By Matt Lalande in Trial & Courtroom on January 05, 2022
“Will my case go to trial?” is a very common question that is asked by many new clients at the start of the case. For some, the thought of going to court could be anxiety provoking and mentally debilitating. The most probable reason is that testifying in court is moreless analogous to public speaking….which is very common phobia – one that is believed to affect up to 75% of the population. In fact, for some, the fear of public speaking is the most common phobia ahead of death, spiders, or heights!
The problem with testifying in court is that not only are you public speaking in an open forum, but you are presenting your case via oral testimony in the form of question and answer – which is the furthest thing from regular day-to-day conversation. Questions are asked by both by your lawyers (examination in chief) and the opposing lawyers (cross-examination). Cross-examination is a leading question and answer practice in which you have zero control. It is a procedure in in which the defence lawyer’s goals are to completely undermine your side of the story, discredit you as a person and strengthen their own case. Cross-examination is not fun – and for some can be crippling and incapacitating. For many, there’s nothing quite as nerve wrecking as going under the spotlight and having prying, judgmental eyes stare at you – and then deciding your fate.
The answer is….we don’t know. In our experience, cases are tried for a variety of reasons. It is all too often that cases that we thought would settle ended up being tried and cases we were sure would go to court ended up settling.
The following, in our experience, are some indicators that may predict whether or not your case will be tried.
Is there a liability issue?
Is there a liability fight in your case? If there’s a liability issue, your case may need to be decided by a judge or jury.
Personal injury “liability” means the act of harming another person. Liability is the instance in which a person may be found legally responsible for injuring or damaging another person as a result of their actions. For instance, in a motor vehicle accident, cases are typically divided into two major scenarios – liability and damages.
When determining liability in a car accident, personal injury lawyers must prove that an alleged at-fault driver was negligent – or behaved in a thoughtless or reckless manner. Remember, not many (hardly any) accidents are of the result of intentional or willful actions. In most situations, the injuries are unintended and are caused by a standard of conduct that is less than that which is necessary to protect people from an unreasonable risk of harm.
There are four elements of negligence that must be proved by the plaintiff to succedduly prove that a defendant motorist was at fault:
1. The defendant motorist owed a duty of care to you, the plaintiff;
2. The duty of care was breached by the defendant motorist;
3. You suffered injuries;
4. The breach of duty was the actual and legal (proximate) cause of the injuries suffered by the plaintiff.
When determining motorist negligence, liability in a car accident could be assessed in a variety of ways:
Typically, reasonable thinking lawyers can work out liability issues in advance of trial but…not always. In some cases liability cannot be agreed upon and a judge or jury is required to make a determination regarding who caused the accident.
In our experience, if the lawyers are reasonable (which unfortunately is not always the case) and more importantly, if clients are reasonable in providing instructions to their lawyers, car accident liability can be worked out and trials could be avoided.
Is there an issue with assessing your damages?
What are damages?
A bodily injury victim is, in principle, is entitled to recovery of past and prospective loss, damage and expense, whether economic or non-economic, insofar as these damages are caused by or contributed to by the wrongdoing of the defendant. Typically, in a personal injury case, a person may claim compensation for pain and suffering, the loss of enjoyment of life, loss of amenities, past and future wage losses, housekeeping losses and compensation for their medical care and costs in the future.
Many, if not most cases go to court because both sides cannot reach a proper agreement or assessment of damages. Disagreements can occur on all or some of the damages claimed.
Why can’t damages sometimes be agreed upon?
Cases are often tried on the issue of damages because either the personal injury client or insurance company are unreasonable in their perspective positions. Clients may not guided by good sense or might be out for vengeance or on a mission to destroy the other side. Lawyers may let egos get in the way. Insurance company claim examiners may not be experienced enough when it comes to valuating the insanely high cost of trials.
Clients may not be understand the risks, or the math involved. Believe it or not, the monetary amounts involved with resolving a personal injury case can get extremely complicated when involving damages, interest, disbursements, costs, the threshold and the statutory deductible. Settlements must be valuated in terms of whether or not formal offers can be beat. When a client is the onus of proving his or her damages, it’s extremely important that an experienced personal injury lawyer is involved to properly educate a client so that they understand the math.
Some lawyers may also set unreasonable expectations at the start of the case which can be a major hindrance at the end of the case – and hence prevent them from obtaining instructions from clients who expect more. Nothing good can come our of an experienced lawyer promising $1 million on a $50,000 case.
Is there an issue with your credibility?
Credibility often plays a major factor in personal injury lawsuits. In fact, lawsuits are often a battle of credibility – both of the lawyer and the client.
