While our instinct is often to fight the allegations, there are serious ramifications when a case goes to trial and results in a large verdict against your agency
By Richard Spiers
Why should we settle this case, instead of taking it to court?
That’s a loaded question and one that carries a significant potential price tag. In a public safety lawsuit, there are many aspects to consider when deciding whether to go to court or settle.
The easy answer: If you can resolve the case faster and more economically without a trial, settlement may be the best option. However, there are times you need a court to make the decision as to who was responsible for the alleged damages and the ultimate value of the case.
A trial may be the best alternative in a public safety lawsuit when:
- The case investigation shows there were no findings of extreme negligence in the case.
- The claimed amount is small, but injuries or other damages sustained could drive up the eventual verdict.
- The plaintiff attorney makes extremely large demands and is unwilling to reduce them. Today’s attorneys normally start by making initial demands of well over a million dollars to try to intimidate the defense into making a large settlement offer.
- The alleged damages seem out of line with the incident or not directly related to the incident.
- The plaintiff attorney has presented unclear information or made claims the subsequent investigation has proven unfounded – something we often see when bystander or security camera video footage goes viral before an investigation is complete.
Assuming one of these factors doesn’t lead you straight into the courtroom, you face the question, Should we settle or try? Following are five factors to consider:
1. The Agency’s Reputation
Media reports regarding public safety incidents often begin before all the investigative details are known. If the agency has been involved in previous similar events, reporters will link the stories, especially if earlier incidents generated negative publicity. Such coverage can have a negative impact on your agency’s reputation.
Social media can also generate a large negative response. It is always worth reviewing social media posts and monitoring comments posted in reaction to local news stories. These comments can compound the negative effects of press coverage – all of which can spell trouble in court.
It is not only the agency’s reputation that can hurt your case. If your town is experiencing political or financial issues that have generated anger, you may face a jury of people upset about raised taxes or other issues – who may, in turn, punish the town with a negative verdict.
Another factor to consider about reputation: If you choose to try the case and it results in a large verdict for the plaintiff, you will face even more negative publicity, which in turn can have an economic impact on your municipality.
2. The Reputation of Involved Counsel
Some plaintiff attorneys are minor celebrities, familiar to jurors from their TV and internet commercials and backed by the reputation they deliver big money for their clients. Many plaintiff firms are now focusing on negatively publicized cases, such as fatal shootings and wrongful incarceration. Some of these firms pursue such cases all over the country, not just in their local area.
Cases involving well-known attorneys drive news headlines and garner increased public interest. If you’re facing a well-known plaintiff attorney, a trial becomes more complex. The defense attorney will have to work hard to make sure the jury respects them, too.
3. The Venue Where the Suit Is Filed
It’s always important to research your venues to determine where the case may end up being filed. Plaintiff attorneys will often choose to file public safety lawsuits in federal court, alleging a civil rights violation, due to the possibility of being awarded large payments for attorney fees. Even on a verdict as low as $1, the attorney can file a request for more than $1 million in attorney costs. The court may not grant them the entire amount, but the award is generally significant.
Federal cases pose another challenge: The jurors may come from communities very different from yours in terms of demographics, economics and political views. If you live near a liberal jurisdiction, the plaintiff attorney will likely push to file there.
In contrast, if the state/county venue where you are located is known as a liberal, plaintiff-friendly jurisdiction, the suit will be filed in state court because state and local courts have a record of generating larger verdicts than federal court.
There are several economic aspects to consider. Trials do not normally get scheduled right away and the cost of defending the case for more than a year can add up. Defense costs include more than just the defense attorney’s fees. Sometimes experts are hired to examine the case, provide their evaluation and attend depositions requested by the plaintiff attorney. These experts can generate large fees. Agency employees may also be required to provide depositions, initiating overtime or backfill costs.
5. Immunities and Tort Caps
Immunities and tort caps differ by state. Some states are known to have stronger immunity laws than other states, but they do not always hold up when a case is tried. Juries can determine the immunity and tort cap don’t apply due to a level of extreme negligence – something that happens frequently on most of the highly publicized cases. To ward off this possibility, consider filing an immunity motion to get the judge’s opinion, which in turn can open the door to get the plaintiff to consider a settlement discussion.
There are many other issues to consider that may not be part of the lawsuit filed but can have a strong impact on a jury decision.
For example, if the damages claimed include emotional distress or trauma to the plaintiff’s family, it could affect the jury’s evaluation of a case. Or, if you’re involved in a case that shares similarities with other high-profile cases that have generated large verdicts, you may wind up facing a similar verdict.
Still not sure? Bring in a mock jury or a focus group – a group of local, uninvolved people who can help you learn what parts of the case are going to resonate the most with jurors.
If after reviewing the above factors you choose to pursue a settlement, there are several strategies to consider. Putting money on the settlement table can get the plaintiff more willing to settle. They will be able to obtain the settlement dollars within a few weeks of the agreement. Make sure the plaintiff understands that even if they win at trial, the defense will appeal the verdict and it could take over a year for that to be resolved.
If the plaintiff agrees to attend a mediation, ensure the mediator chosen for the case does not have a reputation of siding only with the plaintiff. Learn what you can about the plaintiff and the family ahead of time. Are they planning to spend the settlement money on something specific? Are they hoping to achieve a change to agency policy or training? Know what requests you’re willing to accommodate.
In addition, try to obtain a demand from the plaintiff’s counsel before the mediation to learn their case analysis. Prior to the mediation, determine the amounts for your initial offer as well as the highest amount you’re willing to offer during the mediation session.
A structured settlement can often help resolve a public safety lawsuit and generate an agreement that benefits both parties.
No Easy Answers
The question of whether to settle or try a case isn’t an easy one. While our instinct is often to fight the allegations, there are serious ramifications when a case goes to trial and results in a large verdict against your agency, including negative publicity and bad precedent for any future similar cases. Would you rather explain to the media a $500,000 settlement or a multi-million-dollar verdict?
The bottom line: Look beyond the lawsuit papers to determine whether it is better to settle or try a case.
About the author
Richard Spiers, a market ambassador for Lexipol, started in the insurance industry in 1980 and has been a claims executive in the reinsurance and excess marketplace since 1985. He was with Genesis Management and Insurance Services, a subsidiary of General Reinsurance, for more than 20 years, until the end of 2017. Rick has extensive experience handling the wide array of claims faced by public entities, K-12 school districts and the higher education sector.