By Kris Bonn
Law360 Canada (February 27, 2025, 11:26 AM EST) — Personal injury claims arise when an individual suffers harm due to another party’s negligence, recklessness or intentional misconduct. These claims often involve physical, emotional and financial distress for the injured party. Whether the injury results from a car accident, slip and fall, medical malpractice or other negligent/wrongful conduct, the injured party typically seeks compensation for their losses, which can include pain and suffering, loss of income, future care and out of pocket expenses. A critical decision that arises in the aftermath of a personal injury is whether to settle the case or pursue the matter to a contested trial.
1. Strength of evidence
One of the primary considerations in deciding whether to settle or go to trial is the strength of the evidence supporting the plaintiff’s claim. A case with clear liability, strong medical evidence, supportive witnesses and well-documented damages is more likely to lead to a favourable outcome, either in settlement or at trial. Conversely, weak or inconclusive evidence are riskier for plaintiffs and may cause the plaintiff to consider settlement to avoid the uncertainties of a trial.
The credibility and reliability of the evidence plays a crucial role in assessing whether to settle a case or take the case to trial. Well-documented medical records, qualified experts, supportive lay witnesses and accident reports can enhance the case’s strength and lead to the recommendation that the case should go to trial if the defence does not make a reasonable offer to settle. On the other hand, weak or conflicting evidence, lack of supportive witnesses and less-qualified experts may prompt the recommendation to settle to avoid the risk of a bad outcome at trial.
The burden of proof lies with the plaintiff, who must prove on a balance of probabilities that the defendant was negligent, and their negligence caused the plaintiff’s injuries, losses and damages. A lawyer advising their client must carefully evaluate the availability of credible witnesses, medical records and expert testimony to properly advise their client on whether to settle or take the case to trial.
2. Potential damages
Lawyers must evaluate the severity and long-term impact of the plaintiff’s injuries on whether to recommend that a client settle a case or take the case to trial. Personal injury damages can include compensation for pain and suffering, medical expenses, loss of income, loss of capacity to perform housekeeping/handyman activities and future care costs. The quantum of damages is often a point of contention between the parties. If the plaintiff’s injuries are severe and the potential damages are substantial, the defendant may be more inclined to settle to avoid the risk of a large verdict at trial. Conversely, the best advice to the client is to try and settle and avoid the risks associated with a trial.
3. Costs and time
The costs and time involved in pursuing a trial are significant factors to consider. Trials can be lengthy and expensive, requiring substantial financial resources and time commitments from both parties. Legal fees, expert witness fees, and court costs can quickly accumulate, making settlement an attractive option.
Additionally, the time it takes to reach a trial verdict can be considerable, often spanning several years. For plaintiffs seeking timely compensation to replace lost income, cover medical bills and other expenses, settlement may be preferable to waiting years to get to trial.
4. Risk and uncertainty
The inherent risk and uncertainty of trial outcomes are critical considerations. Trials are unpredictable, and even strong cases can result in unfavourable verdicts due to various factors, such as jury biases or unpredictable witness evidence. Settlement offers a degree of certainty, allowing both parties to control the outcome and avoid the gamble of a trial.
5. Precedent and publicity
For some cases, the potential for setting a legal precedent and the impact of publicity are additional factors to weigh. High-profile cases or those involving novel legal issues may attract media attention and public scrutiny. For some plaintiffs, the desire to set a precedent or bring attention to a particular issue may motivate them to pursue a trial. Conversely, defendants may seek to avoid negative publicity and the risk of establishing an unfavourable precedent by opting for settlement.
6. Emotional and psychological impact
The emotional and psychological toll of a trial can be significant for plaintiffs. Reliving the traumatic events of the injury, enduring cross-examination and facing the uncertainty of the outcome can be stressful and emotionally draining. Settlement offers a way to avoid the adversarial nature of a trial and achieve closure more quickly. Lawyers must consider their client’s emotional resilience and ability to cope with the demands of a trial when providing advice on the decision to settle or go to trial.
7. Client’s decision
Ultimately, the decision to settle or go to trial is for the client. Experienced lawyers can provide valuable insights into the strengths and weaknesses of the case, the likelihood of success at trial, and the potential benefits and drawbacks of settlement, however, the final decision on whether to settle or continue the case to trial is the client’s decision.
Conclusion
Deciding whether to settle a personal injury civil action or take the case to trial is a complex and multifaceted decision. Plaintiffs must carefully consider the strength of their evidence, potential damages, costs and time, risk and uncertainty, precedent and publicity, emotional impact, and legal advice. By weighing these factors, with the assistance and advice of experienced legal counsel, plaintiffs can make an informed choice that aligns with their best interests and maximizes their chances of achieving a favourable outcome.
Kris Bonn is the managing partner at Bonn Law, a firm with offices in Belleville and Trenton that focuses on helping people with personal injury cases, medical malpractice and long-term disability denials. Bonn is the president of the Brain Injury Association Quinte District and the past president of the Ontario Trial Lawyers Association.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article isfor general information purposes and is not intended to be and should not be taken as legal advice.
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