ANATOMY OF A PERSONAL INJURY CASE
The following describes a general framework, or 'anatomy' of
the conduct of a personal injury file which we hope will assist
our clients in understanding the context of any particular step
taken during the conduct of their personal injury claim. A
personal injury claim usually proceeds in the following order,
naturally with some overlap
Interview/Retainer
Investigation
Pleadings
Discovery
Pre-trial
Trial
Report and Billing
1.INTERVIEW/RETAINER
It is important that an injured party retain a lawyer as soon
as possible after suffering an injury. We will certainly attend
outside the office to review a matter with an injured party or
their family. Evidence, such as statements and photographs,
should be gathered as soon as possible after the incident. At
this interview stage we prepare a detailed interview memorandum
for future use.
2. INVESTIGATION
Early and complete investigation is the key to many cases but
especially slip and fall incidents. A properly instructed and
experienced private investigator can obtain invaluable
photographs and statements. At this stage we also generally order
police reports, hospital records and medical reports to
substantiate the claim. We also usually do some preliminary legal
research to assist in framing the case in law.
3. PLEADINGS
A court action is commenced by issuing from the court office a
Statement of Claim which sets out the facts of your claim against
the at-fault party (the defendant). For motor vehicle accidents,
the Statement of Claim must be issued within two years after the
date of the accident, and preferably quite a bit earlier. There
are other important limitation periods for other types of
accidents or injuries, the most notable being the requirement to
notify a municipality within seven days after a slip on ice and
snow. Once the claim has been issued, the other party will
deliver a Statement of Defence giving some idea of how they
intend to resist the claim.
4. DISCOVERY
After or even at the same time as the exchange of pleadings,
the parties can exchange lists of the documents on which they
rely by way of an affidavit of documents. The parties are then
entitled to examine one representative of each party under oath
and a transcript is taken of that examination which can be used
later at trial if the party tries to say something different.
Examinations for discovery are also an opportunity to assess the
credibility of the other parties and an opportunity for the
lawyers to meet with a view to negotiating a settlement.
5. PRE-TRIAL
The rules of court now require a pre-trial for all cases. Both
parties prepare a short brief that sets up their claim at its
best. Usually a judge conducts the pre-trial and tries to give
the parties an idea of how the case will be handled if that judge
actually did the trial (which he cannot), so that the parties
have some idea of their odds at trial. The judge of course tries
to get the parties to settle the matter at this stage.
6. TRIAL
The trial date is usually set at the pre-trial. Civil trials
can proceed before a judge alone or by a jury trial. At the end
of the trial, a Judgment is issued by the court either ordering
the defendants to pay the claim and costs or dismissing the claim
with costs.
7. REPORT AND BILLING
Our fees are based mainly on time spent but will increase or
decrease on the basis of a "success factor" of up to
25% of the hourly rate. In a personal injury matter, your fees
generally amount to between 20% and 30% of the claim. When
judgment is made against the defendant for the claim "and
costs" the said costs usually cover up to 15% of the claim.
For example, a judgment for the plaintiff for $100,000.00 "and
costs" will result in a contribution by the defendant to the
lawyer's bill in an amount of $15,000.00 leaving the plaintiff
with a net judgment amount of $85,000.00 after payment of the
plaintiff's own $15,000.00 share of lawyer costs.
At Fleury, Comery, Greg McConnell has extensive experience in
the conduct of personal injury matters. If you or someone you
know has been injured through the fault of another, we urge you
to contact us right away for a no-charge consultation.
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