Once a settlement offer has been made, it is your lawyer’s job to advise you as to whether the offer is reasonable given the risks of a trial. But it is the personal representative’s job – not the lawyer’s – to make the final decision as to whether to accept a settlement offer. A judge will generally have to approve the settlement before it is final, but judges usually accept a personal representative’s decision.
Finally, if settlement negotiations fail, a case will go to trial. Surprisingly, no one keeps reliable statistics on how many cases go to trial, but it’s probably around 5%. If the case does go to trial, you would be expected to sit at the trial table next to your lawyer for the whole trial, which could take several days to a week or two, or even more. Cases generally only go to trial if you don’t accept a settlement offer, so you will usually have a lot of input into whether a case goes to trial.
It does sometimes happen though that the other side won’t make any offer, or will make an offer so low that you don’t really have much of a choice. Because this is the case, a good lawyer will go through the whole process assuming that there will be a trial because he/she has to be ready if a trial does become necessary. This is the only way to show the other side that you are serious. Being fully prepared to go to trial is the best way to get a good settlement and thus avoid a trial.
We hope this chapter has given you a good idea of what the wrongful death process can be like so that if you decide to become your family’s personal representative, you will have a better understanding of the commitment you are making.