Short answer: yes, and usually long before anyone sees a courtroom. The decisions about witnesses, documents, experts, what a judge will let in, and what the defense will argue get made early. A lawyer who has tried cases tends to spot the proof a disputed element needs, and can tell you plainly what you're risking if you turn down an offer. That doesn't mean every injury case should be filed, let alone tried. And a defendant doesn't owe you a bigger settlement just because your lawyer has picked juries or holds a TBLS credential. What you really want to know is simpler. Does this lawyer's experience change how your case gets investigated, prepared, explained to you, and presented?
Settlement is the outcome, but preparation shapes the choice
A settlement can spare a client the time, expense and uncertainty of trial. The offer still needs to be evaluated against the evidence. Consider two hypothetical store-injury claims that settle for the same amount. In one, counsel has interviewed the cashier and obtained a medical explanation of the injury. In the other, counsel has accepted the store’s account of its inspection without checking it. The checks may be identical, but the information available to those clients is not. Ask what your lawyer has confirmed, what remains uncertain and how those uncertainties affect the recommendation.
A demand may come back with a defense you did not expect. Perhaps the insurer says phone use caused the fall, or points to an earlier injury. Perhaps a contractor, rather than the store, controlled the work area. Your lawyer should be thinking about those possibilities while the evidence is still available. Find out when the cameras overwrite, who the witnesses are and where the relevant records sit. Not every issue calls for an immediate deposition. But waiting until negotiations fail to locate a recording can mean there is nothing left to request.
Trial experience is one place that planning instinct comes from. A lawyer who has questioned witnesses and put contested evidence in front of a jury knows why an unsupported claim won't hold up on cross-examination. Still, a trial record isn't the only measure of a good fit. How recently has the lawyer handled your kind of case? Who's on the team? What resources do they have, and will they give you an honest read on the risk? Ask how the lawyer's experience changes the next step in your claim. Don't settle for a vague line about insurance companies “fearing” someone.
A case begins with elements that must be proved
Begin with what must be proved. After a collision, that may involve each driver’s actions, the cause of the injury and responsibility attributed to somebody else. In a premises case, notice of the condition may be the disputed issue. A product case will require a different analysis. One practical approach is to put the required elements on a page and write the supporting witness or record beside each one. An empty space is a question for the investigation. Review the possible defenses on the same basis before committing to a demand.
Take the clear liquid on aisle nine. Your client's phone photo proves it was there after she fell. That's about all it proves. Not when it got there. Not whether an employee walked past it twice. (We go deeper on this in how to prove a store knew or should have known about a spill.) A lawyer who's thinking about a courtroom asks for the video that day, pulls the sweep log, finds out which employees were on that aisle, and talks to the shopper who was behind her in line, before the memories go soft and the footage gets recycled. And that same lawyer has to be willing to hear the bad news, which is sometimes that the notice element just isn't there. Repeating that the floor was wet doesn't change that.
Medical proof needs its own review. The damaged car tells you little about the treatment its occupant will need. A doctor’s note mentioning possible surgery raises questions about the supporting findings, earlier symptoms and alternative causes. Work through those records with the appropriate medical witness. Then ask counsel to explain how the unresolved questions affect the settlement recommendation. The defense may dispute that connection in negotiations just as it would in court; leaving it for trial preparation leaves the client making today’s decision without needed information.
Witnesses are more than names on an incident report
Being listed as a witness does not tell you what the person observed. Someone may have watched the fall from several feet away; someone else may have heard it and then looked over. Interview each person about where they stood, what obstructed the view and whether they made a recording or statement. Ask employees about their own involvement on the shift. A manager familiar with the policy may not know whether the aisle was checked that afternoon. The employee who performed the check may be able to answer that narrower question.
Make sure you can reach the person again. The interview should separate direct observations from later conversations and identify any conflict with the incident report. Do that before the report’s account is repeated in a demand letter. Do not coach a witness out of uncertainty. If the person will not speak voluntarily, counsel can consider the discovery procedures the law permits. Accurate identifying and contact details may be necessary to take that next step.
