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Trial required?

“Do I have to go to trial?”  

It’s a good question, and having recently finished a nine day personal injury trial, it seems an appropriate topic for my next column.

The short answer is ‘no’, but sometimes it’s worth it to go the distance. 

There is a misconception by many that if you hire a lawyer, it means that your case will go to trial. The reality is, very few claims ever do. What you see on television in terms of court time (i.e. Suits, The Good Wife, LA Law, Boston Legal, Damages, etc.) is a far cry from the real practice of law. 

Television production aside, what we typically do outside the courtroom does not exactly make for the thrilling fast-pace drama that most people want to watch. So, while courtroom scenes makes for great television, the good news for most of you is that your case will settle without setting foot in a courtroom.

One of the reasons I get asked about the prospects of going to trial is that many people are afraid of it. The process is unfamiliar, so we shy away from it. We hear of the time they take, the costs involved, and we hear about the risks of losing. ICBC, or the opposing party, will try to scare you with a variety of potential consequences, and your fear builds. 

Trials are generally not as scary as they might seem. The time trials take can be a factor, but in my experience this is rarely a significant consideration. 

Legal costs for going to trial in personal injury claims should be rarely a factor, because most lawyers are hired on a contingency fee (a percentage basis). Where costs could be a factor is if there is a real risk of losing your case, or not beating the defendant’s last settlement offer. This is because the losing party generally has to pay the winning party’s costs. However, a calculated risk assessment can be made, and with some claims, there is now trial insurance available through third parties to help protect you. 

So with a good case, good expert witnesses (doctors, psychologists, occupational therapists, etc.), lay witnesses (friends, family, co-workers, teachers, etc.), and a proper assessment of the claim, a trial is nothing more than a presentation of the facts and the law, and asking someone other than an insurance company who is writing the cheque to decide what is a fair and reasonable result.  

While going to trial can be a good idea, it does not mean that one should always opt for it. There are circumstances in which it is, quite frankly, a bad idea. Lots of factors come into play in whether or not a lawyer will recommend going to trial, such as whether your case is before a jury or judge alone, your likability, whether liability is admitted or not seriously in issue, strength of the evidence, personal considerations (such as why less money now may be more valuable to you then more later, impact of a trial on other aspects of your life, etc.), publicity of the decision, etc., just to name a few.  

Should you go to trial? The ultimate question from the lawyer’s perspective (note: you may have separate personal considerations that you need to factor into your decision) is whether the amount being offered to you, considering all the circumstances, is within the reasonable range of damages that the court could award at trial. 

In cases where the settlement being offered is below the reasonable range, it will usually be my recommendation to run the trial. In that situation, a trial may not technically be required (there is often a low-ball offer on the table available for the taking), however, the benefits will likely outweigh the risks.  Regardless of my recommendation, the choice to go to trial is ultimately yours. Therefore, while you may not have to go to trial, in cases where the potential benefits outweigh the risks, you may actually want to.

*Important Note: The information contained in this column should not be treated by readers as legal advice, and should not be relied on without detailed legal counsel being sought.



The chronic pain effect

I observe her despair as she recounts all the changes that have occurred in her life since her accident. She is no longer the strong, independent, patient woman she once was. She is no longer able to care for her two children the way she used to. She can no longer do her job, and she can’t pay her bills, let alone all of her treatment costs. 

She has no social life, and her relationship with her husband is strained. She explains that she feels guilty that her husband has had to take over all the housework and parenting duties. She feels guilty that they cannot be intimate. She feels guilty that he has had to pick up extra shifts just so that they can try to pay their bills. She feels guilty as she watches their only savings disappear. 

Her husband seems to be understanding of some of her challenges, but he does not understand why her recovery is taking so long. He cannot understand why she does not want to go out for dinner with friends. He doesn’t understand why she hates being in the car and still refuses to drive past the accident scene. He is losing patience with their relationship. They fight all the time. 

Due to her injuries, she cannot workout or cook the way she used to, so they order in food a lot more often. She has gained 30 pounds, and her self-esteem has hit the floor. She is miserable and depressed.

She is sleep-deprived and in pain. She is tired of all the medications and their side effects. She is tired of the never-ending medical appointments. Nothing seems to help.  