Trial lawyer Gerry Spence used to admonish all of his students at his Trial College in Wyoming by telling them that “It all begins with you.” He often told his well-known story about a cowboy who tried to spruce up an old $10 horse by putting a $1,000 saddle on it. In the end, you still have a $10 horse. In case the metaphor is not clear, you can put a fancy suit on a not-so credible lawyer and in the end, the jury will see through the fancy suit right to the dishonest core.
For plaintiffs, credibility is often a make it or break it during a personal injury lawsuit. Most experienced defence lawyers will realize there is a credibility problem with the plaintiff long before trial. For example, defence lawyers often look for undisclosed prior injuries, undisclosed prior medical care, whether or not the plaintiff has delayed treatment or not treated, whether or not the plaintiff was compliant with the instructions of his or her doctors, whether there is surveillance showing a plaintiff being active, whether or not the plaintiff has exaggerated claims of injury, whether or not the plaintiff seems like a normal and functioning human being on its to Graham or Facebook. All of these are common defences with the intended effect of dinging the credibility of the plaintiff.
Remember, if there is an abnormal amount of time spent on disentangling the truth from exaggeration – the insurance company will almost always want a judge or jury to assist in appraising the demeanor of a particular plaintiff.
The dreaded Statutory Threshold
Most policyholders in Ontario do not know about the “threshold” and how it applies to motor vehicle accidents. Eve worse, the threshold is a dreaded term which, when explained, always makes clients feel like they’re victimized three times. Once by paying unaffordable premiums, secondly by being hurt in and accident, and thirdly by being denied compensation.
The threshold is essentially a “test” that is set out in the Insurance Act which sets out certain criteria that an injured person must meet in order recover compensation. If the trial judge does not believe that the injured plaintiff satisfies the criteria required under the “threshold test”, then that plaintiff will not be able to recover damages. It is not an easy concept to understand. This is why it’s important that you retain an experienced personal injury lawyer to help surmount this challenging task.
What is the statuory threshold exactly?
After the evidence is presented at trial, a judge alone may then determine whether or not your injuries meet the “statutory threshold” test. Firstly, a judge will consider based on the evidence, whether or not you suffered the physical or psychological impairment. Then, the judge will determine whether or not your physical or psychological impairments are permanent. Permanent means that your injuries have been continuous since the accident and despite participation in recommended treatment, your injuries are not expected to improve.
Then, the judge will consider, based on the evidence, whether or not your impairments are “serious” meaning that your injuries substantially interfere with your ability to continue your regular or usual employment duties despite reasonable accommodation or perform most of your usual activities of daily living, taking into account your age.
Whether or not plaintiff meets the threshold is assessed by judicial assessment of credibility and medical evidence.
Medical evidence may be presented as objective or subjective. Objective medical evidence may include medical imaging such as x-rays, MRIs, CT scans, ultrasounds bone scans etc. Other means of objective evidence can be photographs or videos. In many motor vehicle accident claims, a plaintiff’s alleged injuries are rooted in subjective, self-reports of pain and other conditions. These self-reports come from a plaintiff herself and from family members and friends who have observed a plaintiff’s condition, abilities, limitations, and pain. As a result, a plaintiff’s credibility, and the credibility of those upon whom she relies to give evidence in her favor, is a critical issue.
In a perfect world, every client believes he or she is entitled to compensation and that their injuries are compensable. However, being in an accident is not an automatic right to receive financial compensation. At trial, depending on your credibility and the medical evidence presented, the judge might certainly rule that you did not meet the statutory threshold, and that your injuries are not permanent, serious or that you do not suffer from an impairment of an important bodily function.
Long before trial, insurance claims examiners and defence lawyers will be reviewing your case and may determine that your injuries are not serious enough to meet the statutory threshold, meaning at trial, you will not be successful in recovering compensation for pain and suffering or healthcare expenses. Insurers will also assess your credibility at discovery and review your medical evidence and if a determination is made that you may not meet the threshold, you will be requird to prove the opposite to a judge or jury trial – meaning that you will need to prove that you suffer a permanent serious impairment of a physical, mental or psychological function.
Reducing pre-court jitters starts with communication and explanation, long before trial.
In our firm, discussions about going to court typically starts around time of mediation.
What is a mediation?
A mediation is when both sides (your lawyer and the insurance company) agree to hire an impartial facilitator or mediator, to help negotiate the ongoing disputes between the parties. The process typically takes a full day and hopefully, with the help of a mediator, the parties are able to reach a mutually acceptable settlement. The process is private and nothing that is said during the day is admissible in any type of future proceedings.
Mediations typically start out with all parties in the same room. Your lawyer will present when he or she believes to be the strong points of your case that create risk on the insurer, while conversely, the insurance company lawyer will explain to you what he or she believes your risks are in terms of going to court. Typically, the defence lawyer, in his or her opening, will lean towards explaining the unpredictable nature of the jury system. Although through history, justice systems of sought to make jury verdicts fairer and more predictable, the reality is true. The jury system is highly unpredictable, which presents difficulty for counsel in both the plaintiff and the defence side.
