Maybe you were involved in a terrible car crash.

Maybe a doctor was careless and caused you permanent injury.

No matter how you were injured, your damages are life-long.

You believe that the person who caused you harm was careless.

Maybe it was a careless driver who violated the rules of the road.

Maybe it was a negligent doctor who violated the basic standards of good medical care.

In either event, you believe the only way you can obtain sufficient compensation is to bring a lawsuit against the person or company who caused you harm.

You find the best attorney for you.

It’s a difficult task, but after weeks of researching who is the best attorney for YOU, your lawyer tells you that you have a valid case.

Your lawyer tells you that a medical expert confirms there was wrongdoing.

He tells you that his expert confirmed the wrongdoing caused your injury and he also tells you something you already know...

Your injuries are permanent.

You start your lawsuit.

Your attorney tells you in exquisite detail that you will experience an emotional roller coaster as you go forward with your case.

You don’t care.

You want justice.

You need to be fully compensated.

You’re angry that your life was turned upside down.

All because someone was careless at that moment in time.

You want him to pay.

You want him to lose his license.

You want to make sure this never happens again.

You also begin to fantasize about how much money you’re going to receive.

You begin to daydream about what to do with that money.

You begin to assume that winning your case is a foregone conclusion.

Such thoughts are premature.

Such thoughts are fraught with wrong assumptions.

Such thoughts don’t take into account that you can lose your case even if you believe and your expert believes you have a valid case.

You learn during your lawsuit that the defense attorney is trying to get your case dismissed.

You are pissed.

You are furious.

They’re trying to get off on a legal technicality.

After successful legal maneuvering, your lawyer prevails and your case continues.

But you were unsure how it would turn out.

It was stressful.

It was agonizing.

Especially since you can’t work.

Especially since you can’t do your life’s daily activities the way you used to.

Your attorney tells you that you need to show up for pretrial questioning.

You’re told it’s called a deposition.

Your pretrial testimony carries the same weight as if you are testifying at trial.

You’re wondering when the defense will wake up and realize they can’t defend this case.

You think it was going to happen immediately after you started your lawsuit.


You think it was going to happen at the first court conference.


You think it will happen before or during your pretrial testimony.


You are questioned by two different defense lawyer for eight hours.

It’s torture.

It’s painful.

It’s redundant.

It’s annoying.

It’s arguing over the smallest things.

You are trying your best to be calm and polite but it’s very challenging.

You wind up in a few arguments with the attorney who is asking you questions.

You don’t understand why the attorney needs answers to questions having nothing to do with your lawsuit or your damages.

Your attorney tells you that you MUST answer the question.

You give up and answer the question.

You are frustrated.

You are exhausted.

You are wiped.

It’s a very long day.

At the end of the day, you’re pleased it’s over.

It’s a relief.

You don’t have to return for any more questions.

Thank God.

That was torture.

You hope your lawyer is just as obnoxious as these two bozos who kept asking you questions all day.

You think you’ve shown the defense lawyers that your injuries are substantial.

They’re permanent.

You’ve told them you can’t do most of the activities you used to do.

You’re convinced they will want to settle your case soon.


You’re convinced they’ll cry uncle and throw their hands up and roll over soon.


You’re convinced the defense will realize their clients cannot defend this clear-cut liability case.


Once again, you’re frustrated.

Once again, you’re upset.

Once again, you reflect on the comment your attorney told you the day you agreed to start this case that you’d be on an emotional roller coaster.

You ask your lawyer if your case will settle.

He answers you in a typical lawyerly way...


A lot of good that answer is.

It would have been better had you not even asked the question to begin with.

You push on and ask another important question...

“How much do you think my case is worth?”

Your attorney gives you an answer that takes fifteen minutes to explain.

At the end of his long-winded explanation, you still don’t have a definite answer.

You come to the conclusion that he simply doesn’t know...yet.

Nor does he know whether the defense has evaluated your case.

They haven’t conferenced the case with their people yet.

The judge hasn’t called the attorneys in for a settlement conference either.

You’re frustrated.

You’re hamstrung.

You’ve been waiting almost two years now.

Two years for your case to settle.

Two years to resolve your case.

Two years for something tangible to happen.




You’re angry again.

You hate this waiting game.

You hate the delaying tactics.

You hate the legal maneuvering.

You hate the semantics.

Damn, when will this be over?

