For most of our clients, suing after an injury is the first time they have dealt with the court system. Many hesitate to pursue a legitimate claim because of the potential hassle or because of a fear of having to testify in court. The purpose of this article is to give a simple, no-nonsense guide into what you can expect if you decide to pursue your personal injury claim.
Before the Claim
The litigation process can begin within days after the accident happened. Often, insurance companies will call to try and settle your claim early in order to stop the litigation process in its infancy. While you are fully entitled to settle your claim on your own, they are negotiating from a position of strength, as they are knowledgeable and experienced in handling insurance claims, and may offer you substantially less than what you may be entitled to. If an offer has been made to you, and you are unsure how to proceed, seeking legal assistance may be the right choice for you.
If you decide to call Kubitz & Company, we may bring you in for an interview, where we will discuss the accident, your injuries, and answer any questions you might have. At that point, and if the firm agrees, you can retain us to represent you for your claim. You will not have to deal with the insurance company asking you to settle any longer, as we will be the ones dealing with them from that point forward. If and when a lawyer is retained to represent the interests of the insurance company, we will be the first point of contact for them as well.
This may be of comfort to you – at this point, the firm will do most of the work for you. Your job will be to pursue any treatment options such as physiotherapy, chiropractic treatment, or massage therapy through your Section B entitlement (Section B Article) or your own extended health insurance. It is crucial that you keep in touch with your family doctor, who can monitor and guide you through you treatment process, and document your recovery along the way. We will also need you to keep us informed about if and how your injuries have impacted your personal life, your ability to work and do household tasks, and the expenses you’ve incurred to treat or manage your injuries.
Typically, if you are involved in a motor vehicle claim, you have up to two years in order to start a lawsuit. This is called a “limitation period”. After that point, you will be barred from starting a claim or negotiating a settlement at all. There are some exceptions which may extend the two years, and if asked, we may be able to tell if any apply to you.
As you continue the recovery process in the two years following the collision, you may find that you are recovering well from your injuries, and you are now back to your pre-accident health in less than two years. If that happens, the firm can bring its full knowledge and experience to bear to settle your claim at that point. If it does not, keep in mind that the settlement step can take place anywhere along the way.
The Claims Process
If you decide to file a claim, you are required to file a court document called a “Statement of Claim” prior to the limitation period. This document describes the incident that caused your injuries, and lists the injuries you suffered as a result. If the claim is filed with the court, then it has officially commenced your court action. The document is then required to be served on the person or persons that caused the accident.
Don’t worry! You still are not required to be in court yet (or maybe at all)! The Statement of Claim is filed simply to preserve your rights. There is still a long way to go before you would be involved with the court in person.
The firm will do a lot of “behind the scenes” work for you by investigating the collision, gathering records and other information, and determining how best to resolve your claim. In the meantime, your responsibilities are to take care of yourself. Do whatever you need to do to get better! For some, that means getting back to work. For others, it might mean seeing the physiotherapist for another round of treatment. You may also need to meet with us periodically to fill out forms, provide updates as to your condition, or discuss strategy.
The first time you might be directly involved in the legal process is during a step called “Questioning”. Keep in mind that at this point, the insurance company does not know you. To them, you may simply be a file and a handful of papers. The Questioning step is their first (and sometimes only) opportunity to meet you, speak with you, and ask you questions about what happened in the accident, and how it affected you. Don’t worry! We will be there with you every step of the way.
Prior to the Questioning day, we will meet with you and discuss the process, provide you with some reading material, and answer any questions so that you can walk in fully confident and knowledgeable about what to expect. We will also be present with you to ensure the Questioning goes smoothly. The Questioning typically takes place in a boardroom or an interview room in an office. You won’t have to step into a witness box at the courthouse. Questioning will typically take several hours to a full day. Depending on how complex your claim may be, it may take place over a couple of days. However, we will try our best to work around your schedule and your needs in order to minimize the disruption to your daily routine.
After the Questioning, the lawyer on the other side will have a better idea of your claim, having spoken to you directly. They will then be able to look closer at your claim and valuate it based on the information they obtained. Claims can often settle at that point. See? You still haven’t seen the inside of a courthouse!
If there are still disputes to be resolved, you may be sent to an assessment with an expert witness. This expert’s purpose is to give an independent, unbiased opinion within their area of expertise. For example, you may be sent to a doctor who specializes in shoulder injuries if the severity of your shoulder injury is in question. A report may be produced discussing your injuries; how they might progress in the long term, and how best to treat them. This would take place at the doctor’s offices. Sometimes, expert consultations may be done in your home, so that the expert may assess what additional assistance you may need. For example, if you suffered a leg injury and have difficulty navigating stairs, your needs in a multi-level home must be taken into consideration. Depending on your claim, several experts may be involved. Again, we will do what we can to minimize the inconvenience to you.
Some claims may need a bit of a push to get things resolved. One way to do that is through the mediation or judicial dispute resolution (JDR) process. The goal of the mediation or JDR is to bring everyone together in the same room at the same time to try and hammer out the differences and reach a mutually beneficial agreement. Similar to Questioning, this process typically takes place in a boardroom. On the day of the event, we will be present with you. A lawyer and a representative from the insurance company will be there to represent their interests.
There will be a private mediator or a judge present, whose job is to moderate the conversation and facilitate a resolution by pointing out the strengths and weaknesses of each side’s claim in order to bring them closer together. The mediation will typically take place over several hours, and will hopefully result in an agreement with which both sides will be happy. Again, prior to the mediation, we will meet with you to discuss the process in depth, as well as some of the stronger and weaker points of your claim.
Overall, the only responsibilities you will have with any claim are to
- ensure we are up to date on your condition, your treatments, and the impact your injuries have had on your work, schooling, housekeeping, and your recreational pursuits;
- keep us apprised and provide us with ongoing proof of expenses you’ve incurred in order to recuperate and maintain your home;
- attend any treatments and tests that your doctors recommend in order to recuperate;
- attend periodic appointments and meetings with us as the claim progresses;
We will handle everything else for you “behind the scenes”.
As for trial? The trial process has deliberately been omitted from this article. More than 99% of claims will resolve without a claimant ever setting foot inside a courthouse or having to testify in court.
Hopefully this article has eased your mind about litigating your claim. If you have a claim, and would like to retain legal representation, the lawyers here at Kubitz & Company will assist you every step of the way to ensure your claim is resolved in a fair, efficient way. Please click on the link below to see the entire process at a glance.
Article by Ryan P. Lee, a personal injury lawyer in Calgary, Alberta