In pre-litigation and during litigation, when can a personal injury file be settled?
In reality, providing the injuries and affects of those injuries on a person’s life are known, all personal claims can be settled without going to Court.
While it is important to always be ready and prepared for the possibility your file will proceed to a trial, our personal injury lawyers will always consider ways to resolve your case in advance of court if possible. Litigation is stressful, time consuming, risky and can be a very emotional experience.
Settlement with the Insurance Adjuster
In many cases, there will be insurance covering the losses claimed. The insurance company will appoint an insurance adjuster to adjust the file and sometimes an insurance defence lawyer will be assigned the file. After the adjuster reviews the file, assesses liability and damages issues, they may be open to settlement prior to litigation being commenced. Reaching settlement at the adjusting phase occurs fairly regularly.
If settlement is not possible at the adjuster stage, litigation will need to be commenced. In the litigation context, there are a few steps during which it may be possible to settle your court action.
Defence Lawyer Review
In some cases, after the defence lawyer has reviewed the file, they may recommend settlement to the insurance company. This happens infrequently in our experience, but it is possible and sometimes happens.
After Examinations for Discovery
Examinations for discovery is a step in the litigation process where all parties meet at an official examiner’s office and can ask the opposing parties questions about the court case. It is an important step that allows everyone involved to gain a better understanding about all aspects of the case. Often, after examinations for discovery are completed, it affords the lawyers and parties an opportunity to have a frank discussion about the value of the claim and discuss settlement. In some cases, court actions are settled at this stage.
In many jurisdictions, the Rules of the Court mandate that parties must attend a mediation to canvass settlement. In our experience, at least half of all cases are settled with the assistance of a trained and experienced mediator.
If the court action is not settled at mediation, the parties will attend a pre-trial conference and an experienced judge will assist the parties in reaching a settlement if possible. Many cases are settled at this stage.
Eve of Trial
After preparing for trial, the parties and the lawyers have a very detailed understanding of the case, the issues in the case, the fair value of the case and the risks involved in proceeding to trial. It is not unusual for the parties to discuss settlement immediately prior to a trial commencing and reach a settlement avoiding the risks associated with a trial.
Offers to Settle
At any stage of the litigation process, parties can exchange formal offers to settle. Offers to settle are important and helps the parties put their mind to settlement. The Rules of Civil Procedure and judges highly encourage exchanging offers to settle.
Our lawyers take every opportunity available to settle files. Avoiding the risks and stress of trials is something most of our clients appreciate. If a fair settlement is possible, it is often a better option to settle and avoid the possibility of a negative outcome after a lengthy trial.
Ottawa Injury Lawyers
Marc N. Quinn