January 3, 2017

HOW TO BUILD A FILE

Written by Charlene Lewin, Senior Licensed Paralegal at Camisi LLP.

Charlene is the recipient of the Distinguished Law Clerk Award 2016 from the Ontario Trial Lawyers Association. The Distinguished Law Clerk Award is awarded to a senior law clerk, with at least 5 years membership in the OTLA Law Clerks Section and who has consistently exemplified the mission of the organization.

So you’ve met with the new client and gone through the intake material. They have signed authorizations. What next? No matter how thorough your interview there is still information that you need about your client.

A few simple searches can mean everything. In a chronic pain case, credibility is everything. Warn the client about posting on social media. I have found newspaper articles about my client drug dealing, u-tube videos with my client singing at a bachelorette party, and a phone listing with an escort service. A picture is worth a thousand words….and the wrong picture could cost a lot more than that.

Order the Police Report, photos, witness statements, whatever you can get from the Police. In the past few years more information is being redacted and motions are often necessary. Getting this material sooner rather than later will save you a lot of headaches.
Many OPP offices (and sometimes even Toronto Police Services) are now sending redacted reports. Sometimes a WAGG motion is necessary. If this is brought by the defence, ask to be cc’d on all documents received prior to giving your consent to the motion.
If there have been charges against either party, allow 6 months for the charges to be dealt with and then try again to order the police file. If possible, get a certificate of conviction and the transcript of any criminal proceedings.
If the client was extricated from the vehicle, the fire department will have a file. Get the fire department records, paramedic records and ambulance call report. A transcription of the 911 call and also be obtained. These first responders may be the people you want to call to be witnesses at trial, and trying to find them 5 years later won’t be easy.
car accident 2

Send the notice letter. Do searches to make sure you include all parties
Write for the damage documentation. Ask for colour photos. Best if you can get them on a cd-rom then you can print them the way you want (landscape style, etc.)
car accident

If there is damage to light stand poles, traffic signs or stop lights, copies of repair bills can be obtained from the City where the accident happened.
If you require traffic light signal timing reports, order them immediately as this is a timely process, and if you are hiring an engineer or expert in accident reconstruction, they will require this information.
Weather reports are now easy to obtain on line for the date of the accident.
weather

Ask the client if they have photos of the accident scene. This in most important with a slip and fall. Google maps are a last resort as they don’t show current detail. Sending an investigator is often worth the money.
no turn sign

Colour photos of the damaged vehicle look great in a brief, but not as good as photos of the client. If the client retains us immediately following the accident, we should have photos of casts, scars, seat belt bruising. Ask the client if the family member took photos in the hospital. Often we don’t see the client until many months post accident. If there is scarring it is important that a profession take photos with proper lighting. Facial scarring to a young person or someone working in sale/marketing can have tremendous psychological impact as well as contribution to a loss of income claim or potentially the cost of plastic surgery.
woman in mirror

Ask for a copy of the policy of insurance and/or policy limits. Make sure there are no coverage issues. Think about uninsured/underinsured or Family Protection (OPCF 44R) coverage.
Draft the claim. You don’t need to wait until the 2 year limitation. If the police investigation is not sufficient, hire an investigator. If necessary, drive to the scene and take pictures. Remember that things don’t stay static. I had a client who was struck in his scooter on a bridge. At the time of the trial, 7 years later, the bridge was no longer a bridge. It would have been helpful to have photographs. Especially if you have a stop sign that is obstructed by trees. Taking a picture when the accident happens is a lot more effective then returning to the scene in January when the leaves are gone. If the accident happens in a blizzard, showing the accident scene on a sunny day doesn’t give the same effect.
car accident 3

If the defendant has moved or is evading service, you will be glad you didn’t wait to the last minute to issue the claim. Also, if you have a claim against a “John Doe” the insurer may fund some investigation to locate the possible defendant. I had a hit and run in the Kingston area and several witnesses at the local army base came forward after an ad was posted in a local newspaper. Had we waited months or years, we would not likely have had the same success.
A lot of stores have surveillance, but they don’t keep those surveillance tapes. Gas stations are a good example, and are constantly the recipient of slip and fall claims. If you’ve waited months to put them on the notice, the tapes are gone and the employees have probably moved on. Getting an investigator to attend immediately and look for witnesses, or demand surveillance is imperative. Like convenience stores, gas station personnel are often p/t students or others in transition and will be hard to find 3 years after the fact.
car accident 4