Ask a witness who estimates ten minutes how they kept track. The answer might refer to a receipt or a clock, or it might simply be a recollection formed afterward. Compare available timestamps and earlier statements, and record the limits of the estimate. It may still have value, but it should not be presented as precise without support. Your lawyer should explain any resulting weakness when discussing settlement, not wait for the defense to point it out in mediation.
Early preservation can determine whether a trial remains possible
Evidence almost never sits in one tidy place. The store's camera system may have four angles on that aisle, plus metadata about when the clips got pulled and by whom. An eighteen-wheeler carries its own electronic data and a lot more besides (that's a whole subject on its own, covered in our Texas truck accident evidence and litigation hub). A warehouse might keep forklift maintenance in some vendor's cloud app the safety director forgot existed. Describe the location and time period in the preservation request, along with the systems and likely custodians. Ask what was searched when the answer is that the material is unavailable. There may be a device copy, a vendor copy or a backup that the first response did not address. Keep the questions and responses with the preservation record.
A screenshot can leave out information needed to explain a recording. Ask for the native file and the material needed to authenticate it. An inspection spreadsheet may also need its edit history: a printed entry does not necessarily show when it was entered or changed. With a failed component, arrange an appropriate written inspection protocol before testing alters it. The work should fit the disputed issue. Counsel does not need a forensic team for every file, but should know whether the summary supplied leaves out something material. Our guide to evidence to preserve after a store slip-and-fall walks through one example.
A letter cannot do everything a court order can do. It does not create an obligation to preserve every item indefinitely. The duty and the available remedy depend on the facts and governing law. Counsel should make a specific request promptly, retain the answers and determine whether a supported request for court relief is necessary. Loss of a recording may affect the proof, but it does not by itself establish the claim or an entitlement to sanctions.
Expert work begins with the question the expert must answer
An expert needs an assignment that answers a disputed question. For speed or sight lines, the task may go to a reconstruction specialist with access to the vehicle data. For expected treatment, it may require medical testimony. Work capacity and economic loss can require different expertise again. Discuss what each person is being asked to determine, which records they will receive and which assumptions need testing. Include the unfavorable material. Otherwise a file can accumulate expensive opinions while the central disagreement remains unanswered.
Look at the expert’s explanation, not only the CV. A doctor attributing neck symptoms to this collision needs to address relevant records of earlier symptoms. A projection of years of care needs medical support for that length of treatment; a short therapy prescription alone will not do it. Give the expert the contrary material and ask for the analysis. The explanation may strengthen the claim or expose a limit on it. Either way, it is information the client needs when deciding what figure to accept.
Discuss the proposed expense before commissioning the work. What question will a records review answer, and will testing, a report or testimony also be needed? The answer may depend on the liability dispute, available coverage, claimed loss and stage of the case. An unnecessary report can reduce the client’s recovery without improving the decision. Forgoing necessary expert work can leave an important issue unproved. Ask counsel to explain both risks and why the proposed assignment is proportionate to this particular claim.
Depositions test the story under oath
A deposition is sworn testimony recorded under the applicable procedural rules. Questions may concern the incident, treatment, work history and activities affected by the injury, subject to proper limits. Preparation should help a witness understand the process, review relevant records and answer accurately. Listen to the entire question. Ask for clarification when necessary. Do not guess, and correct an answer if you realize it was mistaken. Preparing a witness is not supplying a script. Counsel should also explain how a deposition answer can later be used to test the witness’s account.
Depositions of company witnesses can establish who made a decision and how the records were created or used. A corporate deposition requires attention to the designated topics, preparation duties, scope and objections. Counsel should know what a question is intended to establish, while remaining open to answers that change the theory. Sometimes a short answer resolves the point. Sometimes follow-up is needed to establish the witness’s knowledge or the document’s foundation. Length alone is not a measure of a useful deposition.
