident, you can find Unthinkable on Amazon.
A founding partner of the law firm Bachus Schanker, Kyle Bachus limits his practice to representing individuals and families in catastrophic injury and wrongful death cases nationwide. For more information, visit KyleBachus.com.