Trial required?

Photo: Thinkstock.com - Dorling Kindersley

“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.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.