When will they realize they can’t win at trial?

When, when, when?

Months later your lawyer tells you he questioned the people who caused your injuries.

He told you they have many defenses.

He told you they claim they did nothing wrong.

He says they’re claiming you’re also responsible for your own injuries.

He says they think your injuries are not as bad as you claim them to be.

He says he spoke to their lawyers after he was done questioning the people you sued.

He says they don’t think this is a clear-cut liability case.

There’s no smoking gun.

There’s no videotape.

There are no eyewitnesses to support your claim.

You’re getting angrier by the second as you listen to this drivel.

You have steam coming out of your ears as you listen to this bull.

It’s incomprehensible that the defense is playing this game.

You tell your attorney you want to go for the jugular.

You tell your lawyer you want to go to trial.

To the bitter end.

You tell your lawyer that you know for certain that a jury will find in your favor and they will give you millions...they have to.

Because you know, in your heart of hearts that you did nothing wrong.

You didn’t cause or contribute to your accident.

You didn’t contribute to causing your injuries.

You want to make the defense eat their words.

You want to make the defense realize they were wrong.

You want a jury to vindicate you and tell the defense they were wrong.

You’re now on a mission.

You don’t want to settle now.

You don’t care what they offer you or even if they make an offer at this point.

Your attorney digests this rant.

He listens calmly to you.

He nods his head in agreement.

But he doesn’t try to change your mind...yet.

He doesn’t try to cheer you up.

He doesn’t try to sugarcoat it either.

Your lawyer tells you, two months later, that your case is ready for trial.

He put your case on the trial calendar.

You immediately think your trial will start in a few weeks.


Your lawyer tells you that your case will sit on the trial calendar for nine months to a year. Sometimes longer.

He has no control over when it will come up and promises to tell you when that happens. He expects that there will be a settlement conference about a month before your case will come up for trial.

Basically, he tells you to hurry up and wait.

Nothing will happen during this waiting game.

Absolutely nothing, from your standpoint.

However, behind the scenes, there’s often a lot that happens.

Your attorney must gather all of the pretrial testimony and forward it to your medical expert to review.

He must send him any updated medical records and any other relevant records to review that he did not have when he first reviewed your case.

He must discuss your expert’s updated opinion in detail.

He them must disclose this expert witness information with the defense lawyers.

All this happens without any involvement from you.

Your attorney may also reach out to the insurance company to see if he can short-circuit the litigation and get settlement discussions going.

Before having to wait a year.

Before having to wait for the court to schedule a settlement conference.

Sometimes the defense is receptive.

Many times they’re not.

Sometimes the defense is willing to talk.

Sometimes the defense says they need more time to evaluate your case.

Sometimes the defense may offer an alternative to direct settlement negotiations.

That alternative might be mediation.

That’s a private settlement negotiation with an impartial judge.

Sometimes your attorney will agree to mediate.

Sometimes he won’t.

You’re back on the emotional lawsuit roller coaster.

It’s up and down.

Some days you’re depressed.

Some days you’re not.

One day, out of the blue, your lawyer calls you.

On this day, you are at an all time low.

You’re depressed. 

You’re worried.

About your life.

About your family.

About your finances.

Your lawyer tells you the defense made you a settlement offer.

You begin to see a light at the end of the tunnel.

Your emotions begin to rise.

You think it’s almost over.

Until you hear the offer.

Then you sink.



You get angry again.

Their offer is crap.

Your attorney confirms the offer is insulting.

But he tells you there’s hope.

He tells you that means they might be willing to talk significant numbers...just not yet.


You’ve been waiting more than two years!

How much longer do they want to wait?

Two weeks go by.

Your lawyer calls you again.

You learn negotiations have been going on behind the scenes.

Multiple back and forth offers and revised demands.

Your lawyer still tells you the defense hasn’t come up to a reasonable offer.

You agree.

More anger.

More frustration.

More waiting.

You’ve got a few more months before trial, at least that’s what you think.

Two weeks later, your lawyer calls again.

This time, he tells you about their offer.

It’s a significant offer.

You agree, it’s significant.

Your attorney recommends taking the offer.

He recommends settling your case.

Now. Not later.

You’re on the fence.

You trust your lawyer.

You trust his judgment.

But you want to go to the bitter end.

On the other hand, the offer is really good.

It's guaranteed money.