Pre-accident medical history. Most clients will tell you that they were in the best shape of their life prior to the accident. Some will tell you that they had a pre-existing condition but it was exacerbated by the accident, or they have forgotten pre-existing problems are thought they were immaterial. Review the medicals closely. The xray of the fractured vertebrae that was taken 2 days prior to the crash, or the OHIP summary listing 10 visits for sciatica in the 2 months prior to the crash can ruin your case, especially when the defence finds them before you do. The defence clerks often have more time on their hands than we do to look over OHIP summaries and doctors notes.
man with medical helper

Build your file before discovery. Prescription summaries are almost always undertakings. Why not get them ahead of time. That is also a good window into the health of the client pre-accident.
variety of pills in hand

Make a chronology. This is the best way to get to know your client. Start with the date of birth, education, employment, date of loss, and then summarize all key medicals, including pre-accident family doctor’s notes. Throw in any life events like marriage or divorce, or birth of children. When the client calls you can open the chronology and have a snap shot into their life. “Are you doing anything special for your birthday on Friday” is a good way to build rapport. It is also a good way to track their activity. “It looks like it’s been 8 months since you’ve seen the neurologist, do you have a follow up appointment?”
Take an accurate employment history. Previous employers often make good lay witnesses. Former co-workers make GREAT lay witnesses. Companies close, merge or re-organizes, so don’t procrastinate ordering employment files and tracking down supervisors or co-workers. Employment files don’t often give the full picture of how much overtime would have been available, or if a promotion was on the horizon. Taking a “will say” statement could make or break your claim for loss of income and loss of competitive advantage.
people working at table

Getting ready for discovery. Remind the client that this is the time insurer’s order surveillance. Ask the client is there is anything you need to know. If they have been doing some cash jobs better that you find out before the defence tells you.
man with camera in car

Make sure your affidavit of documents is served 2 weeks in advance of the discovery so that counsel and see what they are dealing with.
If you have done a good job building your file, getting files from CPP, the LTD carrier, all doctors, OHIP, EI, WSIB and CCRA, you should not have a huge list of undertakings. Get an update of any subrogated claim to OHIP in advance of discovery.
If your file is not built up sufficient before the discovery, you are going to have a lot of undertakings to comply with. This may delay moving ahead quickly to mediation.
All undertaking letters should be cc’d to the defence counsel. If possible, diarize letters 30-60-90 days. After 90 days you can write to the defence and advise that you have made 3 attempts to obtain whichever record, and you have made your best effort, therefore they now have the option to bring a 30.10 motion. The other benefit is that the defence will be getting copious amounts of mail from you reminding them that the file is not sitting idle. If your firm is spending time on the file, the message being sent is that it’s worth money.
bills

Ensure that if a 30.10 motion is brought you are cc’d on all documents received.
At the discovery canvass dates that the defence counsel is available for mediation. If possible, send a letter with dates that specific mediators are available and get something set up six months after the discovery.
After discoveries you can pass the trial record. BEFORE YOU DO THIS REVIEW THE FILE CAREFULLY TO MAKE SURE U/T and REFUSAL MOTIONS ARE NOT NECESSARY.
Before you pass the trial record, note any parties in default that have not filed a defence. Once the trial record is filed diarize for 30 days to make sure you get the pre-trial certification forms back from the Court. On a few occasions I have had the Court misplace my trial record and not send the forms. On one occasion I had a matter struck despite the fact that the error was made by the Court not me (393 University only).
The Loss of Income Report and the Future Care report are going to be your main sources of recovery, so get them done before discovery if possible, if not, then certainly long before the mediation and don’t wait until your mediation brief is done to produce them. The lawyer will meet with his adjuster months before the mediation and the adjuster has to seek instructions from his/her superiors long in advance of mediation. The insurance company sets reserves shortly after a file is opened.

In the unfortunate event of a car accident, ensure you are prepared.

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