When evaluating whether or not personal injury litigation should proceed, the three general areas which must be evaluated are:
- the nature and extent of the plaintiff's injury,
- the strength of the plaintiff's case, and
- the collectability of the defendant.
The stronger the claim is under those factors, the greater the chance of finding a lawyer to handle the claim on a contingency fee basis, and the greater the chance of recovering compensation.
When a plaintiff presents substantial injuries, a strong claim, and a highly collectable defendant, it is highly likely that a lawyer will agree to take the plaintiff's case on a contingency fee basis, usually meaning that the attorney will advance the costs for the litigation and will collect an attorney fee only if the lawsuit is successful. If one or more of these elements is weak, or is absent from a case, it becomes more likely that an attorney will decline the case, or will agree to pursue the case only if the plaintiff pays an attorney fee (often hourly in nature).
The nature and extent of a plaintiff's injuries often play a significant role in personal injury litigation.
- People with mild to moderate injuries often simply choose not to litigate, whatever the merits of their case.
- When weighing the cost of litigation against the size of a potential recovery, many plaintiffs realize that between the costs and burdens of litigating a case and the size of any verdict or settlement they are likely to recover, it doesn't make sense to pursue a lawsuit.
When injuries are minor, it often makes sense for an injured person to try to negotiate a settlement directly with the at-fault person's insurance company, or to consider a small claims court case.
There are many cases in which people are seriously injured, but there is not a viable personal injury claim which can be pursued. For example,
- Sometimes people are responsible for their own injuries, and there is no defendant to be sued.
- Sometimes a defendant will possess an extremely powerful defense to the plaintiff's claim, such as absolute immunity, qualified immunity, or governmental immunity, which will make it impossible (or near-impossible) to prevail in court.
When a claim is weak, defenses are strong, or both, it may not be worth trying to take the case to court.
The third factor in evaluating a personal injury case is whether the defendant will be collectable. That is, will the defendant be able to pay for the damage he or she caused to the plaintiff. The plaintiff may have suffered serious injury, and the plaintiff may have a very strong case against the defendant, but if the defendant has no money, resources, or insurance with which to pay a verdict or settlement, there is little to no chance of collecting any money at the conclusion of the litigation.
Some people may choose to sue an uncollectable defendant on principle, even though they may lose money in the process. Sometimes it may make sense to seek a large verdict against a defendant on the off-chance that the defendant may later obtain money or other resources that can be used to satisfy the judgment. For example, a defendant may eventually get a high-paying job, inherit money from a relative, or even win the lottery. If you don't seek a judgment and the statute of limitations expires, you cannot pursue assets that the defendant later acquires.