Following a deposition, the client should hear what the testimony did to the case. Perhaps it established one disputed fact but undermined another. Perhaps it left the issue unresolved. Your lawyer should identify those changes and explain any change in settlement advice. Neither a difficult answer nor a helpful one necessarily determines the result. You still need to know about testimony that hurt the claim before deciding whether to accept an offer.
Motions make evidentiary gaps consequential
Expect the defense to ask the judge to throw out part of your case. Maybe they argue you have no evidence on an element. Maybe they argue your expert's opinion doesn't meet the standard and should be excluded. The rules and deadlines for those motions are specific and they change, so they need current attention in every single case. The point for you is timing. See the motion coming early enough to collect admissible proof before the response is due, not after. A persuasive demand letter is not evidence, and the judge won't treat it as evidence.
Say it's a premises case. The whole thing may turn on actual or constructive notice, and “she fell and got hurt” doesn't prove notice. Say you're claiming future medical expenses. You need support for what care is coming and what it reasonably costs, not a guess. Say it's a trucking case. Then you may be sorting driver negligence from carrier negligence and dealing with how the evidence on each of those theories gets handled procedurally. Different cases, different traps. Same skill underneath, which is matching every legal issue to proof that will still be standing after the defense takes a swing at it.
A motion can affect part of a case without disposing of the entire lawsuit. It might exclude an opinion, remove a claim or limit a category of damages. Counsel should explain what remains, whether further action is available and how the ruling affects the settlement advice. In other circumstances, a ruling can be dispositive. Trial experience may help counsel assess those consequences, but the advice must follow the actual ruling rather than assume that every setback is minor or that every setback is fatal.
Jury questions and defenses should influence the investigation
The proposed charge can be used while investigating, rather than first examined as trial approaches. Beside each question about responsibility, causation or damages, note the evidence that could support the answer sought. Follow up if another company or driver may bear responsibility. Investigate disputed conduct by the injured person as well. Relevant records, photos and interviews may support either account. Once that work is done, counsel can explain which questions the evidence answers and which still need investigation.
Suppose the video starts thirty seconds before the fall. Without other evidence, it cannot show that the puddle had been there ten minutes. Or suppose the medical opinion identifies several possible causes. Those alternatives need an answer. Counsel may still conclude that the evidence as a whole supports the claim. Explain why, and identify what the sources do not establish. Leaving those limits out gives the client a poor basis for deciding whether to settle.
There is value in having explained technical evidence to jurors before. A lawyer may recognize where a record needs clarification or where a witness is making an unsupported assumption. That experience is no forecast of this jury’s verdict, however. People within a county differ, and past results do not eliminate uncertainty. Ask about the plan for presenting the evidence and preparing the witnesses. The settlement advice should still allow for the risk of a different response at trial.
The settlement decision should include the costs of proof
An offer isn't measured against the biggest verdict you can imagine. Measure it against what you'd actually keep, and what it costs to get there. The fee under your contract. Expenses already spent. Expenses still coming. The hospital lien, and the health plan that wants its money back. Time. The chance of an appeal, and the chance the defendant can't pay. Plus the plain fact that juries are unpredictable. A huge potential verdict is a bad reason to turn down an offer when you still can't prove the store knew about the spill. Flip side: an early offer can shortchange a real future loss just because the records don't document it yet. Your lawyer should be able to point at the specific missing piece that would change the math, and tell you what it costs to get it. The Texas injury claim value and litigation hub explains how these pieces fit together.
Being prepared for trial gives you choices. When the witnesses are lined up and the experts have done their work, you can decide whether to push forward from a position of knowledge instead of hope. You don't have to pick trial. If you've got bills stacking up, a job you need to get back to, or you simply can't face testifying, taking a fair offer inside an uncertain range is a perfectly rational call and nobody should make you feel otherwise. The lawyer advises; under Texas Disciplinary Rule 1.02, you decide whether to accept a settlement, subject to the rule’s stated qualifications. Good advice tells you what the lawyer would do and why, then gets out of the way.
