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Trial vs Settlement: Who Really Wins?

Jeffrey R. Davis

(Note: This article is intended to address the issue of trial vs. settlement of a civil, personal injury action. It is not designed to discuss a criminal case, family law case, commercial matter or any other type of action)

We’ve all seen those TV series where a lawyer is in trial on his client’s behalf arguing before a jury. We see the way they fight for their clients and how, in most cases, they win. Unfortunately, it is not always so quick and straightforward in real life. In fact, more than 90% of pending civil injury lawsuits settle before trial.

A settlement is where a case gets resolved without needing a jury to decide who wins or loses. A settlement occurs between the parties and is usually based upon some type of compromise. A trial is open to the general public with a judge, attorneys, witnesses and a jury. A decision by a jury at the end of a trial and a settlement both serve to end the case – or do they? Which one is better? What are the differences? This article is designed to provide some information in order to help those with cases make a decision.

The Benefits of Settlements

Absent something truly unusually, a settlement results in a complete and final resolution and end to a case or controversy. A settlement can be agreed to before a lawsuit is even filed. Many settlements result from the presentation of a claim alone, without need for litigation. Most settlements are reduced to writing, have express terms and conditions and can be enforced by a court if either side fails to honor the terms of the agreement. Settlements can resolve only a part of a case or all aspects of a case. For instance, in an automobile accident claim, a settlement can be reached as to the value of the property damage claim or the automobile and leave open the personal injury claim. A settlement provides certainty both as to the amount of the settlement and the timeframe for payment.

Another benefit of an early settlement is a reduction of attorney’s fees and litigation expenses. Most personal injury lawyers in Florida work with a contingency fee arrangement. This means they take a percentage of the recovery if they are successful on behalf of their client. The Florida Bar has rules on how much an attorney can charge a client in injury and death cases. The fee percentage charged to a client is not only controlled by the amount of the settlement but also by when the case gets resolved. For instance, in cases that are settled before a lawsuit is filed (or before the filing of an answer or demand for arbitration), the fee is usually 33 ⅓% of the gross recovery. After a lawsuit has been filed and answered the fee goes to 40%. Lawsuits are extraordinarily expensive. Settlements that occur before lawsuits are filed can avoid the client having to repay litigation expenses, which can result in a significant savings. Settlements, unlike verdicts at trial, can be kept confidential. While confidentiality typically favors the defendant, certain plaintiffs can benefit from a settlement that is kept private. Privacy concerns are also a reason why many plaintiffs do not wish to litigate a case, especially where personal matters such as medical records can be accessed or made part of a public trial.

Settlements are predictable and guaranteed; there is no way to predict with accuracy what six members of a jury are going to decide in your case, should it go to trial. A settlement allows you, as a party to control and decide the outcome, not six strangers on a jury.

Settlements can be based on historical data from other cases similar to yours in order to get the sense of comparable value; in trial, juries are not provided with any previous decisions or settlements to compare to and must rely on the evidence of that particular case in order to reach a conclusion.

Finally, settlements help bring closure. Most people find litigation very stressful. There is a good deal of uncertainty in terms of how long a case will take and how it may turn out. There is also no guaranteed finality by a jury verdict since, an appeal may be taken. A settlement ends the matter once and for all.


The right to a trial by jury in a civil action is a unique and fundamental right in America. It is guaranteed by the Seventh Amendment of the United States Constitution. Trial by jury in a civil action is a fundamental right that is as important as any other right enumerated by the U.S. Constitution and Bill of Rights. A right to trial by jury in a civil action means that when an agreement cannot be reached over a dispute, a person has the right to present that dispute or controversy to six members of the community known as a jury in order to have them reach a decision. Jury trials are an essential mechanism to hold wrongdoers accountable. They are also a time-tested way of deciding the outcome of a case. Trials are expensive, time consuming and stressful. Some cases can literally take years before they are ready to be tried. Injury cases almost always require the use of expert witnesses that charge thousands of dollars for their time. Lawsuits that result in a trial before a jury typically require the involvement of witnesses, family members, doctors, healthcare personnel, first responders, police officers, economists, life care planners, and a whole host of other types of expert witnesses. Oftentimes trials of injury cases require extensive medical and financial records, exhibits (both demonstrative and evidentiary) and the use of audiovisual presentations. Trials have become so complex that in some instances, lawyers use jury consultants, real-time computer support, data research, including social media research companies and other types of litigation support services. The preparation needed to effectively put a case on trial is enormous. Lawyers skilled in trial practice understand the intense and focused attention that properly preparing a case for trial requires. Many cases cannot be resolved without trial. The parties just see things differently and cannot agree on the facts or value of a case. Under those circumstances, a trial is necessary. Sometimes, people want a trial to hold the other side accountable publicly. People call this “getting your day in court”. The ability to present a case to a jury in trial is vital in our democratic system of government. Trial is the ultimate equalizer since the individual stands on equal footing in an American civil jury trial with the mightiest corporations or companies. There is no limit on the power of a jury to right a wrong.

All in all, settlements and trials both have their negatives and positives. Each case is different and must be evaluated on its merits. There is no one size fits all in civil actions. Parties should get advice from a competent attorney that has experience with their type of case. If the case should be brought to trial, parties should have seasoned trial counsel that understands how to best present their case. There is no hard and fast answer to whether or not a settlement is better than going to trial; there are multiple variables that should be considered before making this important decision. Legal advice is essential. If you have an injury case that requires the specialized knowledge and attention of a Plaintiff’s personal injury lawyer, please consider contacting Jeffrey R. Davis, P.A. Jeffrey R. Davis, P.A. specializes in matters involving significant personal injury and wrongful death. Mr. Davis is a board certified civil trial lawyer with more than 30 years experience representing injury victims throughout the state of Florida. Our firm is bilingual and available on a 24/7 basis. Please contact Jeffrey R. Davis, P.A. today at (305) 577-3777 for a free consultation.

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