Law shows on television make the litigation process look so easy! Why can’t my personal injury case work like that?
There’s generally a formula for legal dramas on television. That formula has worked for a very long time for shows like Law and Order.
Within the first 5-7 minutes (or earlier) there is a crime or some sort of problem which requires police intervention. The next 8-15 minutes, that crime is investigated by the police at the scene of the crime and research is done at the police station. Witnesses are interviewed, different characters are introduced. The viewers are led to believe one thing, when the show takes a sharp turn and points the litigation finger at a party you least expected to have a motive to commit the crime. The police catch the “bad guy“, and the show comes to a satisfying close. All of this is accomplished in the matter of a short half hour show, less time allotted for commercials (so even less content is required for the producers of the show).
Why can’t a personal injury case be as fast and clean from start to finish, just like I see on TV?
Because that’s TV and what happens on television does not depict what happens in real life. If it did, the real thing would not be as clean, as short, or as entertaining as the televised drama which so many people love to watch.
Real law and real litigation is slow, deliberate, boring (for viewers), frustrating for litigants and simply not entertaining. It rarely has the “smoking gun” or “gotcha” moment which people love to see. Not every case is of national importance. While the cases are certainly important to the litigants, those cases are not necessarily important to a wider audience. Given that the cases are slow and very document heavy, there is no chance that an entire case can be captured into a 30 minute television show.
Personal injury cases take well over 3 years (and often much longer) to finish from the issuance of the Statement of Claim, until the completion of trial. Jury trials themselves, particularly in complex car accident cases with multiple witnesses and experts can take anywhere from 6-8 weeks.
Fictionalised legal cases on television are neither complex, nor procedurally difficult. A big part of the law doesn’t necessarily involve the merits of the case itself. Rather, it has to deal with the procedure of getting the case from point “A” to point “B”.
Take the example of amending a Pleading in a personal injury case. This means that the Plaintiff wants to add, delete, or change an allegation contained in the Statement of Claim. This needs to be done by way of motion before a Judge. This is not a “sexy” or entertaining legal step, which would spike TV ratings. It is a mundane piece of legal procedure which is necessary to moving the case forward. You don’t see this sort of thing on television.
Take the example of a motion for substituted service on a Defendant. In a personal injury action, the Statement of Claim needs to be personally served on a Defendant. If the Defendant has changed addresses, or cannot be served for whatever reason; a personal injury lawyer will need to bring a motion before the Court seeking permission for substituted service. Substituted service is an alternative to personal service which the Court permits. This can be service by regular mail to a last known address, email, social media message, or service on a lawyer or insurer. The Court has wide discretion in terms of what it will order as an alternative to personal service and it is widely dependant on the case itself. In any event, motions for substituted service are very common. But you won’t see these sort of motion on any televised legal drama because they do little to entertain the audience, or to move a plot forward. You won’t have many viewers tunning in to catch what happened with the motion for substituted service.
If you happen to go to Superior Court (not Provincial Court) to watch what’s happening, chances are you won’t be watchin an interesting jury trial. You will likely be watching these sort of procedural motions happening in individual cases. The reason being is that procedural motions are very common and necessary to move cases forward. This sort of nitty gritty procedural work represents a lot of what advocacy is about given that 99% of personal injury claims settle outside of the Courtroom without going to trial. That’s not to say that trial work does not exist. It’s to show you that the majority of the time when lawyers are going to Court, it’s not for trial. Rather, it’s to argue on an interlocutory motion which does not decide the case one way or another.
The last point I’d like to make is that personal injury cases are very document intensive. There are loads and loads of medical records, hospital records, police records, tax returns, employment files, CPP Files, ODSP Files, Accident Benefit Files, OHIP records, rehab notes, witness statements and expert reports to sort through. While all of this may sound straight forward, I can assure you that it’s not. The records are detailed, lengthy and often hard to decipher the handwritten notes of doctors or treating professionals. What’s contained in those records carries a lot of weight. The notations in those records will be used to impeach the evidence of a deponent to hurt their credibility. If the records say one thing, but the oral evidence of a deponent speaks says another thing; who is the Judge and Jury to trust? In my experience, they often place more weight on what’s contained in the written records because they are kept contemporaneously with the event rather than based on memories which fade as time has passed. Often, examinations for discovery and trials take place many years after the fact, after the memories of the deponent have gotten worse and worse. This is why great weight is place on what’s contained in the records. But, relying on what’s written in a record does not make for entertaining television. What’s more entertaining, and easier to watch is what’s said up on the stand. That’s why what you see on TV does not translate into a real life legal case.