Why Some Cases Settle And Others Go To Trial

My philosophy and goals as a practicing attorney can be distilled into two key elements: first, give the best service possible to clients, including returning their calls and responding to their concerns; second, get the best result possible for clients.

I've already written a fair amount about the first of these philosophies, but the second is important, too. Obviously, if your opponent in a lawsuit never makes a fair offer or demand to settle the case, a trial is all but certain.

However, there are certain risks that must be accounted for in deciding whether to accept a settlement vs. going to trial. Let's assume we have a case we believe can be valued at $500,000 in "verdict value," i.e. the most likely and best amount a jury would award if all goes according to plan at trial. Why would someone settle for less than that amount, i.e., what determines "settlement value?" A few factors:

Likelihood of success: if a case is worth $500,000 if everything goes perfectly, but there are facts in your case that could work against you or a witness who isn't completely reliable, the value of the case should be lowered accordingly. For example, if your lawyer believes you have a 70% chance of getting the $500,000 verdict while the other side has a 30% chance of winning outright or at least lowering your verdict value due to a factor such as comparative fault (meaning each party bears some percentage responsibility for an incident), the settlement value your case is 70% of $500,000, or $350,000. Realistically, you should then at least consider that or any better offer to settle the case.

Statutory demands and expert/trial costs for both parties: in California state courts, the parties can serve offers or demands under the Code of Civil Procedure that, if not accepted, have the legal effect of entitling the party who does not "beat" the other party's offer or demand to expert costs and prejudgment interest. For example, let's say a Plaintiff believes she can get a $500,000 verdict at trial but knows she will spend $20,000 in expert fees and costs to go to trial. The Plaintiff serves the other party with such a statutory demand for $499,000 and then wins a $500,000 verdict. The Plaintiff can then request prejudgment interest at 10% annually from the date she served the demand, and can recover the $20,000 in expert fees and trial costs she spent to get a better verdict than her $499,000 demand.

The flip side of this, however, is when a Defendant makes an offer a Plaintiff fails to "beat" at trial. Let's say a Plaintiff believes she can win $500,000 verdict in a perfect scenario, but again that she will lose 30% of the time or have her verdict reduced by 30% due to a factor such as comparative fault. If a Defendant serves a statutory offer of $351,000 and the Plaintiff only gets a verdict of $350,000, that Plaintiff must pay for the Defendant's expert fees and trial costs. The same would hold true if the Plaintiff won zero dollars, meaning care must be taken in evaluating any such offer or demand.

The lesson here is twofold: first, these statutory offers and demands are available to force parties to be realistic and reasonable when evaluating the value of each case; second, a party who evaluates such an offer or demand unrealistically runs the risk of costing him- or herself a lot of money.

The litigants' willingness to go the distance: Be it testifying in front of a jury, taking time off work, or any other among a host of reasons, some litigants simply don't have the time, interest, or stomach for trial of their case. In such cases, lawyers are typically instructed to settle the case short of full verdict value. It's important for lawyers and their clients to candidly discuss everything involved in a trial: it can be stressful, expensive, and time consuming (as well as financially risky as described above), to name but a few negatives.

Overall, the decision whether to take a case to trial hinges on these major factors. Each case is different, and each case I've been involved in that has gone to trial vs. settled has usually involved one or more of them.


Chris Gansen is an attorney practicing personal injury and trial law in Los Angeles, CA. He specializes in catastrophic injury cases and products liability. You can find him on Twitter @thegansen or on his law firm's web site, www.gansenlawgroup.com and LaAutoLaw.com.

DMAA Is Illegal And Dangerous, FDA Says

The Food and Drug Administration is warning to consumers not to buy dietary supplements containing the ingredient dimethylamylamine, or DMAA.

The strongly worded warning from the agency, which calls the DMAA illegal, is the first to explicitly caution consumers about the ingredient, experts say.

DMAA, most commonly found in supplements promoted for helping muscle-building and weight loss, can increase blood pressure, and may cause shortness of breath, irregular heartbeat and heart attacks, the FDA says.

The warning comes after the FDA sent letters to 11 companies last year, asking them to stop making and selling products containing DMAA. Since then, all but one of the companies has complied, the FDA said.

The FDA has received 60 reports of illnesses and deaths linked to supplements containing DMAA, although these reports cannot prove that the supplements were the cause of the health problems, the agency said.

