The Steps Involved in Personal Injury Litigation
If you have suffered a serious personal injury, at a certain point, you would have considered whether it was worthwhile taking legal action or not. If you decided to take legal action, and signed a retainer with a lawyer, you may wonder, what would come next?
First, it is important for clients to be informed about the nature of the retainer agreement they signed. A client should always look closely at the retainer agreement to determine if the lawyer is charging on an hourly basis or on contingency. If the lawyer is charging on a contingency basis, then there should not be any pertinent issues that should be of any concern to the client for the duration of the litigation. However, if the client signed with the lawyer on an hourly basis, then they should be aware that their legal bill will accumulate as time goes by and more work is completed on their file.
To ensure that the client is kept abreast of what their costs are, they should request an interim bill that shows all the tasks that have been completed to date and the total amount owed. No client wants to be blindsided by an astronomical bill that they were not even aware they were racking up over the course of litigation. A lawyer and a client should always be on the same page about the fees owing to the lawyer and how the fees will be payable to this lawyer by the client.
Once that issue is sorted out, what can the client expect? A client suffering the long-term effects of a personal injury should continue to seek treatment on a regular basis from their family doctor and from other specialists such as physiotherapists or massage therapists. This should make it clear to the defendant that the client has suffered long-term injuries, and these records should justify the damages the client is seeking. It is very important for clients to understand that they need to see their doctor regularly if they are serious about pursuing litigation. There is no definitive number of times that a client should be seeing his or her doctor, but approximately once every six to eight weeks would not be unreasonable. As the client continues to see their doctor, this should always be communicated to their lawyer on a regular basis so that they can order updated records at certain intervals over the course of the litigation.
A client should always be prepared as to the next stage of the litigation. After the lawyer's exchange pleadings (Statement of Claim, Statement of Defence, etc.), examinations for discoveries are likely to follow. A lawyer will prepare a client leading up to this by making the client ready to answer any possible questions the opposing lawyer may ask questions about their health, background and details surrounding the accident.
Following examinations for discovery, the answering of undertakings becomes the responsibility of both parties. Undertakings are requests for answers or documentation that could not be adequately answered during one party’s examination for discovery. A client should always do everything they can to assist their lawyer in answering these undertakings if it is within their power to do so.
Once the examinations for discovery and undertakings are completed, the waiting game begins. The next step that will likely come next will either be a mediation or pre-trial conference [1]. Either of these events could take up to a year or longer to occur. In the meantime, for each side to build their case, a client may be asked to attend an appointment by a medical practitioner for an expert report. This can be commissioned by either party, so clients should be aware of this possibility.
One of the most important things a client should always keep in mind is that the wheels of justice in Ontario move quite slowly. Getting a case to trial and even pre-trial conference will almost certainly take a year or longer. While mediation is an option that is available to depending on the jurisdiction [2], clients should expect mediations to take place further down the line due to the number of steps that must occur first such as the exchange of documents, the examinations for discovery, the completion of undertakings and any possible motions that may be brought beforehand. Mediators are often in demand and tend to have limited availability that can also push mediation dates far into the future.
These are all important factors clients must keep in mind in order to keep their expectations in check. It is also worth mentioning that many clients find themselves in the fortunate position of having their claims settled long before litigation begins with an adjuster. Remember, your claim will not be settled tomorrow, but be patient and if all goes well, you will walk away with a satisfying result. The lawyers at Singer Kwinter will always make the strongest case possible out of your claim and will not give up the fight!
[1] A pre-trial conference functions similar to a mediation except a judge assumes a role similar to a mediator.
[2] Under Rule 24.1 of the Rules of Civil Procedure, Toronto, Ottawa and Windsor have mandatory mediation for all actions. Parties are welcome to mediate matters in other jurisdictions if they agree to do so.