If you agree to settle, the defense must pay you within three weeks of getting all the appropriate settlement documents.

If you reject their offer, they may withdraw their offer.

If you reject their offer, they may reduce it.

You think that as you get closer and closer to trial, the defense will INCREASE their offer.

They might.

Then again, they might not.

Your attorney may have gotten hints during settlement negotiations from the defense lawyers about whether this might happen.

"Do you have any more room to negotiate?" your attorney asks after the defense's last offer.

The answer may help you decide whether to accept their offer.

You think back to when the defense said you caused your own injuries.

That got you angry again.

That got you seeing red again.

You're tempted to reject their offer to teach them a lesson.

Let the jury see how badly injured you are.

Let the jury give you millions of dollars and make the defense cry.

You're tempted.

You're confused.

If you accept the defense's settlement offer, your case is over.

If you accept the defense's offer, you don't have to go to trial and testify.

You won't have to sit through days and possibly weeks of going to court and listening to testimony from witnesses.

Nor will you have to endure a withering cross-examination that will shed light on your credibility.

In light of your anger,

In light of your frustrations,

In light of your anticipation of going to trial,


  1. Does your attorney think it's a good offer?
  2. What is the likelihood you'll get a bigger offer once you are at trial?
  3. What are the risks of rejecting the offer?

Let's look at each one individually.


Believe it or not, your lawyer has (likely) done this dance before. He has (likely) had many settlement negotiations involving accident matters or medical malpractice cases or wrongful death matters. Importantly, your attorney will have done his own research to identify the likely range of what your case is worth.

This is critically important.

It's important for your lawyer to know what other similar cases have settled for.

It's important for your lawyer to know what juries in similar cases have done and what type of verdicts have taken place in cases with similar injuries and similar venues.

Remember, that your lawyer has a vested interest in getting you the best and most amount of money to compensate you for your injuries. That's because his fee is based on how much money he can get for you.

The more he gets for you, the bigger his fee. That's known as a contingency fee. His fee depends on what he can obtain for you.


The answer is maybe.

But that tactic is very risky.

The defense may have drawn a line in the sand and said that they will not offer another dime.

If you ignore that comment and go to trial expecting they will raise their offer during trial, you might be in for a rude awakening.

That's because they may see you as greedy.

They may think your stubborness will show during your testimony.

They may think the jury won't really like you because of how bitter you are.

When you go to trial, they may actually feel as if they are winning.

If that happens, they may feel no pressure to settle your case.

If they do find the case is going against them, they may want to settle before the jury gets the case  to decide.


The jury could throw you out of court without a dime.

Yes, I know it's hard to fathom, but it could happen.

You could lose at trial.

Even with a clear-cut case.

You never really know what a jury will do.

Even the best trial lawyers with fantastic cases have lost during their legal career.

In that event, you get nothing. Nada. Zip. Zilch.

Your attorney gets nothing. Nada. Zip. Zilch.

All those years waiting...

All that time spent litigating...

All that money spent prosecuting your case...

All for nothing.

On the other hand,

A jury may decide to give you a lot of money.

More money than you were asking for in your settlement.

More money than you asked for during trial.

That would make you happy.

Very happy.

Until you realize that you just bought yourself an appeal.

A guaranteed appeal by the defense.

That means that your case won't be resolved for another year or two.

That means a lot of uncertainty about if and how much you're going to ultimately receive.

During an appeal, the higher court could agree with the jury and leave the verdict as is.

They could disagree and feel your case should be thrown out and you are not entitled to receive anything.

They could decide that legal mistakes were made during trial and the only way to fix them now is to have a brand new trial.

They could decide that your case is not worth what the jury decided and instead, they reduce the verdict dramatically.

In some rare cases, they could decide that your injuries are worth much more than what the jury decided and give you substantially more.


The only way you can make an educated decision about whether to accept or reject the defense's settlement offer is to take all this into account, listen to your attorney's advice and then come to a rational, educated decision about what is right for you and your family.

Do not let your emotions make the decision for you.

Do not think you'll roll the dice and get a better result behind door #2 without knowing what the real risks & benefits are to each option you are considering.

Remember, this is your one and only time to obtain full compensation for your injuries.

You hired your lawyer to guide you through the legal minefield and to advise you. Listen to his advice and then make up your own mind.

To learn even more about the settlement and negotiation process, I invite you to watch the quick video below...





Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer