Five Myths about Personal Injury Law

There are so many preconceived notions and myths about personal injury law and about our rights when we’ve suffered an accident.

I think a lot of it has to do with sensational cases we read about south of the border (who doesn’t cheer for Matt Damon in The Rainmaker?), and the over-the-top marketing we see on behalf of some personal injury law firms.

But if you’re considering a personal injury suit, it’s important to know how things really work in the province of Ontario.

Personal Injury Law Myth #1: Big Dramatic Trials Are Normal

This couldn’t be farther from the truth! In fact, most cases don’t go to trial at all. Both your lawyer and the defense lawyers (generally representing the insurance company) work to resolve a case before it goes to trial and the sooner the better.

Most cases are resolved at some stage before a trial, and at which stage depends on all sorts of things. For example, if your case is obvious, you might be able to resolve with the adjustor before it even goes to a defense lawyer.

Often cases will settle after an examination for discovery or, if they don’t settle, will go to private mediation. Then there are pre-trials where a judge who is not the presiding judge will offer an unbiased opinion before it goes to trial.

90-95% resolve and only 10% make it to full blown trial. Cases resolve short of trial because parties want certainty and a trial is anything but certain

John Grisham style drama belongs within the pages of a book; it rarely bleeds into real life cases and that’s a good thing.

Personal Injury Law Myth #2: You ‘WIN’ your case

Ontario’s legal system does not resemble The People’s Court where Judge Milian vocally rewards the winner while smacking down the loser.

With personal injury law in Ontario, it’s a negotiation. You can have a successful negotiation that you can classify as a win, but to look at it like a winner or loser doesn’t really work because, with a negotiation, it’s not about convincing anyone that you’re right and they’re wrong or the other way around. It’s about establishing how much compensation you should receive based on certain criteria.

And furthermore, big Erin Brockovich style payouts are terribly rare.

If you’re working with an experienced personal injury lawyer, he or she will have a sense of whether an offer is fair based on their experience. We can generally guess what ranges of compensation would be awarded to you at trial but it varies on a case by case basis depending on how credible and forthright you’re perceived to be.

Juries can be swayed by things like personality and trust so every case is different, but again, massive payouts that go outside the norm are rare. I’m not saying they never happen or that we shouldn’t fight for them, for example, I personally believe that wrongful death payouts should be far higher and always work towards that for my clients, but I am recommending that clients be realistic with their expectations.

Personal Injury Law Myth #3: You Don’t Pay Unless You Win

You have to be aware of the kind of agreement you signed at the outset.

You see, disbursements (expenses) are generally covered by the lawyer throughout the case. At the end, when the case is resolved, that money is paid back to the lawyer and the fee is separate.

Luckily it’s rare that a case fails to resolve. If that does happen, some lawyers may expect you to pay them back for disbursements, while others may let it go.

If you lose a case where there’s no recovery i.e. no money is awarded, you need to find out if you’re still responsible for the disbursements.

I always recommend that clients have the money conversation before they retain a lawyer and keep having it until they’re 100% clear on what the lawyer’s policies are.

Personal Injury Law Myth #4: Insurance Companies Are The Big Bad Wolf

Reality check: Most of the frontline people who work for insurance companies and who handle your file have a boss to whom they must answer and a boss’ boss. They simply don’t have the power to write a cheque because you ask them to.

There are laws in Ontario that must be followed, and things that must be established to get compensation.

I know it can feel frustrating, but it’s not a personal vendetta against you. They have lots of files in front of them, and they want to know that what they’re paying out is in the range of what is necessary for you to recover and empower the next phase of your life. They want to make sure they don’t over pay you and you want to make sure they don’t under pay you.

Again we come back to the negotiation aspect. You don’t have to agree with your insurance company, but it helps to understand their position so that we can present a compromise that gets your case resolved.

Insurance companies are not the enemy, and you do have to deal with them. Luckily there is a process on both sides that must be followed.

Personal Injury Law Myth #5: Personal Injury Lawyers Are Ambulance Chasers

First of all, ambulance chasing is illegal in Ontario.

However, in the past 20 years, the Law Society of Upper Canada that governs lawyer behavior has relaxed its stance on advertising which is why you can’t walk five metres in this city without running into a personal injury lawyer billboard.

But still, the idea that lawyers are waiting to make a buck off you is simply untrue.

It’s a service that is important once you need it – when you’re injured due to someone else’s negligence. Because most personal injury lawyers don’t charge up front, we make justice accessible to those who otherwise would not have it.

We see a lot of debates happening around whether or not we should allow so much advertising to which I say that healthy competition is a good thing. I think we have a long way to go before aggressive marketing tactics reach ‘ambulance chasing’ proportions.

As long as regulations are followed and the lawyers themselves act ethically, then I see no problem with it.