Worst, though, is that none of the people close to her seem to really understand the pain she is in or why. No one can see her injuries (neck strain, back strain, concussion, headaches, depression), and from an outsider’s perspective, the car accident just wasn’t that bad. 

She does not want to live this way.  She just wants her life back.

Unfortunately, in my experience, the above scenario is incredibly common. The impact of chronic pain is profound, and it extends far beyond the injured individual. It affects everyone around them;   spouses, children, parents, co-workers, close friends . . . they are all affected. 

Marriages and relationships will often be destroyed. Jobs will be lost. People who are in pain all the time can be miserable to be around, and their ability to contribute to relationships as they once did is limited. Intimacy or other activities once enjoyed that fostered the relationship have gone by the wayside.  

While the pain and suffering endured by an injured person is compensable, what comes as a surprise to many of my clients is that family and friends do not have a claim for the pain and suffering they have endured. Basically, with the exception of something called an ‘in-trust claim’ (this is essentially compensation for services performed by the family member/friend for the injured person at the going rate for hired help) or cases of nervous shock (cases where the family member/friend suffers a recognizable psychiatric illness as a result of the accident), there is no compensation for the emotional toll your injuries have on others. 

However, despite the general lack of compensation available for family and friends affected, these individuals can play an important role in the amount of compensation you will recover in your personal injury claim. This is because the people in your life who are directly affected are also the ones who have seen the real impact that your accident has had on you. As a result, their evidence can be invaluable, in addition to the right medical and legal professionals, in helping you obtain fair compensation.  

Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

5 Claim misconceptions

If you have been hurt in an accident or as a result of medical negligence you will likely look to your friends and family for some advice on how to deal with the situation. These are the people you trust and it makes sense that you will look to them for help. Family and friends usually have your best interests in mind and do not want to see you taken advantage of. Unfortunately though, when it comes to ICBC claims or other accident claims, many people, particularly those who have not been through the process with the help of good legal counsel, will often be misinformed about things to do or not to do when dealing with ICBC or other matters. As a result, one of the biggest challenges I have in my job is to undo some of well-intentioned advice my clients have received from non-lawyers. Below are five common misconceptions that I find personal injury clients are often told by non-lawyers.


1. You should not go to work.

I will often hear clients say something like: “my friend says I shouldn’t go back to work.” The reality is that the decision to work or not work after an accident should be ultimately made by your doctor, not you. When I am asked this question by my clients, my advice is that if your doctor has recommended that you take time off work, then you should take it off. If your doctor is not supportive of you taking time off work then you should not take time off unless there are other valid reasons. If you choose to take time off work which is not supported by the medical evidence, then any wage loss you sustain will not be compensated.


2. You should not go on vacation.

Often I have clients who have pre-planned vacations but then the accident happens putting a hiccup in their plans. Friends or family will often say something like: “you have an ICBC claim, you can’t go on vacation now, ICBC will conclude that there is nothing wrong with you.” But life goes on after an accident in one form or another and you should generally continue to live your life as though a personal injury claim does not exist. If you are making a decision not to go on a pre-planned vacation purely for optic reasons (how you think it will appear to ICBC) then you are missing a trip that you should probably take. If you physically or mentally can’t go, that’s another story. My advice to clients with respect to vacations is that you should check with your doctor. If your doctor is of the view that it is safe for you to go on vacation and you want to go, then you should go. That being said, you need to understand that if you do go on vacation and you choose to do physically rigorous activities like bungee jumping, river rafting, horseback riding, sky diving, bull riding, etc. then be prepared for ICBC to suggest that you may not be that injured. You should also be prepared to hand over photos of your vacation.


3. You should not return to your physical activities.

Just like my advice with respect to vacations and working, the same holds true for physical activities. It all comes down to the advice of your doctor or other caregivers (specialists, physiotherapist, massage therapist, chiropractor, etc.). If they clear you to return to your activities, then you are not doing yourself any favours by sitting around the house. If you try an activity and it hurts, listen to your body and bring it up with your doctor at your next visit.


4. It is impossible to sue doctors.

I am always surprised when I hear someone say: “I thought you couldn’t sue doctors.” Yes, you can sue doctors, chiropractors, dentists, acupuncturists, etc. Medical malpractice claims are generally far more challenging than motor vehicle accident claims but it can be done if there is a valid claim. For more information on medical malpractice claims, see my previous article titled: Is it medical malpractice?


