The timing of a personal injury lawsuit is difficult to predict. It depends on many things, including actions the Defendant takes, Court schedules and decisions the client makes. A lawsuit can take between one to five years or longer to settle or go to Trial.
Regardless of how long they take, most personal injury lawsuits go through the same basic steps, although not always in the same order. Some lawsuits skip some steps and in other cases some steps are repeated many times over.
The steps listed here are the main steps that occur in a personal injury lawsuit and will give you a general idea of what to expect.
Gathering the Facts
With our client’s help, we gather all the available facts concerning the claim, including collecting records, interviewing and taking statements from witnesses. We sometimes hire investigators or experts to help us, so this step can involve expenses. Before the decision is made to commence a lawsuit we like to be satisfied that we can prove the facts needed to establish our client’s case. In some cases we are not able to gather all of the facts in advance and a lawsuit made be necessary to get access to information that is only available to the party we sue. In this kind of case, the lawsuit is part of the investigation. The investigation of a case never really ends as the more information we gather the stronger the case we can present. As new information is gathered it may become necessary to expand our investigation or re-asses the merits of the claim.
Starting the Lawsuit
We begin the lawsuit by preparing the necessary documents and filing them in Court. This means the Court date stamps all copies of the documents, keeping one copy for their official record. We then deliver filed copies to the Defendant’s lawyers. This step also involves expenses, such as Court filing fees.
Interim Motions
After we start a lawsuit, but before Trial, we or the opposing lawyers sometimes need to ask the Court to decide certain things. Going to Court to ask the court to make a decision is called a Motion. These Motions are usually about how the lawsuit should be handled. For example, we might ask the Court to order that the Defendant show us a particular letter or document that the Defendant would rather not let us see. Motions are usually not needed in most cases as the lawyers can agree on these kinds of issues.
Examination for Discovery
After gathering the facts and starting the lawsuit, either we or the Defendant’s lawyers arrange an Examination for Discovery. At the Examination for Discovery, we question the Defendant under oath about the facts of the case in order to find out what the defence to the claim is. We also ask the Defendant to show us what relevant documents the Defendant has, and to tell us about all relevant documents he or she has ever owned or had access to. In return, the Defendant’s lawyer also questions our client. We give the Defendant copies of the documents we have that relate to the lawsuit and our client describes all relevant documents he or she once had, or had access to. The Defendant’s lawyer also asks question about the facts of the case as known to the Plaintiff in order to find out the evidence in support of the claim.
Review of the Law & Facts
After Discoveries, we review the law and apply it to the facts which are now fully known. We usually hire experts to help us in our assessment of the case. Experts provide opinions on liability and damages. We then give our client our legal opinion about what the likely outcome of a Trial would be.
Mediation
In Ottawa, we are subject to a Case Management System either before or after the Examinations for Discovery. Mediation takes place before a third party Mediator. Mediation is an opportunity to explore settlement prospects before proceeding with the cost and uncertainty of a trial. A large percentage of lawsuits are settled at mediation. A settlement is an agreement between the parties to a lawsuit which sets out how they will resolve the claim. If the claim is settled, it does not go to Trial.
Negotiation and Settlement
If mediation does not result in a settlement we can continue to talk with the Defendant’s lawyers to see if we can find a way to settle the claim. A settlement is an agreement between the parties to a lawsuit which sets out how they will resolve the claim. If the claim is settled, it does not go to Trial.
Preparation for Trial
We prepare the case for Trial, including getting all the necessary documents together, arranging for witnesses to attend and preparing any legal opinions.
Pre-Trial
In Ottawa, the court requires at least one pre-trial with a judge before the parties proceed to trial. A pre-trial is different from mediation because the presiding judge advises the parties of his or her view of the case. The pre-trial judge will help the parties negotiate based on the judge’s opinion of what the value of the case is. Knowing what a judge’s views are can help the parties overcome difficult areas of disagreement. Pre-trials are one more opportunity to explore settlement prospects before proceeding with the trial. Most lawsuits settle at a pre-trial.
Trial
We act for our client at the Trial. When the Judge has decided the case, which could be a few days or weeks after the Trial, we prepare the Court Order for the Judge to sign, or approve how the other lawyers write up the Judgment to make sure it is correct.
Completing the Claim
We do all the work necessary to complete the claim. This includes giving our client money from a settlement or Judgment, after we have deducted our fees and expenses. However, it does not include starting new steps, such as enforcing or appealing a Court Judgment. To enforce a Judgment means to start proceedings to force the Defendant to actually pay what he or she has been ordered to pay. To appeal a Judgment means to start work to get a higher Court to change the original Court’s Judgment.
This blog post was written by Edward (Ted) Masters, a member of the Personal Injury team. He can be reached at 613-566-2064 or at [email protected].
