When choosing a personal injury lawyer, you may well be tempted to select the lawyer who promises to get you the most amount of money in the least amount of time. Resist your temptation to make your choice in that manner, as you will surely be disappointed at the end of the day.
The two most common questions I am asked by potential new personal injury clients (and my answers) are:
1. How much money is my case worth? (I don’t know).
2. How long will it take until we settle? (I don’t know).
You may advise me that another lawyer (or worse, your friend who had his own personal injury case) told you your case was worth a particular amount, and want to know if I will get you that or more. I will tell you, without knowing any of the facts, that the other lawyer (or your friend) is wrong. This is simply because at the initial client interview it is impossible to know. And you should be wary of any lawyer prepared to answer those questions with any certainty.
I will only know at the beginning of your case what you tell me. I will not have heard the position of the other party you wish to sue. I will not have reviewed your medical history. I will not have had the benefit of reviewing your income tax returns or other supporting basis. What you tell me is less important than what the actual documents prove.
There are many factors that go into determining the value of a personal injury case. Assessing damages in a personal injury case is more art than science; oftentimes it appears to be abstract art at that.
Here are just some of the factors at play in determining the value of your lawsuit:
(a) The nature and extent of your injuries. Under the Insurance Act in Ontario, not all injuries are compensable. The law expects that some injuries, or some level of pain, is something you will simply have to live with and for which nobody has to compensate you. Recent case law from the Superior Court of Justice indicates that the extent your injuries must rise to in order for you to be compensated is on an upward trend. This is good news for insurers, but bad news for you when you show up at my office and think your sore neck and back pain is worth six figures.
(b) What your own medical practitioners write in their notes about your injuries. For example, you may feel constant pain, but your family doctor may use words such as “minor” in her clinical notes. This will definitely hurt your case. Sadly, soft tissue injuries that cause real pain do not show up on diagnostic imaging or other objective tests.
(c) How often you attend for treatment. Many of my clients stop going to doctors and rehab clinics after a few months either because (i) the treatments are no longer effective; (ii) they simply do not have time: or (iii) they can no longer afford to cover the out of pocket cost of non-OHIP covered treatments, such as physio and massage therapy. Your failure to continue treatments for whatever reason may impact what an insurer has to pay at a later stage in the proceeding.
(d) If you are claiming lost income, the amounts on which you filed and paid tax in previous years. This is especially acute if you are in the service industry, as a large portion of your real income is derived from tips, yet your income tax returns rarely reflect this; similarly with self-employed small business owners whose true income loss is significantly more than would appear from the pre-accident income tax returns.
(e) The statutory deductible. The Insurance Act mandates that if your personal injury case arises from a car accident (as opposed to a slip and fall), the first $30,000 in damages for pain and suffering is deductible. This deductible is actually increased for accidents after August 1, 2015 to approximately $36,500. This means simply that the insurance company does not have to pay any amounts up to the deductible. Since the majority of soft tissue injury cases are worth less than $75,000 for the pain and suffering component, you can see how this deductible has a very real impact, often to the point of deserving parties obtaining nothing more than a negligible amount.
(f) Your own evidence at examination for discovery or trial or in statements given to doctors or insurers. What you tell me is less important that you eventually state “on the record”.
Also keep in mind that what you think of as the value of the case is your net in pocket, versus the actual value. Lawyers who will try to tell you what your case is worth often neglect to advise that this is a top line amount, without mentioning the deductible. Most importantly, from whatever amount the insurer pays, legal fees of about 30-35% (plus HST) will be deducted by your lawyer. In addition, disbursements incurred by your lawyer are over and above the fees. Disbursements are those amounts I pay out of pocket to third parties in order to advance your lawsuit (court filing fees, medical records/reports, transcripts, mediation fees, to note just some examples). It is not unusual for me to incur several thousand dollars for a case worth only $20,000.
Then there is what I call the wildcards. These have nothing to do with your injuries or the law.
1. The insurance company we are suing. Some insurance companies have taken a very hard line on all cases where the injuries are only soft tissue and/or which do not have significant provable lost income attributable to the injuries. One such insurer regularly states to plaintiff counsel that they will pay their defence lawyers $100,000 before they will pay the injured plaintiff $10,000. They have been successfully following through with this threat for several years now. The days of insurers paying a little to save a lot are gone.
2. The particular adjuster who is responsible for deciding how to handle the file. Even those insurance companies which are settlement minded employ certain adjusters who have a mindset that they would rather force us to the door of the courthouse.
As for the length of time, no matter how fast my office works to move your case forward, I may be stymied by the bureaucracy of a large insurance company, their lawyer’s schedule, and the inherent systemic delays of our court system. Thus, while cases can settle in as little as 6-12 months, or drag on for 8-10 years, most fall anywhere in between. The reality is that there are many factors at play, including those noted above.
For all those reasons, you can understand why it is almost impossible to give you an accurate picture of how your case will shake out when we first meet. As such, resist the urge to hire the lawyer who promises the largest payout. Instead, make sure your lawyer seems like he or she will empathize with your situation while also having the experience to give you the right advice at the right time.
Another factor to consider in hiring a personal injury lawyer is to make sure the lawyer is actually experienced in the area. I know of numerous family and real estate lawyers who will dabble by taking the occasional personal injury case. These individuals lack the requisite knowledge to properly assess your case, the experience to manage your case in an appropriate matter, and most importantly, the business relationships with insurance adjusters and lawyers to get cases settled.
One final piece of advice if you are planning on hiring me or another personal injury lawyer: be prepared to listen to our advice. It may not accord with what you want to hear or think is fair and just. But by making the wise choice in the lawyer you hire, the advice you will receive will be the best your money can buy.