Unlike medical drugs and devices, dietary supplements do not require FDA approval before they are sold to consumers. (Companies that sell supplements to not need to provide proof of their safety and efficacy.) The FDA regulates supplements only after they enter the market, and must undertake lengthy steps to remove a product it deems unsafe, the FDA said.

If you've been affected by DMAA, contact Gansen Law Group for a free consultation. 

Chris Gansen is an attorney practicing personal injury and trial law in Los Angeles, CA. He specializes in catastrophic injury cases and products liability. You can find him on Twitter @thegansen or on his law firm's web site, www.gansenlawgroup.com and LaAutoLaw.com.

Johnson & Johnson Subsidiary Hit For $8.3 Million In Defective Hip Suit

On March 8, 2013, a Los Angeles Superior Court jury awarded a retired corrections office $8.3 million in damages stemming from a defective hip replacement device.

The verdict was in the bellwether case Loren “Bill” Kransky v. DePuy, LASC Case Number BC456086. Johnson & Johnson's DePuy unit defectively designed a metal-on-metal hip implant and was negligent, a California jury decided in the first of 10,750 lawsuits over the device to go to trial. The Los Angeles jury awarded $8.3 million in compensatory damages to Loren “Bill” Kransky, a retired prison guard from Montana, after finding that the design of the ASR XL hip caused his injuries. Jurors also found DePuy properly warned of the risks and didn’t owe punitive damages to punish the company.

J&J, the world’s largest seller of health-care products, recalled 93,000 of the implants in August 2010, when it said 12 percent failed within five years. Last year, 44 percent failed in Australia within seven years. Analysts say the lawsuits could cost J&J billions of dollars to resolve. Patients such as Kransky, 65, complain in lawsuits of dislocations, pain and follow-up surgeries known as revisions. Kransky’s lawyers argued that DePuy failed to test the device adequately before selling it in the U.S. in 2005, buried surgeon complaints of mounting failures, and studied a redesign of the ASR before scrapping that effort in 2008.

The next bellwether trial begins in Illinois State Court on March 11, 2013. The Kransky verdict is likely the first of many large verdicts to be handed down against DePuy.

If you’ve had problems with your hip replacement, contact the Gansen Law Group today for a free evaluation.


Chris Gansen is an attorney practicing personal injury and trial law in Los Angeles, CA. He specializes in catastrophic injury cases and products liability. You can find him on Twitter @thegansen or on his law firm's web site, www.gansenlawgroup.com and LaAutoLaw.com.

Insurance Companies: Not Your Friend In An Injury Case

We were recently retained by a client who survived an incredibly tragic and violent auto accident, after which she was hospitalized with broken bones and numerous other injuries. In addition to her physical pain, she now also suffers psychological after-effects from the accident, including anxiety, PTSD, and difficulty sleeping among others. Her medical bills total about half of the driver's relatively high policy limit, which means her recovery for pain and suffering likely won't be nearly enough considering what she's been through and will continue to go through.

Insurance companies aren't interested
in paying you fairly or quickly after an injury.

For reasons I'll explain, the other driver's insurance company has still not paid the policy limit even though it is now nearly five months after the accident. Despite knowing the facts of her injuries and having access to the bills, the company delayed, saying they needed to get their own copies of the medical records. That has taken an untold amount of time while our client's bills have piled up and, in some cases, went to collection. I believe this is nothing more than a delay tactic designed to pay her as little as possible while earning as much interest on the policy proceeds as possible. This is not uncommon.

Fed up with arguing with this insurance company, stressed beyond the breaking point, and still suffering from the accident, our client retained us to take on the insurer for her. While we've only just gotten involved, I have little doubt we will be able to 1) get her the full policy limits relatively quickly; and 2) negotiate her medical bills down dramatically so as to ensure her total recovery is at least equal to and likely better than what she'd have gotten if she hadn't hired us.

If you find yourself arguing with another driver's insurer about who is at fault or the cost of your medical treatment, or if you're tired of delay and stonewalling while your bills pile up, consider hiring a qualified attorney to handle your personal injury case to improve your recovery and save time.



Chris Gansen is an attorney practicing personal injury and trial law in Los Angeles, CA. He specializes in catastrophic injury cases and products liability. You can find him on Twitter @thegansen or on his law firm's web site, www.gansenlawgroup.com and LaAutoLaw.com.