Negotiation often happens more than once. The parties may talk before filing, after records arrive, at mediation and again near trial. The information and expense are different at each point. Before taking another step, ask what it should clarify and what it will cost. There may be a good reason to interview one more witness or obtain one more record. Saying the firm needs to look aggressive does not identify that reason.
What TBLS certification does and does not add
TBLS Personal Injury Trial Law certification evaluates an individual lawyer's practice and qualifying trial responsibilities, among other requirements. It gives you a verifiable starting point for asking about trial experience; our pillar guide explains what it means to be board certified in personal injury trial law in Texas. What it doesn't do: certify that any particular demand is sound, force an insurer to settle, or say anything about the competence of a lawyer who isn't certified. Aaron A. Herbert's published profile states that he has held this certification since 2008; you can check current status through the official directories.
Here's what to ask any lawyer you're thinking about hiring. What have you personally tried to a verdict as lead counsel? When was the last time you handled a liability or injury issue like mine? What would you send a preservation letter about this week? What would make you tell me to take the money instead of filing? And if I hire your firm, who actually does the trial prep, you or somebody I haven't met yet? Those questions connect a certificate on the wall to the work you're paying for. The answers will be different for every case, and nobody honest turns last year's verdict into a promise about yours.
Ask what has actually been done to prepare for trial. Which records were preserved? Why is an expert needed? What is the strongest defense, and what would make settlement advisable? The answers help you assess the work even if there is no trial. A lawyer’s description of a willingness to fight is not a substitute for that discussion.
Frequently asked questions
Does filing suit mean the firm expects a jury trial? No. Counsel may be protecting a deadline or seeking evidence through formal discovery. Ask why filing is necessary now, what it allows the lawyer to do and what the added cost and risk will be. There may still be a settlement afterward. Filing alone does not tell you whether a trial is likely.
Will the insurance company pay more because Aaron is board certified? There is no automatic increase. The insurer’s assessment may take account of counsel’s experience, but the claim still depends on the facts, available proof, coverage and legal risks. Certification does not establish an entitlement to a percentage increase or a particular offer. Ask how counsel intends to support the demand in your case.
Can a lawyer prepare well without trying many cases? Yes. Plenty of excellent lawyers build strong files in different ways, and some bring in experienced trial counsel when a case needs it. Ask who will actually be on your team and what the plan is. Certification is one useful credential. It isn't a monopoly on competent work.
How much preparation is enough before accepting an offer? There is no single checklist that answers that for every claim. Consider unresolved liability and medical questions, what more can reasonably be learned, the cost of obtaining it and the client’s circumstances. Ask counsel to identify the remaining uncertainty and explain whether further work is likely to change the advice. The answer should address the actual offer and the available evidence.
Additional questions about mediation and trial preparation
What does a mediation actually test? A neutral mediator helps the parties negotiate; the mediator generally does not decide the merits or impose a settlement. The process may reveal a disagreement about evidence, risk or settlement authority. Bring a supported account of the claim, an assessment of its weaknesses and an estimate of the client’s net recovery. Sometimes further evidence is needed before agreement is possible. An unsuccessful session can still identify that need, but attendance alone does not guarantee useful information or a resolution.
If the defense has an expert, must the plaintiff retain one? Not automatically. It depends on the issue, what the proof requirements are, how solid the opposing opinion really is, and what you already have. Your treating surgeon can cover a lot of the medical ground. A complex engineering or causation question is another matter and may need a specialist. Before you write the retainer check, pick apart the defense expert's assumptions and define exactly what your expert would need to say. Sometimes a deposition or a records request shows the defense opinion is standing on a premise that's already in dispute.
