A lot of people have seen lawsuits on television shows and movies, but when it comes time to deal with a lawsuit of their own, they realize they have no idea how a lawsuit works and the whole idea can be stressful and intimidating.
The first thing to realize is that the legal system is nothing like television shows and movies. Much like all other professions frequented by screenwriters, like doctors, politics, and emergency services (police, fire and ambulance) the reality is much less exciting than you would think and involves much more paperwork. There are very rarely movie moments where a carefully crafted line of questioning exposes an entire case before a packed courtroom and it’s even rarer that a defendant reveals their guilt because they lose control of their emotions and go on an anger driven soliloquy.
For our clients who wish to have a better understanding of how a personal injury claim works, we’ve written the following blog post so they can get a realistic idea of what to expect.
Reporting the Claim
The first step of a personal injury claim is reporting the claim to the person or business whose negligence caused your injury. The person or business (known as the Tortfeasor) will report the accident to their insurance company. Keep in mind that if your accident happened on municipal property there could be special reporting timelines that apply, and you should contact an experienced personal injury lawyer to discuss your claim.
You usually do not have to start a lawsuit until two years from the date of the accident and, if your injuries and losses have ended before the two years elapses, you can settle your claim directly with the adjuster of the insurance company.
If your injuries or losses are ongoing, or the insurance company isn’t offering you a fair settlement, you can begin the lawsuit process.
Notice of Civil Claim
Plaintiff’s initiate lawsuits in the Supreme Court of British Columbia by filing a Notice of Civil Claim (or a NOCC) with the Supreme Court Registry. Your Notice of Civil lays out the nature of your claim and the underlying legal basis.
There are other avenues to bring claims in British Columbia, such as the Provincial Court or the Civil Resolution Tribunal, but these avenues have limits on the damages that are recoverable and do not have an automatic right of Discovery, which we will discuss below.
Once you file your Notice of Civil Claim with the registry, you have 12 months to serve it on the defendant(s). If the defendant is a person they need to be served in person (i.e.: handed a copy of the Notice of Civil Claim in person) or if the defendant is a business you can serve them at their registered records office.
Response to Civil Claim
Once a defendant is served with your Notice of Civil Claim, they have 30 days to file their Response to Civil Claim (RTCC). The Response to Civil Claim is meant to include a response to the facts laid out in the Notice of Civil Claim, as well as a response to the legal basis of the claim and any legal defenses the defendant(s) wish to rely on.
Lists of Documents & the Implied Undertaking
Both parties are required to file what is called a List of Documents. The Lists of Documents are supposed to include a listing of every document in a party’s possession that is relevant to the lawsuit. If a party has documents over which they want to assert a claim of privilege, they are still required to list the documents, but can list them in the privileged section of the list of documents. While all documents must be listed, whether privileged or not, privileged documents do not need to be produced in a lawsuit unless the party asserting privilege decides to do so. Non-privileged documents must be produced to the other party, even if you would prefer they are not.
Many people get concerned with producing information and documentation in a personal injury lawsuit as many of the documents contain very personal medical information. In order to address this lawsuit are governed by what is called the Implied Undertaking of Confidentiality. The Implied Undertaking of Confidentiality stands for the proposition that any information and/or documentation produced in a lawsuit cannot be used for any purposes outside of that lawsuit without an Order of the Court. The Implied Undertaking of Confidentiality is taken very seriously and even if there were two separate lawsuits about the exact same accident, involving the same parties, you would still need an Order of the Court to share documents between the two actions. This is to ensure that parties in a lawsuit feel comfortable disclosing their personal information without fear of it being disseminated to the public.
Examination for Discovery
Each party has the right to examine the other under oath. This is called an examination for discovery. At an examination for discovery the party to be examined is sworn or affirmed to tell the truth (that part is like the television shows and movies). Then the questioning party’s lawyer can ask that party any questions relating to the lawsuit. The examining lawyer can also make requests for the production of relevant documents and information.
While the primary purpose of an examination for discovery is to allow the party adverse in interest to gather (or discover) information, it also provides the opposing lawyer the chance to see how the other party will stand up under questioning and how they would present as a witness at trial. Right or wrong, at the end of the day sometimes a case can be made (or lost) on how well a witness will do on the stand.
Independent Medical Examinations
A party can request that someone claiming injury submit to an independent medical examiner (or IME) with a medical specialist of their choice. It is not enough to simply go before a Court and tell a judge that you’ve been injured, there needs to be medical evidence supporting your injuries and their effects. Just as a Plaintiff’s are entitled to call medical evidence of their choosing, defendants are allowed independent medical examinations to gather evidence of their own.
Settlement or Trial
A trial date is usually set within a few years of a personal injury lawsuit being initiated. Even if a plaintiff is not healed by the date of the trial, this is the time for settlement of a claim or, if settlement isn’t possible for the trial.
Settlement can be achieved by direct negotiations between the parties or with the assistance of outside individuals like a mediator. The benefit of settlement is that you know what you’re getting before closing off your lawsuit and you have a say in how things end.
If you cannot reach a settlement, then you must proceed to trial. At trial both sides present their evidence and then make their arguments to the judge or jury. The jury will reach a verdict relatively quickly. While judges can make decisions from the bench right after a trial, some judges take from 6 to 12 months to render a verdict. The downside of a trial verdict is the outcome is in the hands of a judge or jury and you might not like the outcome. Sometimes judges and juries give verdicts higher than what can be achieved in some settlements. It all depends on the case.
Every Case is Different
The aforementioned information is a brief overview and isn’t a guide to your particular case. Every case is unique and is dependent on those particular facts and parties.
If you have a personal injury case contact the experienced personal injury lawyers at Taylor & Blair LLP for a free case assessment today. There are strict time limits that apply to all claims.