New Lawyer Practice Series Part 4: Plaintiff’s Personal Injury Law

So far in this blog series on Developing and Funding a Plaintiff’s Practice we’ve discussed marketing your practice, through building relationships and advertising and developing systems for document gathering. We continue our series with the importance of gathering damages reports for file development and progression.

Damages

It goes without saying that you will want to obtain as many records as you can about your client’s pre and post injury health and employment before the discovery. In this way, you will have a clearer picture of your client’s case and you will be well positioned to educate your client about issues raised in their pre-injury health records.

Obtaining records from non-parties can take time, so it is important to start this process early.   You do not want to be in a position where key documents about your client’s health are not available before discovery.

A good defence lawyer will often try to inject the Plaintiff’s credibility into the equation by seizing upon small inconsistencies or omissions in reports of pre-accident health history and extrapolating to the conclusion that the Plaintiff was trying to conceal past problems or blame the car crash for a pre-existing condition. It is for this reason that a comprehensive review of the OHIP summary and family doctors clinical notes and records must be completely reviewed for any pre-accident problems that may have some bearing on the case.  This includes reviewing, to the extent that they are legible, the family doctors hand written notes.

Loss of income information in the file should be obtained and reviewed, including the resume the Plaintiff has completed for the purposes of the litigation, the pre-accident income tax returns, school records and current and previous employment files.  Special consideration should be given whenever requesting school records.
The value of a complete set of your client’s school records cannot be understated.  Children and young adults spend the majority of their time at school interacting with their teachers, principals, and fellow classmates.  These records will also prove valuable in advancing the threshold. The client’s entire scholastic file should be obtained.   School records are subject to both The Education Act and the Freedom of Information and Protection of Privacy Act.  It must be remembered that a client’s OSR (Ontario Student Record) is not a complete student record.  They contain primarily academic records and do not necessarily include non-academic records such as achievement and aptitude testing, attendance records, social work reports etc. The OSR transfers with the student from school to school and only contains the information set out in Ministry of Education’s Guideline.  A copy of this Guideline can be accessed on the Ministry’s web site at https://www.edu.gov.on.ca/eng/document/curricul/osr/osr.html.  To ensure you have a complete record, you should already have a comprehensive list of the schools they attended along with the years attended.  This information will greatly reduce the amount of time taken in locatingOntario school records since they are filed by school.  This should be contained within the litigation resume the client provides to you following the initial interview.  A request ought to be made to each specific Board where your client attended school.  If one does not have a complete record of schools attended, make your initial request to the Board where your client last attended school and obtain the complete file, including the student’ s OSR.  Once the OSR is obtained, one will have a complete listing of all schools attended inOntario.  Additional requests can then be sent to the other Boards.

The timeliness for these records is important. The Freedom of Information and Protection of Privacy Act only requires that information be retained by an institution for at least one year.   Although the Ministry of Education’s Guidelines set out the retention period for specific documents within the OSR, records contained outside the OSR are subject to the guidelines and policies set by the specific Boards where they are kept.   For instance, the Toronto School Board may retain a psychological service profile of a student up until the student’s 30th birthday, while another Board may have a shorter or longer retention period.  Attendance records are only required to be kept for the current year and 3 years back.  The request to the Board should also be made under the Freedom of Information and Protection of Privacy Act.  This Act is more comprehensive in what must be provided to the person and is not limited to the specific records that are to be maintained under The Education Act and the Ministry’s Guidelines.  As well, due to the time requirements set under the Freedom of Information and Protection of Privacy Act, one is likely to receive the records in a timely fashion.  Lastly, if the entire student records are not released, one can appeal. The request for records should be worded to ensure that all records will be forwarded. One should request “the complete records, including but not limited to, the client’s Ontario Student Records (OSR), attendance records, attendance registry, academic and non-academic tests, psychological records, social work records, counselling records, and any and all notes, memorandum, and comments.

A complete set of school records will provide counsel not only with an academic profile of their client, but it will also impact on predicting the client’s ultimate academic success.  The records will also contain commentary on the characteristics and behavioural traits of the person which will assist in the overall assessment of what your client is destined to achieve academically.  Equally important, the records also provide a guide as to which principals, teachers and/or counsellors ought to be canvassed as potential witnesses for trial.

Stay tuned for our next blog post on How to Fund Your Practice.

Dale Orlando

Dale Orlando

Principal Partner

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