Receiving a Settlement in Ontario Injury Lawsuits

There is a misconception that most car accident lawsuits and other personal injury claims are won or lost at trial. In fact, approximately 5% of cases are tried before a judge or jury – typically, when the defendant refuses to accept liability or disputes the extent of the plaintiff’s injuries and losses. The other 95% of injury lawsuits are resolved by a negotiated settlement between the parties.

It might surprise you to know that preparing your lawsuit for successful resolution should start as soon as you can turn your attention to your longer-term well-being.

When you have been seriously injured in a car accident, it is understandably easy to lose track of the bigger picture relating to your potential lawsuit. Your life and the lives of your loved ones can be completely disrupted as you all scramble in response to immediate and pressing physical, emotional, and financial needs caused by the accident. At this time, your focus should be on rehabilitating your acute injuries.

However, if you have suffered life-changing impairments that will continue to interfere with your health, employment, and daily activities, choosing the right personal injury lawyers needs to be a priority at your earliest opportunity. In many ways, this is the most important choice you can make.

Injury Law firms can be divided roughly into two groups – those that will take challenging cases to trial for their clients and those that try to avoid trial at all costs. While there are pros and cons to both approaches (depending on the client’s needs and expectations), trial lawyers with a strong record and reputation usually can achieve better results for their clients in settlement negotiations than so-called “settlement” firms.

There are several reasons why trial lawyers are more successful. First, the insurance defence lawyers in the lawsuit know that trial lawyers stand behind their clients, prepared to test their evidence in court. As a result, they cannot be bullied into recommending a low-ball or unreasonable offer. A mutual respect is formed between the parties which creates opportunities for frank and honest negotiations. Generally, the insurers that pay out car accident settlements take a much stricter approach if they think the plaintiff’s lawyer is unwilling to go to trial. In many cases, these lawsuits get strung along for years without much progress until the client gives in.

Second, and most importantly, the reason trial lawyers can commit to their client’s cases is that they put in the work. Leading injury law firms invest time and resources into thorough and expert preparation and management of every client’s claim, starting from the moment the retainer agreement is signed and continuing up to and including trial preparation if necessary. Armed with the best evidence and a clear strategy, trial lawyers can advocate for their clients from a position of strength, negotiating fair and reasonable settlements, or pushing forward to trial.

Effective case management includes early and comprehensive investigation of the accident, gathering necessary medical, employment and other evidence, supervising and assisting with the accident benefits claim (income replacement, rehabilitation, home care and assistance), and identifying and arranging for specialist and expert assessments. It also involves open and respectful communication, both with the defendant’s insurance adjuster and lawyer, and with the client’s accident benefits adjuster. This type of communication is essential to the forward momentum of the lawsuit and greatly reduces the timeframe for productive settlement discussions.

To summarize, if you want to receive a fair and reasonable settlement that provides for your ongoing recovery and addresses your financial needs, you need to be prepared to fight for it at court. Most of the time, a trial will not be required. However, you should choose lawyers who are both willing and able to win your case at trial to maximize your success. Trusting your lawyers to fearlessly represent you interests provides peace of mind so you can focus on your recovery.

Quick Settlement Versus Continuing the Lawsuit

The perceived downside of treating cases as potential trial lawsuits is that it does take time and effort. It can seem attractive when the defendant offers a low but still considerable settlement amount early in the process. However, they only make these sorts of offer when the insurer’s risk makes it worthwhile for them to shut down your claim quickly – for example, where it is obvious that the defendant is at fault, or the plaintiff’s injuries will probably cause ongoing functional impairments. They do not want you realize the full extent of your possible damages award, so they make an offer that might take care of your immediate financial needs, hoping that you will not want to fight for more.

Your lawyers are in the best position to advise you. They understand the strengths and weaknesses of your case and are aware of the specific circumstances that you are facing. Sometimes, accepting this type of settlement might be a reasonable option for you. If so, your lawyers will help you understand the consequences of settling versus continuing the lawsuit.

Most of the time, accepting this type of quick settlement is not your best option if you have been seriously injured. It can take many months or years to have the full picture of your impairments and losses. You might settle on the assumption that your condition will continue to improve, only to discover that your ongoing impairments will permanently impact your daily life. Lawyers who avoid trial are more likely to push you into accepting early settlement because it represents a quick return with minimal risk or effort for them, regardless of a potential downside for your long-term well-being.

To summarize, if you want to receive a fair and reasonable settlement, you should trust your lawyers to work in your best interest and accept that it will take time to build your strongest case.

What is your role in the process?

To build your strongest case, you need to be prepared to participate in your rehabilitation fully and attend any medical assessments that your lawyers recommend. Your case depends on the evidence you provide to your medical team and consulting specialists. Your medical records will document your pre-history and the nature and extent of your accident-related injuries and impairments. Therefore, your job is to describe your injuries and impairments fully, consistently, and accurately every time you attend. Without this kind of reporting, it is much more difficult to prove your damages. Similarly, if you are required to attend an insurance medical assessment for accident benefits, you must give your best effort and describe your condition fully and accurately. The better these assessments match the rest of your records, the stronger your evidence becomes. Accurate, consistent medical records give your lawyers compelling evidence supporting higher settlements.

Your other crucial contribution occurs at Examinations for Discovery. These examinations take place after the parties exchange available documentary evidence (medical records, police files, etc.). They represent your best opportunity to present your case before trial. The defendant’s lawyer will interview you about the accident, your injuries, treatment, employment, and ongoing limitations you are experiencing. Your lawyers will take the time to prepare you for the examination, so that you can answer confidently and accurately. Your evidence can complete the picture that the medical records outline, so that the defendant’s insurer can fairly appraise your damages claim.

Once Discoveries are complete, serious settlement discussions can take place, unless the parties disagree fundamentally about the claim. In this case, either or both can hire experts to provide opinions about your impairments and losses. As before, your job is to participate and report fully, accurately, and consistently about your impairments and limitations.

If the claim does not settle after Discoveries, the lawsuit proceeds towards trial. Both sides continue to develop their case. If the parties are interested, a formal mediation can be booked. Mediation can be an excellent settlement opportunity. Each of the parties presents its best case to the other and an independent mediator, who will offer advice and encourage a reasonable compromise. As usual, your position at mediation will be much stronger if the defence lawyer and mediator recognize and respect your lawyer’s trial expertise and willingness to proceed to trial.

Whether or not a mediation is held, the parties can continue to discuss settlement leading to the pre-trial conference that always precedes a trial. Unless the sides have drawn lines in the sand and refuse to compromise, the pre-trial judge can often propose a fair settlement based on similar decided cases and their expertise. An experienced trial lawyer shines at pre-trial, expertly framing the dispute in your favour.

Finally, even if a pre-trial does not lead to settlement, your lawyers will continue to push for advantageous terms up to and during the trial itself. Remarkably, once it is clear you and your lawyers will not be intimidated, even the most contentious lawsuits often settle on the doorstep of court.

If you or someone you love has been injured in a motor vehicle accident, Campisi can help you get the settlement you deserve. 

Other settlement articles that may interest you:

Before You Settle Your Personal Injury Lawsuit