Credibility is everything

Credibility is important in our world. But in a personal injury claim, it is everything.

The credibility I’m talking about shouldn’t be confused with the reputation you might have built over time in your spheres of influence. An excellent reputation in your community is certainly better than the alternative, but it gets you only so far.

You start from square one in a personal injury claim.

It’s more accurate to say that you start a few rungs below square one on the credibility ladder.

For many, ICBC is our trusted insurance company. For them, you must be trying to screw the system if you hire a lawyer instead of dealing directly with ICBC.

And associating with a lawyer isn’t necessarily helpful to your credibility.

How do you get yourself out of that credibility “hole” and build the credibility needed to achieve a fair outcome?

In my opinion, developed over more than two decades of prosecuting personal injury claims, the answer is raw, vulnerable honesty. Which is so much more than ensuring the words coming out of your mouth are true.

Hold anything back and your credibility will suffer just as harsh a destruction as if you are untruthful.

I meet with a boat load of injured victims with my offer of a free initial consultation.

During that initial consultation, I always ask how they were during the months or years leading up to (before) a crash. It’s an important question. 

Crash victims are compensated for the difference between whatever level of symptoms they had before a crash, and the new, increased or more frequent symptoms after a crash.

An assessment of the value of that difference cannot be made without knowing how things were before.

Considerable experience tells me that many will not be 100 per cent, completely honest with me. It’s not that they’re liars and cheats. It simply takes time, in a relationship, for trust to develop. They know me only by reputation. We’ve never met.

Fearing that pre-crash symptoms will be used unfairly against them, some fail to disclose those symptoms. Or they minimize their answers.

But then, with my further, probing questions, the truth often comes out.

It’s OK, I explain to them. Pre-crash symptoms can actually be helpful to a personal injury claim, providing a medical explanation for the development of much more significant symptoms after a crash.

What’s not OK is being anything less than completely forthright. Yes, there will be bits and pieces of information that will make your case more challenging. And sometimes those bits and pieces are huge, festering problems.

Your personal injury lawyer will be up for the challenge. But be less than completely forthright about those bits and pieces, or huge festering problems, and you’re flushing your claim down the toilet.

As for their indiscretion with me: it will never leave the room. And provided they learn from that and commit to be scrupulously forthright from then on, I will overlook it as a relationship building exercise.

It’s a tough lesson that requires a lot of coaching and reminding along the way. We learn, early on in our lives, to hold our cards close to our chest. Being scrupulously honest doesn’t get us far on the playground, in the classroom, and the world generally.

But in the context of a personal injury claim, it is critically important. Only you can tell us the full extent of your symptoms. Only you can tell us the full extent of how those symptoms impact on your day to day life.

Your family, co-workers and friends can support you, but so much about what they can say is based on what you have told them.

The same goes for your therapists and doctors.

Until some sort of pain scanner, or direct uplink from your brain, is invented, it is only through consistent, scrupulous honesty that the words coming out of your mouth will be given the full weight needed to achieve fair, financial compensation for your injuries and losses.


Is it really a speed trap?

Bring back photo radar? 

I made that suggestion at the end of my last column, which was about speed traps.

Heck of a use of the word “trap,” by the way. The word is suggestive of unfair surprise.

You’d have to be asleep at the wheel to be surprised by being more than 10 kilometres an hour over a clearly posted speed limit. Isn’t that the cut-off?

Nobody’s pulled over for “slipping” by a kilometre or two. Or three. Or five. Or eight. Heck of a “slip” to get all the way past 10.

The same cognitive distraction that allows “slipping” more than 10 kilometres over the clearly posted speed limit causes most crashes.

Please understand: I’m not saying that exceeding a posted speed limit is the problem. 

Speeding just makes crashes worse. Much worse. Speed does kill, it’s just not what causes most crashes.

Fifty per cent of the car crash cases I handle are when a distracted driver fails to process a road hazard that is plainly visible through the windshield.

Not a shockingly surprising road hazard. Simply the slowing and stopping of traffic. Yes, 50 per cent of car crashes I handle are where a driver crashes into the back of a stopped vehicle.

