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What does it take to win my personal injury claim (Ontario)?


March 6, 2013

One of the most common questions we get from clients here at our law firm is "what does it take to have a sucessful accident case"? Essentially, people want to know what they can do in order to maximize their recovery and reduce their waiting time. It doesn't matter if the client is from Toronto, London, or Peterborough; the question is always the same.

For starters, there is no short or easy answer to this question, and similar fact questions. Every person is different, every injury is different, every accident is different, which makes every case different.

There is also no such thing as "winning" a case. If you're really hurt, then no amount of money will ever compensate you for your lost health. WIll a million dollars help you walk again if you've been rendered a parapeligic following serious car wreck on Highway 401 outside of Woodstock? Think about it.

What we tell people is that they ought to focus on their wellness and rehabilitation. The rest will take care of itself. The more which people focus on their legal case, the more anxious, worried and frustrated they will get. There are countless legal hurdles which need to be overcome by a skillful lawyer which all take time. Add to that the limited resouces in Ontario's Courts and at FSCO which contribute to a long delay, you might be waiting a long time until your case sees the inside of the Courtroom, let alone settle.

But, there are certain things which people can do in order to ensure that their recovery (along with their lawsuit) runs smoothly.

Here are some of Brian Goldfinger's tips or observations for a winning injury case in Ontario:

1. For starters, you need to be genuinely hurt as a result of somebody else's negligence or wrongful act. This is particularly important for car crash cases in Ontario as there is a threshold for damages (serious and permanent). This negligence or wrongful act needs to have caused, or be directly related to your damages. At law, this is called liability, causation, and damages. You need to have all three in order to have a sucessful case. Your lawyer cannot make up the facts. The facts are what they are. So, if you accidentally fall down the stairs at your brother's house and fracture your ankle, nobody will doubt that you're injured (damages), and nobody will doubt that your injuries were caused by the fall (causation), but where there will be an issue will be liabilty. Is it your brother's fault you were a clutz and fell down the stairs on your own accord? Or did you fall down the stairs because there was not bannister or the stairs were in a state of disrepair? As you can see, any sucessful case will have the above three elements. Without them, your case will prove very difficult for any legal counsel.care19.jpg

2. Insurance companies, judges and juries like nice, hardworking and honest people. They do not like awarding or rewarding people who they believe to be liars, fakers, cheaters, fraudsters or malingerers. If you are genuinely hurt in a collision, or trauma, then your injuries will speak for themselves. You have nothing to hide, and you have no reason to lie. Be yourself. Be kind. Be nice. Remember: you NOT the bad guy despite the insurance companies efforts to make you feel that way.

3. Focus on your rehabilitation and don't miss any doctor appointments. I've seen some clients in areas such as Peterborough where there aren't many specialists wait months to see a neurologist. When their appointment date finally comes after waiting for 8 months to finally see this doctor, they sleep in and miss the appointment all together. Then they never get to see a neurologist again because by the time they get an appointment to see their family doctor, over a year has passed and all of the paper work gets lost through the cracks. When the insurance company asks what happened to that medical appointment, they don't sympathize that you slept in. They think that if it wasn't important enough for you to wake up for, then your injuries certainly cannot be that significant either. It's quite the inference, but it's a leap that's make time and time again, which is very convincing to juries.

4. Don't lie, don't guess, don't be dishonest to your lawyer or to the insurance company. See #2 above. I can't stress this enough. If you're hurt, it will come out. If you're a liar, they will track you down in your lie and destroy your lawsuit. You will only have yourself to blame.

5. If a little white truck is camped outside of your door, and follows you around when you leave your house to run errands like pick up your groceries, then call your lawyer immediately. You're right to be paranoid or feel like somebody is watching you. It's called survelllance, and insurance companies like this one make tons of money from insurers following accident victims like you around to catch them in the act of doing something they shouldn't be doing (bungee jumping, waterskiing, or lifting heavy objects when you say that you can't). Your lawyer won't be able to get the surveillance to stop, but we certainly know of a few tricks to slow it down, or make it less effective.

6. Try returing to work. Try leading as normal life as possible. There's nothing better for a case then a failed return to work effort. It's a win-win scenario for you, the client. If you can get back to work, then you don't need a law firm like Goldfinger Law in your life and you can start earning some money by working. But, if you can't work, then we can point to that failed return to work effort as proof that you tried, and failed as a result of your accient related injuries. At law, this is called mitigation of your damages. There is nothing better for a case then a client who tries to get back in to the swing of things.