- Building collections into a settlement. As mentioned above, in some ways plaintiffs can protect themselves by reaching a settlement agreement with a defendant who may not be able or willing to pay on a judgment. Plaintiffs need not accept a settlement that doesn’t make adequate provision for the financial side of the deal. Settlements can provide for structured payment plans that can provide defendants with a practical way to pay down their liability, which can be especially attractive for defendants who must pay out of their personal assets (as opposed to an insurer).
- Go after the defendant’s property with a writ of execution. The owner of a judgment can ask the court to issue what is called a writ of execution, which authorizes the plaintiff to take possession of certain specified property owned by the defendant, such as cash or investments. To enforce a writ of execution the plaintiff may need to hire a professional collection agent, who specializes in tracking down property that the defendant may not be willing to part with.
- Garnish the defendant’s wages. If the defendant has a job the plaintiff can ask the court to order the defendant’s employer to withhold a portion of the defendant’s wages, up to a statutory maximum.
- Place liens on the defendant’s property. Although a plaintiff may not be able to force a defendant to sell a primary residence to pay the value of a judgment, the plaintiff may be able to place a lien on the property so the defendant can’t sell without satisfying the judgment debt. Liens like this are typically junior to liens held by mortgage lenders, which means their primary purpose is to tie down the defendant’s assets while the debt is outstanding.
Getting a favorable court judgment in a personal injury lawsuit, whether as a result of a full trial or through a settlement agreement, often is not the last challenge for injured plaintiffs. Collecting on the judgment can, in some circumstances, be a challenge as well. Some defendants aren’t able to pay the amount they owe, while others are willing to risk being held in contempt by withholding payment out of spite. In a negotiated settlement agreement, plaintiffs can require defendants to deposit funds into an escrow account as part of the settlement, but absent such an arrangement plaintiffs sometimes need to take extra steps to recover what they are owed. If a defendant doesn’t pay within a reasonable time it can put the plaintiff in an increasingly difficult financial position. The reason the plaintiff has brought suit in the first place is to recover compensation for the costs associated with the plaintiff’s injury. Many people who suffer injuries take on debts for their immediate medical needs. They also often have to take time off work, which can force them to miss payments on credit card bills, mortgages or rent, phone bills, and so on. Late fees and the threat of worse—damaged credit ratings, foreclosures—will continue to mount until the defendant makes the plaintiff whole. Unfortunately, this is a common problem. Personal injury lawyers help their clients pursue a range of avenues for collecting from unwilling defendants. There are a few mechanisms available: