The Personal Injury Litigation Process
A personal injury lawsuit is the way to obtain compensation for your losses (known as damages) stemming from a personal injury accident. There are several possible stages to a lawsuit, which are outlined below. The potential to settle the case exists at each step and even between the steps, so you may not experience each step in your case. The vast majority of cases settle at one of the intermediary steps, often long before trial.
Hire a Lawyer
The first step in a personal injury lawsuit is to hire an experienced personal injury lawyer. At your free consultation with Kenneth Cristall Law Corporation, you will be asked several questions. At the meeting, the lawyer will assess the situation based on the facts and details of the accident, including who was at fault, potential witnesses, the injuries you sustained, what doctors you saw and when, the treatment you received and may still receive, and the impact on your income. You will be asked whether you reported the accident, if you spoke to an insurance adjuster and details of your insurance.
The practical aspects of your case will also be discussed at the initial meeting, such as the contingency fee arrangement and retainer agreement, which makes the legal representation official. Your lawyer will also share information on how things will proceed and how you will be kept informed of the progress of your case.
Notification of Intention to File a Lawsuit
After retaining counsel and before the limitation period expires, your lawyer will send notification of your intention to file a lawsuit to the defendant’s insurance company (ICBC in the case of a motor vehicle accident). Sometimes a settlement is reached before a lawsuit is even formally filed.
Start a Lawsuit
Your lawyer begins the lawsuit by serving a notice of civil claim to the defendant (the insurance company) and filing it in court. Lawsuits can often be filed up to two years from the date of the accident (exceptions apply, however, such as lawsuits against municipalities).
The notice of civil claim sets out what you are requesting of the defendant (e.g., to accept liability and pay for damages). The defendant must serve and file a response, which will contain various affirmative defences, explaining why the defendant should not be held liable for the plaintiff’s damages. The defendant also has the ability to file a counterclaim which the plaintiff must answer. If there is reason to pass liability to another person, then the defendant must serve and file a third-party claim and the receiving party must file a response.
Next, documents and information are requested (e.g., medical information and reports) and exchanged on an ongoing basis between your lawyer and the defendant. If your lawyer is unable to obtain disclosure of documents that were requested and not provided, then he or she may make or respond to an interim application to the court to obtain that information.
Examination for Discovery
After gathering all the relevant facts and documents prior to a trial, an exchange of information called an "Examination for Discovery" takes place. The purpose of this in-person, formal meeting is to ensure that the parties in the lawsuit have all the information necessary for a trial. This exchange of information can also lead to settlement.
During this phase of the process, the defence lawyer will ask you questions under oath about how the accident happened, the injuries sustained, treatment, prognosis and the impact on your life. Your lawyer will mostly ask questions about how the accident happened in order to try to obtain evidence establishing that the defendant’s negligence caused the accident. The defendant’s insurer (ICBC in a motor vehicle accident claim) has the right to request that you undergo an independent medical examination. You may also be required to have a functional capacity assessment completed if your injuries are preventing you from working, for further review.
After a lawsuit has been filed, and up to 77 days before the trial date, either the defendant’s lawyer or your lawyer may deliver to the other party a “Notice to Mediate.” Thereafter, each side will need to deliver a written mediation brief to the other party usually at least seven days before the mediation.
Mediation could result in a settlement as it enables the parties to develop a better understanding of each other’s case. The cost is usually borne equally by each side equally.
The mediator is usually an experienced lawyer or former judge chosen by the lawyers, who tries to facilitate a settlement. The mediator has no power to force a settlement, however, and nothing that occurs at the mediation can be held against either party if the matter proceeds to trial.
At any stage in the process, even after mediation, the other side may make an offer to settle. Your lawyer will review the offer, advise you of it and provide his or her opinion on whether you should accept it. Your lawyer has the experience to know if the settlement offer is in line with what you would receive at a trial. If you agree to a settlement, it is usually a condition of the offer that you give up the right to pursue any further legal action. This means you cannot go back later and ask for more compensation. You will need to sign documentation at the time when you receive the settlement funds (less legal fees and disbursements).
Pre-Trial Judicial Conference
If an agreement still isn’t reached before a trial, a pre-trial conference is another opportunity to settle the case. The parties meet with a judge, deal with any preliminary matters and discuss the strengths and weaknesses of their cases. The courts do not want to waste valuable time on cases where the outcome is likely clear, so the judge will try to encourage the parties to negotiate a settlement at this stage. If a settlement is not obtained, then a trial date is set and a trial proceeds.
The matter proceeds to trial only in rare circumstances where there is ambiguity in the facts or the parties cannot agree. At a trial, your lawyer will argue the case and call witnesses (such as medical experts). After the trial, the judge will make a decision. Again, a settlement can be reached between the parties at any time before the matter is decided by the court.
As trials are rare, applications to appeal their decisions are even rarer. The unsuccessful party may apply to appeal the trial decision but appeals are rarely successful unless the judge relied on an erroneous interpretation of the law in his or her decision. The appeals court may or may not hear the appeal or reverse that decision, depending on the case.
If you have had a personal injury accident in Vancouver, Kenneth Cristall Law Corporation has top lawyers to represent you. At Kenneth Cristall Law we will help you to resolve all the issues involved so that you receive fair compensation for your injuries. Call us today at 604-654-2250.