You’ve met with and retained a personal injury lawyer. What happens next?
Stage 1: Collection of Data
Your lawyer will identify all of the potential claimants and defendants in the proceeding. (Family members of an injured party may have a claim for damages under s. 61 of the Family Law Act, R.S.O. 1990 c. F3, in addition to the injured party’s claim.) Your lawyer will put all potential defendants on written notice of a potential claim, so that they may notify their insurers.
She will also identify the Limitation Period in your case (typically 2 years from the date of loss) and will calendar the same.
Your lawyer and her team will collect and review all or some of the following information:
motor vehicle accident report and police officer’s notes and records, photographs, witness list, any physical evidence related to the incident, news coverage information, weather data, social media information;
medical reports from each of the health care providers (ambulance reports, hospital reports, clinic notes and records from your general practitioner, therapists, and otherwise) who have treated you 5 years prior to the accident to the present, together with regular updates thereafter;
employment files, school records;
prescription summaries from any pharmacies you have attended 5 years prior to the accident to the present, together with regular updates thereafter;
OHIP’s decoded summary of all treatments OHIP has paid for 5 years prior to the accident to the present, together with regular updates thereafter.
Your lawyer and her team will begin creating an “Affidavit of Documents” summarizing all of the data they have collected, and this will be updated as new information is received. Your lawyer will also remind you to attend regularly with your medical team, to follow all medical advice, and to participate fully in your own recovery (attend all recommended therapy) and to “do your best” to get better, failing which your physical recovery, and your legal claim, may be compromised.
Your lawyer will remind you to keep her informed of your progress. As your body heals, your limitations may be reduced. It is important for your lawyer to have accurate and updated information as to your symptoms and limitations as they evolve.
Note! Data collection can take several months. Note! Law clerks request, gather and compile data during this stage. While your involvement with the firm may be primarily with law clerks at this early stage, you can ask to speak directly to your lawyer at any time.
Stage 2: Building Your Case With Experts
Once all necessary data is collected, all or part of that data is provided to various experts for review in the course of their investigation of various components of your claim. Experts then provide a written opinion based on their area of expertise.
Liability Experts: In some cases, liability is not clear. It may be necessary to retain an expert to provide an opinion in order to prove your case. Such experts may include accident reconstruction experts, engineers, human-factors analysts, and otherwise.
Damages Experts: Your losses or damages may include: General Damages for pain and suffering. Special Damages including past and future losses for:
medical rehabilitation costs
housekeeping and home maintenance costs
You must prove each category of loss.
To prove General Damages, your lawyer will retain a medical expert(s) to assess you, and to provide a written opinion letter setting out the nature and extent of your injuries. Your lawyer will also research existing case law, to determine a range of values for your injuries as diagnosed by the medical expert(s).
To prove Special Damages, your lawyer will retain expert(s) to substantiate and quantify such losses.
Your lawyer will determine which experts best suit the particular facts of your case. Her team will then arrange appointments for those experts to meet with you for assessments and to provide reports to the lawyer.
Your lawyer will determine the appropriate time to issue a Statement of Claim in court. Sometimes it is prudent to wait until your injuries have plateaued. Other times it is necessary to issue the Claim immediately (for example, when a Limitation Period is approaching).
Stage 3: Examinations for Discovery
The Examination for Discovery is an opportunity for lawyers to question, under oath, the opposing party(s) to the litigation. Much can be learned about the key witnesses, and the strengths and weaknesses of your case, during this process.
An audio recording and written record is taken of the lawyer’s questions and answers given by the witness. The transcripts can later be used to impeach the witness at trial. Your lawyer will meet with you before your Examination for Discovery to prepare for this important stage in the litigation process.
Often undertakings are given from one lawyer to another to produce certain materials or information after the Discovery. Sometimes lawyers refuse to provide certain materials or information requested on the basis of privilege. Such refusals may form the subject matter of a later motion in court, if the lawyer making the request for information believes the request was wrongly refused.
STAGE 4: Mediation / Settlement Negotiation
The parties typically have a thorough understanding of the case by the time Examination for Discoveries are complete, and accordingly, settlement discussions often occur thereafter.
Settlement discussions may take place between lawyers directly, or with the assistance of a Mediator.
Note! As there is substantial risk in proceeding to a trial, in that you may be ordered to pay the opposing party’s legal fees and disbursements if you are not successful, it is imperative to set realistic goals in the course of a negotiation.
Stage 5: Pre Trial
It may be that your case cannot be resolved through negotiation and a trial will be necessary to reach a resolution.
A pre-trial is an opportunity for both sides to present to a Judge, in concise fashion, a summary of their case. The Judge may provide his or her view as to the strengths and weaknesses of each party’s case, and offer his or her view of the likely outcome. The Judge’s view may encourage the parties to settle the matter.
If the matter still cannot be settled, it is put over to Assignment Court – and assigned a trial date.
Stage 6: Trial Preparation
Your lawyer has been preparing for trial from the day she opened your file. She has collected a substantial body of information necessary to win your case. She must now ensure that all of that information is organized in a digestible and compelling manner, and will be permitted into evidence at trial.
Note! It may take 6 months or longer to properly prepare for trial.
Stage 7: Trial & Appeal
Your day in Court has arrived. Your lawyer will have spent time preparing you and your witnesses for trial. Once all of the evidence of both parties is before the court, a decision will be reached by the Judge (or Judge/Jury). That decision is subject to appeal. If neither side appeals the decision, it is binding.
Note! If you lose your case, you will likely be ordered to pay the legal fees and disbursements of the opposing party. There is substantial risk in proceeding to trial, if you are not substantially certain of a successful outcome.