If the mediation fails in the case is not settled, typically we will begin to discuss trial procedure with her client. In our practice we believe that discussion surrounding trial should focus on process and not results. In the past, studies have shown that when lawyers and clients focus on the process of a trial, and not the results of the trial, everyone tends to do better. The discussion of trial process over the several months post-mediation is meant to help clients understand what going to court is like in order to help reduce fears and apprehensions about what lies ahead.
The following are some tips that reducing courtroom jitters:
Be prepared – our Hamilton personal injury lawyers will prepare you for hours on end. We will review your medical records with you, provide your full file to review, discuss the examination and cross-examination process and ensure to prepare you to appoint where we believe you could remain in a calm, persuasive state. We will question you over and over, until you are as prepared as you can be.
Talk talk talk – the process of going to court is extremely strange event. If you have any questions at all, we suggest writing them down and talking to us well in advance in order to know what you will expect.
Get enough sleep – there are countless studies that show that sleeplessness or sleep deprivation leads to lower concentration, lower alertness, difficulty paying attention and an interruption of the ability to maintain thought process or logical reasoning. Your reaction time to answer a question is not as quick, and you may have an inability to focus properly. Preventing impairment and daytime functioning by getting enough sleep before your testimony day is imperative. Limit screen time, limit caffeine, limit nicotine and avoid alcohol at all costs.
Exercise – it goes without saying that exercise reduces stress. Any type of exercise will fit the bill. You don’t have to run 10 km. A simple exercise routine of 20 minutes a day can positively impact your mood, self-confidence, reduce symptoms of anxiety, depression -all of which leads to feelings of optimism, clearheaded and calm.
Listen to what we say – we will no doubt advise you of certain tips prior to providing your testimony such as taking your time, listen fully to the question before answering it, always be honest, never speculate, ask for clarification for what you do not fully understand, be cooperative, never have an attitude or allow anger or other emotions to get the best of you, be consistent with any earlier statements you have given to your doctors, medical providers or anyone else involved in your case and most importantly, be prepared.
Understanding it’s not about revenge – remember, you’re seeking compensation to best put you in the place you were before the accident. It important that you do not get caught up in the battle mentality of court for seeking revenge upon the person who hurt you. Remember, nearly all accidents are unintentional and we can almost guarantee the defendant did not set out to hurt you that day. Focus on the recovery of compensation that will assist you with reintegrating into society and being financially secure as best you can, while you recover from this terrible time in your life.
Reduce the caffeine – remember caffeine is a stimulant which means that it will increase the activity in your brain and nervous system, make you feel awake and give you a boost. However too much caffeine – particularly in large doses of coffee and energy drinks – will simply increase your anxiety.
Know who you’re talking to – it’s important to know who your audience is when you testify. When you answer questions under oath, it’s important to know and understand that it will be a judge or jury that are the independent triers of fact. They are the ones deciding the outcome of your case. If your case is a bench trial (meaning judge alone) focus on the judge, talk slow, take your time and read the room. Every judge is different. Some will ask questions, some will not. Some like to work quickly through the docket and want to speed things up, but some judges will want to take notes of every word you say. It’s important to know who you’re talking to.
There’s no doubt that going to court to argue a personal injury case, for many people, is a highly stressful situation. The process for most, if not all, is new and unfamiliar – and even worse, studies have shown that some people rate their fear of public speaking higher than their fear of death. Such anxiety, although totally unrelated to their credibility and honesty, could absolutely hinder client testimony. Juries can interpret signs of unreliability caused by anxious behavior to include poor eye contact, fidgeting, shakiness, profuse of sweating, appearing tends, changes in voice tone etc.
Our goal when starting to talk about the personal injury trial with our clients mostly involves anxiety management. By educating clients about the trial process early on, instead of results, we believe we can help modify client anxiety and brain was in an optimal range to provide testimony.
Remember, if you are a loved one is been hurt in a car accident, it’s important that you hire an experience car accident lawyer that can assist and guide you through Ontario’s extremely complex motor vehicle insurance system. Matt Lalande has been representing car accident victims for 20 years and has recovered millions in compensation for clients all over Ontario.
Calls today no matter where you are in Ontario at 1-844-LALANDE (525-2633) or local in the Hamilton / Burlington / Niagara areas at 905-333-8888 and we would be pleased to talk to you about your specific situation and the compensation you deserve. Alternatively, you can send us an email through our contact page or chat with our live chat agent 24/7.
We Can Help. Contact us 24/7start your case905-333-8888
VOTED BEST LAWYERS IN CANADA 2018, 2019 & 2020