Personal injury cases resolve one of three ways. They are either settled in Court following a trial; settled before or during a trial; or prior to litigation being commenced. Out of court settlements refers to settlements obtained without any litigation necessary. Most cases settle on a out of court settlement basis. It is uncommon for personal injury cases to reach trial. Based on most statistics, only 5% of ALL cases filed in Court actually reach trial; most (95%) are resolved prior to trial.
If litigation is necessary, cases settle at either the end of the exchange of pleading (documents starting the court matter and the defences) stage, mediation stage or settlement conference stage. Litigation involves parties who are unable to settle the case without litigation. This happens for many reasons: either the compensation sought is too high, the injuries are too serious, the injuries are ongoing and not fully known, there is a dispute over responsibility for the accident (i.e. legal liability) or the quantum of damages claimed.
If the person responsible is not willing to settle, there are really two options left: A. Walk away from the claim or B. Commence legal action against the responsible party or parties. The hope with filing a personal injury action is to obtain fair compensation. After an action is commenced, there is hope for settlement; after hearing the facts, receiving documentation supporting the allegations of negligence and supporting the damages claimed, the responsible party may acknowledge fault for settlement purposes and offer a suitable amount of compensation to settle the case.
Why would someone settle only after an action is commenced? There are various reasons and the most common is simply a difference in views on legal responsibility or a strategy being employed in that they wait to see if the injured person will actually follow through and commence a court action. With litigation, there is risk for everyone involved. The general rule is that the losing party must pay their own legal expenses AND also the legal expenses of the winning party. Litigation tends to include complex legal procedures and law that can also result in unpredictable results which makes settlement the better option for all involved.
At Quinn Thiele Mineault Grodzki LLP, we will litigate any case if necessary. We have experience in litigation and WILL NOT BACK DOWN. However, we ALWAYS encourage pursuing settlement because of the risks and stress involved in litigation. The most important reason behind attempting settlement is that the parties will finally dispose of the issues. We always try to have the parties acknowledge that the matter should be resolved without a trial. In the end, no party to litigation wishes to incur unnecessary legal expense and deal with the stress associated with the court process.
The process of obtaining a personal injury settlement is not as easy a process as it appears to be. The injured person must prove several elements of their case. They include:
1. They were, in fact, injured;
2. They were injured due to someone else’s act or omission;
3. There existed a duty for the responsible person to act or omit to act;
4. The act or omission was the direct or foreseeable cause of the injury;
5. The injuries must be proven by reliable and admissible medical evidence;
6. The alleged negligence must be proven by reliable and admissible evidence, usually by direct evidence of witnesses and sometimes by a mix of lay witness evidence and expert evidence in complicated personal injury cases;
7. The expenses, damages and losses must be proven by reliable and admissible evidence such as health care providers, actuaries, accountants, other professionals and experts;
8. All of the above must be proven by facts and solid reliable admissible evidence;
9. The amount of the claims for compensation must be based on acceptable and proper evaluations, opinions and estimations demonstrating, in a reliable way, the quantum of the claims; and of course,
10. Professional legal advice is needed to assess and opine on all of the above.
Any case can be settled without a lawyer. However, a personal injury lawyer can provide vital legal advice in every aspect of the case and, our experience is, that settlements obtained are much higher with the assistance of a personal injury lawyer. The guidance of a personal injury lawyer is very important in many aspects. Advice on the list above for instance. A personal injury lawyer can encourage and negotiate a settlement on an injured person’s behalf at any stage of the process. A personal injury lawyer can compensate for the injured persons’s inexperience in legal matters and lack of legal knowledge and information.
A personal injury lawyer can assess and assist in obtaining the needed facts and evidence to make a stronger case for settlement and trial. Examples are (a) obtaining the right medical evidence such as clinical notes and records, independent test results, medical legal reports and finding reliable and fair medical experts to provide professional opinions; (b) documenting the incident with authorities; (c) filing claims;. (d) obtaining witness statements; (e) obtaining photographs of the scene of the accident and injuries; (f) assessing income and other special losses; (g) assessing the full extent and severity of the injuries and impact of the physical, mental and psychological injuries on the client’s life; (h) assessing the value of the compensation and various damages based on case law (I) assessing any other evidence needed to present a favourable case for settlement and, if needed, court appearances and eventually trial.
The content of this article is provided for informational and educational purposes only and is not intended to be comprehensive legal advice. This article is a summary only.