While there are many advantages to settling out of court, this isn’t always possible to do. Your adjuster may not be willing to negotiate a fair settlement amount if he feels there’s a chance you’ll be awarded less money than this in court.

Some lawyers settle all their cases out of court. Others prefer to take cases to trial. Generally, cases that involve future economic losses end up in court as do most brain injury cases; cases that involve psychological issues, PTSD, or chronic pain; and cases where a claimant’s disabilities might not be caused by the accident. Claims involving mild traumatic brain injuries with on-going consequences rarely settle out of court. ICBC frequently requests a jury in these cases.

If ICBC has been taking a tough stance with your case, and they haven’t acted in good faith in negotiating with you, you may have little choice other than to go to trial. You need to be realistic about what your case is worth, though. What issues are in dispute, and how much money is at stake? Is your adjuster being stubborn, or are you exaggerating your problems? Is a judge or jury likely to find you a credible witness? How strong is your case – and what are the weaknesses in it?

ICBC may take a case to trial that they know they won’t win. Tens of thousands of dollars may be spent fighting a claim that could have settled for half this amount. ICBC vigorously fights so many claims because enough claimants back down and accept small settlements to avoid an ugly court battle. ICBC wins enough of the cases they challenge to make up for those they lose.

Whether you should go to trial or settle out of court depends on the nature of your situation and how ICBC is handling your claim. In pre-trial settlement discussions, your lawyer and the ICBC defence lawyer will try to place a realistic value on your claim by comparing it with earlier settlements and court-ordered awards in similar cases. (Only court-ordered awards can be used as a comparison at trial.)

Many personal injury cases settle on the first morning of trial. If ICBC’s last-minute offer to you is fairly close to what you feel you’ll be awarded in court, you may want to accept it. No matter how strong your case is, the outcome of a trial is always uncertain, and all trials are stressful. ICBC has the right to appeal a Court Judgment, but an out-of-court settlement can’t be appealed.

A lawyer can advise you on whether it’s wise to settle, but the final decision is yours. You’ll want to take into account how much money you’ll end up with after paying legal fees and related expenses. If your lawyer recommends that you settle out of court, ask him if he’ll reduce his contingency percentage if you agree to do this.

Many lawyers charge a higher contingency fee percentage when a case goes to trial. This higher percentage may apply to a case that settles within 30 - 60 days of the trial date. By this time, a lawyer has usually done most of his trial preparation, and he expects to be paid accordingly.

You should know a few days before the trial date what judge will hear your case. Some BC judges are more generous in awarding damages then others. If a tough judge is assigned to your case, your lawyer may advise you to settle out of court. If you’re assigned a judge who tends to support the claims of people injured in auto accidents, ICBC may be eager to avoid a trial and offer you a higher settlement than previously discussed.