Written By: Joseph A. Cescon and Brock Turville, Student-at-Law
After sustaining an injury as a result of someone else’s negligence, you are likely wondering: what next? Everyone’s journey is different, but this general overview will help inform you about the legal steps. You should be able to focus on rehabilitation and recovery as your lawyers guide you through the legal process.
A. Hiring a lawyer
One of the most challenging decisions comes first: choosing a lawyer. You may be familiar with a firm’s name or have seen advertisements. Unfortunately, Misleading or false advertising and awards have plagued the personal injury practice. The Law Society of Ontario has stepped in to provide more rules to protect consumers, but problems to remain.
- Read online reviews (Google, Yelp, Facebook, etc.) with caution. These reviews can be helpful in understanding past clients’ experiences. Yet reviews do not always paint a complete picture. Be weary of fake reviews and testimonials.
- Consult trusted and reputable award platforms like the Canadian Law Awards and companies such as Lexpert and Canadian Lawyer.
- Ask others (lawyers, family, friends) about their experiences with personal injury firms and seek recommendations.
- If you are interested in hiring a particular lawyer, you can look them up on the Law Society’s lawyer directory to ensure they are licenced to practice law and have not been involved in any disciplinary actions. Resources such as Best Lawyers can be useful as well.
- Meet with multiple personal injury lawyers to make sure you have the right fit before you decide.
B. Assessing your claim
The first question we are usually asked relates to finances. How much will I receive?. Answering this question is not as straightforward as it may seem. There are various factors that affect the value of your claim, many of which are unknown at the time of an injury. Only after your lawyers have a more complete understanding of liability (how the injury occurred and who is responsible) and damages (the cost of your losses as related to your injuries) can they properly assess your case. Reputable personal injury lawyers need to know your long term prognosis to provide you with answers. That takes time. For more information on how your claim is assessed, see our previous blog post.
C. Starting a lawsuit
In most circumstances, a lawsuit must be commenced within 2 years from the date of your injury. This is called the limitation period. You should start a lawsuit as soon as possible. Do not wait until the two year mark approaches. If the limitation period expires, you will likely lose your right to sue.
Your lawyers will issue a Statement of Claim on your behalf and serve it on the defendant, which initiates the lawsuit or “tort claim”. The defendant typically responds by serving a Statement of Defence.
If you are injured in a motor vehicle accident in Ontario, you will likely have a no-fault or accident benefits claim in addition to your lawsuit or at-fault claim.
- For the lawsuit component, you are suing the tortfeasor (the individual/entity that caused your injuries) for their negligence. Although you name an individual person or numerous individuals in your Statement of Claim, this is to access the insurance the individual has access to.
- The accident benefits claim is also known as no-fault benefits, because the claim is not based on fault or negligence. Individuals that are injured can access these benefits through their own auto insurance companies, or if they do not have auto insurance, through the auto insurance of the other involved party . If your injuries are severe enough and you are deemed catastrophically impaired, you will have access to enhanced benefits. The principle of discoverability affects the period of time you have to claim these enhanced benefits as set out in the Ontario Court of Appeal Decision in Tomec.
For more information on the steps in an Accident Benefits or No-Fault Claim, watch for our forthcoming post.
Motions typically occur throughout your case to satisfy certain procedural requirements or to obtain important information. For example, a motion may be brought before the Superior Court of Justice to obtain police records or force a defendant to produce cell phone records.
E. Producing an Affidavit of Documents
The plaintiff and defendant must deliver an Affidavit of Documents, which lists all of the documents in that party’s power, possession, or control. This includes documents the party is willing and unwilling to produce.
F. Examinations for Discovery
This is a fact-finding process where a lawyer from the insurance company asks you questions under oath or affirmation about the incident, what your life was like before the injury and how it has changed since. In turn, your lawyers will question the individuals responsible for your injuries. This typically takes place in an office in the presence of a court reporter, but can also be completed remotely by way of videoconferencing. Transcripts will be made available to the parties after discovery. This process gives both sides a better understanding of the strengths and weaknesses of their case and may encourage settlement.
Mediation is a critical part of your case where parties convene in an attempt to see if the case can be resolved out of Court. In some jurisdictions such as Ottawa, Windsor and Toronto, it is a mandatory step before the Court will provide a trial date. Mediation usually takes place in an office, but can be done via videoconferencing. Your lawyers will prepare written submissions, typically called a mediation memorandum or brief, which is provided to the mediator and other party in advance of the mediation. On the day of the mediation, your lawyer will make submissions on your behalf and the defence lawyer will make submissions on behalf of the insurance company.
For more detailed information on the mediation process, watch for our forthcoming post.
H. Setting the matter down for trial
A case is set down for trial by serving and filing a Trial Record with the Court. The Registrar then places the action on the trial list. This means that you will be assigned a pre-trial conference and trial date.
Pre-trial conferences are presided over by Judges or Masters of the Superior Court of Justice. Parties meet with the pre-trial judge in an attempt to resolve matters or narrow the issues in advance of a trial.
Many cases settle out of Court, but all cases should be prepared to their natural endpoint: Trial. In the event that your case goes to trial, it will likely take place over a number of days or weeks, depending on complexity of the case and the number of necessary experts and witnesses. Your case will be heard before a jury or judge only. The vast majority of personal injury cases are tried before juries.
Finding the right personal injury firm with the necessary expertise and resources to obtain the best settlement or verdict possible is paramount. The lawyers at McLeish Orlando can help you through this process and remove the burden of a lawsuit so that you can focus on your recovery.
Contact the lawyers at McLeish Orlando to find out how we can help you with your case.