Resolving Car Collision Cases Part 2: Adversarial Process

Car Collision 2A personal injury following a car collision can resolve in many different ways. Part 1 explored options in negotiated settlements. This article will examine your options within the adversarial process, when pre-­litigation negotiation fails to give you a fair result and you file a lawsuit. The adversarial process can proceed while parties are still seeking negotiated settlement, as described in Part 1, but differs from negotiation in that it ultimately relies upon a third party to decide what the case is worth.

I. Non-Binding Arbitration

As an injured party, you have a right under Utah Code 31A-22-321 to elect non-binding arbitration to resolve your case. Arbitration is like hiring a rent-a-judge for the day – a three person panel or a single arbitrator – to resolve your injury claim. Section 321 arbitration is non-binding because if either party does not like the results, that party can appeal the arbitration result to the district court and put the case back on the jury track.

Section 321 arbitration is normally cheaper and faster than the traditional jury track. Because the statute allows for scaled back fact discovery and deadlines, you don’t spend as much time exchanging information, so you get to a decision faster. Then, because the Utah evidence rules are relaxed in arbitration, you can present your experts’ opinions through their reports, rather than through expensive live testimony.

Utah’s underinsured and uninsured provisions of the insurance code also provide for very similar non-binding arbitration options.

II. Binding Arbitration

Binding arbitration is very similar to non-binding arbitration in process, evidence rules application, speed, and costs. The primary difference between the two is that binding arbitration can only proceed if all parties agree to binding arbitration: You do not have a right to it and cannot be forced into it.

When all parties agree to binding arbitration, there is no appeal to the Utah district court absent fraud and/or very specific issues. That can be a good thing if the arbitrator or arbitration panel decides in your favor, but a serious downside if you don’t agree with the decision.

III. Jury Trial

A jury trial is the ultimate expression of the American legal system. Thomas Jefferson opined in 1801 that “Trial by jury is part of the bright constellation which leads to peace, liberty and safety.” Though Mr. Jefferson’s idealism doesn’t always play out in real-life courtrooms, a jury trial is still an important way for citizens to receive a fair adjudication of their cases when other methods fail to compensate them fairly.

A jury trial in a personal injury claim often provides the greatest chance for significant compensation after a car collision. Negotiation, mediation, and even arbitration have proven less likely to resolve the case with a large compensation. A jury trial, of course, can also go the other way, making it one of the most unpredictable ways to resolve a personal injury case.

Of all ways to resolve a personal injury case, a jury trial is the most expensive, the most uncertain, and the most time consuming… but it can also be the most fair.

CONCLUSION

Because each personal injury case is unique, and the facts vary significantly, attorney advice in each individual case will also vary. Most attorneys, however, will consider several different questions when giving their advice, based on their personal experience:

  1. How well does the injured party present himself/herself?
  2. What is the degree and extent of the injuries? Are they permanent?
  3. How do the injuries impact the injured party? A hand injury in an accountant impacts the accountant differently than a hand injury in a professional pianist.
  4. How egregious was the conduct of the at-fault party? Did the at-fault party drive drunk, speed through the suburbs on Halloween night, text and drive, or flee from the scene? Will the jury like him or hate him?
  5. What do the doctor’s reports say?
  6. What are the liability insurance policy limits?
  7. What is the history of jury verdicts in the area? Is it reasonable to expect the likely jury pool to award a significant verdict for the plaintiff?

Whether you are inclined toward out-of-court settlement or want to demand a jury trial, an experienced attorney can help you understand your rights your options, and the various ways you might be able to maximize your recovery. The personal injury attorneys at Howard, Lewis, & Petersen have represented hundreds of clients in personal injury cases, and would be honored to help you, too. Contact us today for a free consultation.

Jacob S. Gunter is an attorney who regularly handles personal injury settlements and trials at Howard Lewis & Petersen, PC. He can be reached at (801) 373-6345.

Posted November 18th, 2015