A lot of people talk about what it’s like to be a personal injury lawyer, and how the courts work for hearing personal injury cases.
But few explore what it’s like to be a client in a personal injury case; and what to expect, and how to best go through the process. The purpose of today’s instalment of the Toronto Injury Lawyer Blog is to exactly that. It’s our hope that these tips will give you some best practices to make the journey as smooth as possible; and to ensure a positive outcome for your personal injury case.
Tip #1: Lower your expectations. This tip applies both for the duration of your case, and the value of your case. The cold, hard truth is that your case, much like all personal injury cases across Ontario take a very long time to complete. The wheels of justice turn slowly, and personal injury cases are no exception. Insurance companies don’t make a profit throwing money at all cases which cross their desks. They will grind you out and wait you out. But it’s not just insurers which contribute to delays. The Courts aren’t any help either when it comes to personal injury cases. The Courts are under funded, and over worked. They have very limited resources, for a volume of cases which gets bigger and bigger year after year. The Courts are expected to do more work, with less resources. Those limited resources are shifted away from the civil justice system (where personal injury cases are heard), and have been transferred to criminal courts. This is a recipe for disaster when it comes to having a personal injury case heard in a reasonable period of time.
When it comes to the valuation of your case; the vast majority of Plaintiffs believe that their case is worth millions (and millions) of dollars. The cold, hard truth is that the overwhelming majority of personal injury cases are not worth millions (and millions) of dollars. Many Plaintiffs get dollar figures in their head and fixate on a pre determined dollar amount. When asked how they got to this valuation; there is no logic or legal basis for this figure other than the number felt right. Unfortunately, this is not how the law works. The law does not allow you to make up a number in your head and award you that number based on a feeling or it sounding like a good number. This is particularly true in Canada where there are caps damages for pain and suffering. The value of cases is set on a variety of factors which include, but are not limited to:
- The nature and severity of the injury along with the degree of the impairment
- The extent to which the Plaintiff has, or has not, recovered from the injuries
- The Pre-existing condition and pre-accident level of functioning of the Plaintiff
- The Plaintiff’s age, education, training and experience
- The Plaintiff’s pre-accident and post accident employment, along with their earnings as reflected on their tax returns
- Liability and any degree of contributory negligence
- The likeability and credibility of the Plaintiff
- An analysis of precedent cases involving similar facts and/or similar injuries
- The availability of any collateral benefits which set off the award
- The application of the threshold and statutory deductible (MVA claims only)
- What the surveillance shows (if any)
- The amount of past and future care which is require
- What the experts say (or don’t say) about the Plaintiff’s injuries and level of functioning
There are still a myriad of other factors which go in to assessing the value of a personal injury case. As you can see, it’s not based on a feeling or the biggest dollar figure that pops into one’s head.
Tip #2: See your doctor! The great thing about Canada is the medical treatment is FREE! If medical treatment or a specialist referral is offered to you, then it needs to be taken. The insurer and Judge will draw a negative inference if the treatment or referral is declined. They will also draw a negative inference if the appointment is missed. It’s really hard for a Plaintiff to say that they are seriously injured, yet, when medical help is offered, that medical help is refused; especially when the treatment is covered by OHIP. Missing appointments and refusing medical treatment is self destructive to a Plaintiff’s personal injury case.
Tip #3: Communicate with your personal injury lawyer: If your lawyer is trying to reach you, it’s important that you communicate with him/her. Your personal injury lawyer cannot advocate on your behalf to get you the results which you deserve if you don’t answer his/her questions. If you fail to communicate with your personal injury lawyer, s/he will have to get off the record and you will be left without a lawyer and a legal bill from your lawyer will need to be paid out of the proceeds of settlement of judgment.
Tip #4 Never Never Never Give Up! We’ve saved the best tip for last. The legal system is designed to grind down litigants. Cases are not designed, or intended to be “fun” ways to pass the time. They are expensive. They are emotional. They are taxing. They are draining. You, as an injured Plaintiff, are NOT in the business of litigating cases day after day quite like insurance companies are. Your case is a cost of doing business for the insurance company. They are very familiar with the ups and downs of a personal injury case because for them, it’s a part of their business model. But for you, it’s very personal! How can it not be when the case is all about you? This is also likely the first time you’ve needed to take somebody to Court. That makes you what’s called an inexperienced litigant. There will be many highs, and many lows during the life of your personal injury case. It’s important not to get too high, and not to get too low as the case progresses. Keep in mind that there is light at the end of the tunnel. Keep believing. Don’t give up. That’s exactly what the insurer wants to happen. When you give up, they win. It’s that simple