The “cash cow” success of speed traps is a clear indication of our horribly low level of awareness behind the wheel. It’s like a canary in the mine. If the canary dies, it’s likely unsafe down there.

If drivers have trouble keeping their vehicles within 10 km per hour of the speed limit, it’s unsafe out there.

No wonder ICBC liability insurance rates are so high.

If we could only raise the level of driver awareness. If we were to do so even up to the minimal level of keeping track of our speed, we would increase safety and decrease crashes.

How about more speed traps?

Behavioural change requires consistent reinforcement. Speed traps around every corner would provide that level of reinforcement.

But that would be prohibitively expensive. We already spend a boat load of money on policing. We need our police to be spending their days catching bad guys, not holding radar guns.

If only there were a less expensive alternative.

If only there was some sort of monitoring mechanism that would automatically deliver stinging consequences when the mind wanders enough that a posted speed limit is exceeded by more than 10 km/h.

Oh right, the mechanism exists. Photo radar!

Governments are resistant to doing what’s right when “what’s right” will get them voted out of office.

Come together, people. Let’s give our political leaders the strong message that bringing back photo radar will be good for votes instead of bad.

We didn't mean to speed

Do speed traps bug you?

It’s like shooting fish in a barrel, set up along the safest stretches of road with ridiculously low speed limits.

And along boring stretches of highway where a heavy foot causes your speed to creep up.

Cha ching, cha ching, cha ching. What a way to make your quota. Stupid money grab.

Earn your tickets! Go after aggressive drivers. They choose their dangerous driving behaviours, intentionally put our lives at risk.

We salute you when you pull over those hotheads. We smile, recognizing the hothead vehicle that had burned past us moments before, stopped at the side of the road by a ghost car.

Leave the rest of us alone. We didn’t intend to speed. We simply lost track.

Speed traps are especially unfair along those many Okanagan corridors where the speed limits are as fickle as bitcoin values. How can we be expected to keep track? It’s easy to miss all those speed changes.

We regularly wonder, with so many fluctuations, what the current speed is. And have to keep our eyes peeled for the next speed limit sign to get back on track.

The only guarantee against a speeding ticket is paying constant, direct attention to the roadway. You don’t expect that of us, do you?

Hmmmmm... Might that be the point?

Driving requires precious little technical skill. Ironically, that might be a cause of our road safety nightmare.

It’s too easy. So easy that we complain when our minds wander to the point of having trouble keeping track of the speed limit.

To miss a speed limit reduction, you’ve got to be so distracted that you miss both the “reduced speed ahead” warning as well as the new speed limit sign.

Can you guess the most common type of crash I handle in my legal practice?

It’s not aggressive drivers. Aggressive driver crashes are very, very few and far between. Not impaired drivers either.

It’s where traffic has come to a stop. It might be congestion, a traffic light, or simply a right turn situation where a vehicle is waiting to merge.

And moments later, an absent-minded driver crashes into the back of the stopped traffic.

That’s 50 per cent of the cases I handle.

Are you so tuned out that you have trouble keeping track of speed changes? You are a much bigger problem than the jerk burning past you on the highway.

Aggressive drivers are a problem, and must be stopped, but they are much safer than absent-minded motorists. At least they’re paying attention.

We’ve dumbed down driving to the point that we can get away with absent-minded “autopilot” most of the time. And the more we get away with it, the more complacent we become.

We are lulled into believing we’re driving safely because we make it from point A to point B. Again and again and again.

To the point that we crash into the backs of stopped vehicles.

The old days were different.

There was a natural mechanism that kept our brains on the task at hand: a standard transmission. To some (most?) of you, a standard transmission is about as foreign a concept as a rotary dial telephone.  

Back in the day, there was a stick coming out of the floor that you had to move around to keep your vehicle in an optimum gear. It was a natural mechanism that constantly pulled your brain back to the task at hand.

I bet we’d have an immediate reduction of crashes simply by mandating standard transmissions.

Returning to the rotary dial telephone would help too. A wandering brain is bad. A brain focused on a telephone discussion or texting exchange is even worse.