Can trial preparation hurt settlement? Yes. A task can cost more than the information it produces is worth. Ask why it is needed and review the answer as the case develops. You may have enough information to settle before discovery ends. Or one more deposition may resolve the issue preventing agreement. The recommendation should explain that choice rather than assume every available task must be done.
What happens if the lawyer recommends settlement but I want trial? Discuss the reasons before time runs out. Ask for a written account of the options, the disputed proof, likely expenses and any limits on continuing. The client controls acceptance of settlement under Rule 1.02, subject to its qualifications; the lawyer still has professional duties in handling the matter. A second opinion may be worthwhile if there is enough time. Keep court deadlines and the expiration of any offer in view while considering it.
Sources
- Texas Board of Legal Specialization, Personal Injury Trial Law certification standards
- Texas Rules of Civil Procedure, current official version
- Texas Rules of Evidence, effective July 2, 2026
- Texas Civil Practice and Remedies Code, Chapter 33
- Texas Civil Practice and Remedies Code, Chapter 41
Founding Attorney
Aaron A. Herbert is a Texas attorney, Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization.
For over a decade he has shown an unwavering commitment to clients who were seriously injured by major accidents and industrial catastrophes. During that time he has earned the reputation as one of America’s most aggressive trial lawyers by achieving noteworthy recoveries from judges and juries, as well as substantial settlements prior to trial, the majority of which contained negotiated confidentiality agreements at the request of the defense. When asked about these cases, Mr. Herbert has said that each case not only justified the recovery level, but that no one would trade places with any one of these victims in return for any amount of money, once they know the facts and severity of the injuries and tragedy involved. According to Mr. Herbert, “there can be no substitute for passion, preparation and persistence in the practice of law.” He is known not only for this tenacious preparation, but also for his imagination in the courtroom. He is passionate and persistent in seeking to obtain the maximum case value for each individual client at trial or through settlement, while reducing the stress of litigation on his clients.
Born and raised in Dallas, Texas, Mr. Herbert enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. After the Marines, he obtained a Bachelor of Science in Criminal Justice from Texas A&M University, then a Juris Doctorate from the University of Oklahoma College of Law. There he graduated in the top of his class and became an eternal Sooners Football fan. Aaron has worked as a zealous advocate for injured clients at several boutique personal injury litigation firms where he amassed numerous jury verdicts. After spending a year as the top earning litigation attorney at a firm that frequently tops verdict search as one with the highest number of trial wins in Texas, Aaron accepted a position as the managing pre-litigation attorney at another Dallas personal injury firm. Over the next seven years he transitioned to the managing litigation attorney, and that firm grew to one of the largest personal injury firms in Dallas. In 2010 he formed the Law Firm of Aaron A. Herbert, to get back to a focus on developing each individual case and maximizing case value for each client.
Mr. Herbert practices law with the belief that a well taken care of, highly engaged and motivated team of employees working in a cooperative team environment will result in superior representation and great results for the firm clients. He believes in always setting a goal of achieving the best possible results for each and every client.
Education
- Texas A&M University (B.S. Criminal Justice, 1999)
- University of Oklahoma College of Law (J.D., 2002)
Professional Associations
- Licensed to practice in Texas (2002)
- Board Certified in Personal Injury Trial Law, Texas Board of Legal Specialization (2008)
Publications
- Litigating Dog Bite Cases, Texas Dog Law Seminar, Dallas 2009
Member
- State Bar of Texas
- American Bar Association
- American Trial Lawyer Association
- Texas Trial Lawyers Association
- Dallas Trial Lawyers Association
- Dallas County Bar Association
- Tarrant County Bar Association
- Million Dollar Advocates Forum
- National Trial Lawyers – Top 100 Trial Lawyers
Texas Bar #24036761 · The Law Firm of Aaron A. Herbert, P.C. · Dallas, Texas
General information, not legal advice for a particular case. Past experience and credentials do not guarantee an outcome.