We have all heard the following statistic: our number one fear is public speaking (even ahead of death). For people injured in motor vehicle accidents, it can be said that the fear of trial is tantamount to the fear of public speaking. While some cases do end up going to trial, it is important to note that the vast majority of cases resolve through settlement. Trials are inherently risky and expensive for both sides and therefore tend to be avoided. Nonetheless, many of our clients want to know if their case will proceed to trial.
Unfortunately, it is impossible to know with certainty if you will end up in trial. Accordingly, we often cannot give a complete answer to this question. However, one thing we can do is look at the odds of proceeding to trial. In British Columbia there are about 60,000 injury claims made with ICBC every year. Of these, about 20,000 claims are started in court. Out of these cases, about 300 up in trial.
Regardless, we prepare every case as if it is going to trial. Only proper preparation of your case will convince ICBC it needs to settle. Ironically the more prepared the claim is for trial, the more likely a settlement will be achieved. This is because ICBC will see the strength of the claim and understand that if it does not make a fair offer it will be at risk of paying even more at trial.
There are a number of different stages of an injury claim before a case proceeds to trial. The first stage involves negotiations between your lawyer and the insurance company (namely, ICBC). While this first stage can be done in the absence of a lawyer, it is generally a good idea to at least meet with a lawyer. We offer free face-to-face consultations for anyone who is injured in a motor vehicle collision. Sometimes, at the end of our initial meeting, we will advise prospective clients that it is too soon to retain a lawyer. Other times, there are factors at play that require the immediate assistance of a lawyer. Here are a few reasons why a lawyer may be needed sooner rather than later:
- The seriousness and complexity of the injuries demand immediate attention;
- There is an allegation that you were a “worker” or in the course of employment at the time of the accident;
- It is unclear who will be found at fault for the accident; and
- You are not comfortable dealing with the insurance company in the absence of a lawyer.
The above-mentioned items are just a few reasons for retaining a lawyer as soon as possible. An experienced lawyer will ensure that you are being treated fairly and that your interests are being properly advanced. Moreover, a lawyer will take steps to investigate issues relating to fault and gather all necessary medical evidence in such a way as to ensure that you are well-equipped for negotiations.
In the event that negotiations are not successful, the next step is to commence a legal action within two years of the accident. After this, the insurance company will hire a defense lawyer and the parties will exchange relevant documents. Negotiations will continue during this time, but if the case does not resolve then the parties will proceed to what is called an “Examination for Discovery”. An Examination for Discovery takes place in a boardroom before a court reporter; there is no judge present—just the parties are their lawyers. This is a normal step of the litigation process and simply gives both sides the opportunity to “discover” the other side’s case.
Both parties often walk away from the Discovery process with a better understanding of the case. This can often lead to successful negotiations shortly thereafter. On the other hand, it can also solidify existing impediments to settlement.
After Discoveries, the parties may then proceed to a mediation. A mediation involves all parties meeting together in a boardroom with a neutral third-party (i.e. the mediator) with the aim of settling the case. Mediations are often successful.
In the event that all of the above steps do not lead to settlement, then the case is prepared as if it will proceed to trial. However, settlements often can and do occur in the months and weeks leading up to trial.
In sum, the litigation process is inherently long and stressful for all parties involved. Whether or not a trial will be necessary depends on a number of factors that are nearly impossible to determine in the days and weeks following an accident. However, the odds that you will end up in trial are quite low—moreover, it is ultimately your decision if you wish to proceed to trial. Generally, there will be an offer on the table that you can accept and avoid the trial process. The final question will often become, “Is this offer fair or am I better off having a judge decide my case?” Only an experienced personal injury lawyer can help you answer this difficult question.