We’re not bad people. It’s easy to get bored. Our powerful minds wander easily. We need a mechanism to keep our attention where it belongs: constantly and vigilantly on the road ahead. 

I have a mechanism that I’ve written about before. I call it “doing the 10 and 2."

Very simply, keeping your hands at particular positions on the steering wheel requires conscious thought. When I notice my hands wandering to more comfortable positions like an arm rest or my lap, I am clued in to put my brain back where it belongs.

Prefer the “9 and 3” or “8 and 4”? Do your research and choose whatever you like. Make a conscious effort to stick to whatever you choose and it might work for you as well.

Let me know how it works for you.

And how about smiling, instead of grumbling, as you drive ticketless by the next “speed trap” you encounter. The only drivers they are trapping are the most dangerous drivers on the road, absent-minded ones who need to be snapped to attention.

Better yet, how about petitioning our government to bring back photo radar. What a waste of police resources to “speed trap” absent minded motorists when that can be done automatically.


Lying on your bed of nails

According to one internet source, the saying first appeared in a late 1500s Middle French proverb “comme on faist son lict, on le treuve” (“As one makes his/her bed, one finds it.”). 

Another source explains that back in the day, a permanent bed was a luxury, and most people had to stuff a sack with straw every night for use as a bed.

If you make a cruddy bed, you’re stuck with sleeping in a bed that’s cruddy.

It has it’s own ring of justice, doesn’t it?

Many injured victims hoping to achieve fair, financial compensation for their injuries and losses, have made an incredibly cruddy bed.

Avoiding the taxman is the most common “cruddy bed” problem I face.

According to Statistics Canada, underground economic activity for 2013 (the most recent statistic provided) totaled $45.6 billion.

How many servers, hair stylists, spa practitioners or strippers report their actual tips, rather than some much reduced industry standard that keeps them under the radar of the Canada Revenue Agency?

How many mechanics, construction workers, renovators and so many others fail to report cash jobs?

How many rich folks hide their money in off-shore accounts?

Our laws entitle injured victims to recover fair, financial compensation for their injuries and losses. That includes income losses based on previously unreported or underreported income.

Yes. It’s true. Does that sound unfair? 

Taking the extreme example of a marginalized worker who reports none of their income, should a stripper be stripped of his or her rights to income losses caused by a negligent driver who crashes into the back of his or her stopped vehicle?

But if the crash disables the stripper from ever working again, it’s not so easy as the stripper saying, “This is what I had been making in the years leading up to the crash”.

The onus is always on the injured victim to prove their case. Without a track record of reported income, it can be incredibly difficult to prove pre-crash earnings. Especially when those hiding from the tax man eliminate all traces of the unreported income.

And even if you manage to prove that pre-crash income, ICBC can very reasonably ask the question:

“You chose to lie to the Canada Revenue Agency to avoid tax, how do we know you’re not lying now about your injuries and how they are impacting on you?”

Fortunately, injured victims do not live in a vacuum. As much as they put on a brave face, crash injuries are hard to hide. Friends, neighbours, work colleagues, family members and others can independently prove many, if not most, cases.

But there can be much uglier beds.

You make an extra cruddy bed if you use your low reported income to collect welfare benefits.

Ick! It’s one thing failing to pay your fair share of taxes. It’s quite another to pick-pocket the hard earned income of those of us who do!

It gets worse.

Is there anything less palatable than a deadbeat dad?

Your ex comes after you for child support. The court process requires you to disclose your income through a sworn financial statement. You’ve done well hiding your income from the Canada Revenue Agency, so you carry on the charade with the court.

You end up having to pay lower child support.

But if a negligent driver takes away your ability to work, how do you get around that sworn financial disclosure?

Now, ICBC can ask:

“You lied to the court, before, to avoid child support. How do we know you’re not lying to the court, now?”

That’s a bed made of nails, pointy side up.

Have you been making a cruddy bed? Consider changing your ways. Karma can be a real bitch.

More Achieving Justice articles

About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
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Twitter:   twitter.com/Hergott_Law

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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