5. Lawyers are expensive.

Just like any other service, there is a cost involved but most personal injury lawyers work on a percentage basis, so barring unusual circumstances, the lawyer will easily pay for himself or herself. For more information on the cost of personal injury lawyers, see my previous article titled: Cost of an Injury Lawyer.


Those are just five of the misconceptions that I often hear, but there are others. Yes, you can do your own research on the internet and rely on the advice or experience of family and friends but you run a risk that the information you are getting is not accurate. Every case is unique and your case may require different advice than what is standard. At the end of the day, despite the good intentions of your family and friends, if you are receiving advice about any sort of legal claim it is always a good idea to seek that advice from a lawyer in the relevant field (i.e. personal injury, employment law, criminal law, family law, etc.).


*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.


Before you sign...

How many simple documents or forms do you sign each year without reading? When you sign, do you know what rights you are giving up? One of the most common myths about the law is that signing a document means nothing. But nothing could be further from the truth. Sometimes I hear people say, “I didn’t read it” or “I didn’t know that’s what it meant”, but generally speaking that is not going to matter. Legally enforceable documents come in all shapes and sizes, not just lengthy documents signed at a lawyer’s office. So before you sign, understand the bottom line.


Below are five common situations and things to keep in mind before you sign:

1. Risky activities - If you are about to participate in a risky activity (i.e. zip lining, river rafting, sporting event, etc.) you should assume that the agreement you are being asked to sign prevents you from being able to sue that company or organization for injury or death, however caused.

Before you sign, ask yourself these questions: Is it worth it? What safety measures are in place? Do I have disability insurance coverage if I get hurt?


2. Settling your injury claim - If you are settling a personal injury claim with an insurance company you should assume that if you sign the release agreement, there will be no more money. It does not matter that you did not know that additional problems would arise down the road or that the amount was “unfair”. An ICBC claim, unlike a WCB claim, cannot be re-opened. Once you have signed, your claim is done.

Before you sign, ask yourself these questions: Am I 100% better? Have I felt better for a while now? Am I confident that I know the extent of my injuries and I am not worried about further expenses or injuries that may appear? Does the offer from the insurance company address my pain and suffering, past and future wage loss, out of pocket and future expenses?

3. Monthly/weekly payment deals - If you are purchasing a membership or entering into any other agreement that requires you to make regular payments (i.e. rental property, vehicle lease, gym membership etc.) assume that you will have to pay for the full term of the agreement. If you stop making your payments, you should assume that they will be able to enforce payment.

Before you sign, ask yourself these questions: On what basis will the company let me out of the contract? Do I want to be committed? Can I afford to be committed?

4. Loans - If you are borrowing money you should assume that it is going to cost you significant interest. Make sure you understand the total cost of the loan in addition to the money that is being borrowed. Monthly payments or other payment plans can be very deceptive in terms of the overall cost. Know the facts.

Before you sign, ask yourself these questions: Do I understand the total cost of the loan? Can I afford the payments? What happens if I can’t afford the payments?

5. Termination of Employment - If you are settling a claim with your employer after termination and you are asked to sign a release, you should assume the deal will be binding.

Before you sign, ask yourself these questions: In addition to employment standards legislation, do I know my common law right to severance? Does the severance package take into consideration all forms of compensation? How fast can I find a new job?


The bottom line is simply this - if you do not want to be bound by the agreement, don’t sign. If you are unsure about whether you should sign a document, then it is critical that you seek legal advice before you do. There is a reason you are being asked to sign and it is more than just an acknowledgment of funds or an informal agreement. You should assume it is a binding contract, and yes, they are typically enforceable. However, just like many aspects of the law, there are some exceptions, such as contracts involving children. If you have signed a release, waiver or other agreement and you want to know if you can get around it, you should immediately seek legal advice.


*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

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About the Author

Keri Grenier is an experienced personal injury lawyer based at Murphy Battista LLP's Kelowna office. She also holds a B.A. in psychology. Her practice focuses on helping people who have been injured in motor vehicle accidents or due to the negligence of others.

In her column, Keri provides practical information about personal injury claims in a format that is simple and easy to understand.

Email: [email protected]

Website: http://www.murphybattista.com

Twitter:  http://twitter.com/KelownaLawyer

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet presents its columns "as is" and does not warrant the contents.

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