COVID-19 Update: How We Are Serving and Protecting Our Clients

Articles Posted in Legal News

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12 weeks or so and counting of “lockdown” or “kinda quarantine” depending on who you ask. It’s been difficult for everyone. From doctors, to dentists, to lawyers, to tennis pros, teachers, PSWs, general labourers, hospitality staff; you name it. The only people I know who are succeeding, if you can call it that; are those people in the video conference industry. If you work for a company which runs or services video conferencing platforms, I suppose you are busy. Also busy are likely those people who manufacture and distribute PPE. Regrettably, most of those factories are overseas, but that’s another story all together….

So; what’s it like to be a personal injury lawyer during the days of COVID?

It’s not that things have totally shut down. Things are just moving at a much slower pace in a different fasion that personal injury lawyers, defence lawyers and insurance adjusters are used to.

It’s certainly not easy. It’s particularly not easy if you aren’t tech savvy. In fact, if you are a technophobe (someone who isn’t capable or handy with technology), you likely cannot really practice law or get much done during the age of COVID.

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One of the most depressing things about living through COVID is that we don’t know when it’s going to end (if ever). The number one question which my clients, staff and lawyers want to know is when and how or even will we ever get back to our normal lives?

I can’t answer that question. None of the experts can.

It’s that uncertainty which drives us all mad on the inside, despite putting our best foot forward; along with our best face for the social media hives to which we belong.

I exchange many pleasantries over the phone with fellow lawyers, insurance adjusters, clients and prospective clients. We are accustomed to saying standard, pre-programmed responses during these exchanges part out of common courtesy, part out of custom.

These exchanges go something like this:

Lawyer: Hello. Its (insert name of personal injury lawyer here) calling from (insert name of personal injury law firm here). How are you?

Insurance Adjuster: I’m doing well. How are you?

Lawyer: I’m fine thanks for asking. I’m calling you about the (insert name of personal injury client here) file…..

And thus the conversation flows regarding the specifics of the case.

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As tough as it is for most people to navigate the challenges associated with the current pandemic, it’s even more challenging for those dealing with injuries as the result of an accident, says Toronto personal injury lawyer Brian Goldfinger.

After someone has been injured, they are often assessed by an occupational therapist to see if any modifications need to be made to their living space to accommodate their new situation, he says. They also might be receiving treatment by a physiotherapist, chiropractor or massage therapist. None of that is happening right now.

“These people are certainly feeling the impact. They’re at home getting no treatment or care, and it’s not helping their physical health or mental wellness. It’s putting them at grave risk to be alone when they need some form of attendant care or supervision,” Goldfinger says.

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Many lawyers boast about being virtual, paper free and 100% remote. This is fantastic and something which we should all strive for given the current climate brought on by the COVID19 global pandemic. If COVID19 has done anything for the legal profession, it’s opened the legal community’s eyes that we as a profession are desperately behind the times when it comes to incorporating technology in to the general practice of law.

I place the majority of the blame on our inept Court system along with our archaic filing practices. Lawyers CANNOT file a majority of materials with the Court electronically. Process servers for in person Court filings are required, otherwise you will face the wrath of rejected materials. Courts have never wanted to hold teleconferences for mundane consent or unopposed matters. Courts still require personal attendances at the expense of everyone’s time, money and resources. I hope that all of this will change when we reach the light at the end of the COVID19 tunnel.

I can go on and on about inefficiencies of our Courts and legal practices along with how we can all improve with technology; but this is a topic for another day.

The purpose of this week’s instalment of the Toronto Injury Lawyer Blog is to focus on the daily activities of a personal injury law practice which have been impacted by COVID19. For today we will let you in behind the curtain of Goldfinger Injury Lawyers to understand what goes on behind the scenes to keep our law firm running in a time of crisis.

The lawyers who I recognize boasting online that their practices are 100% remote are mostly those lawyers who earn a salaried wage. They are not business owners. They are in large part removed from the day to day, nitty gritty which go hand in hand with operating, managing and running a law firm. Such lawyers are employees or contractors of a legal operation of some sort. Think of in house lawyers, associates or even partners of a larger law firm.

Some may be “partners“. But the term “partner” can often be misleading. There are equity partners vs. non equity partners. Equity partners have skin in the game. Non equity partners can exist for name recognition only, and don’t have any skin in the game compared to their equity partner counterparts. A non equity partner can walk away from a sinking ship without any real consequence. At the same time, even equity partners can find a way to buy out, walk away or totally collapse the firm if things aren’t going well without significant personal loss. See Goodman & Carr or Heenan Blaikie

An owner of a law firm is responsible for paying rent, office supplies, making payroll, paying for professional membership dues, operational overhead, marketing overhead etc. These are great responsibilities which feed family and fuel many different industries (legal, office supply, marketing, telecom, tech, furniture, security, cleaning and the list goes on).

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The global COVID-19 pandemic has had a severe impact on the way lawyers serve their clients, with many opting for remote meetings through phone calls and videoconferencing rather than in-person, says Toronto personal injury lawyer Brian Goldfinger.

In Ontario, across the country and around the world, governments have declared states of emergency, advocating that people work from home where possible and practice social distancing to slow the spread of the novel coronavirus.

“We’re not conducting any in-person meetings,” Goldfinger says. “We’re doing as much as we can over the phone and on email. We have cancelled all meetings that required an appearance, including examinations for discovery and mediations, if we can’t do them over the phone or using videoconferencing. We don’t want to put anyone at risk.”

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This installment of the Toronto Injury Lawyer Blog is intended to focus specifically on the impact which COVID-19 will have on your personal injury case.

Right now we recognize that there are much more pressing life issues out there given increased health risks and lifestyle changes which COVID-19 has brought. These larger life, political, economic and health/safety issues are certainly larger than a personal injury case.

We are personal injury lawyers.

We do not profess to give an cogent or meaningful advice about health policy, social policy, geo-political policy etc.

If you want that sort of information or misinformation; there’s certainly no shortage of it out there.

We are going to stick to our lane and comment about what we know best; personal injury law.

Before we get in to it, we would like to let you in behind the curtain on what Goldfinger Injury Lawyers is doing to flatten the curve. All of our personal injury lawyers are working remotely from home. All in person meetings with clients, adjusters and other lawyers etc. have been cancelled. These meetings have either been rescheduled, or they will take place via teleconference or video conference.  Examinations for Discovery have been re-scheduled. We aren’t yet sure what’s happening with upcoming mediations. These tend to work best in person, but during these times we are taking it day by day and will have to consult with all parties in order to determine the best course of action. This may require re-scheduling the mediation, or the mediations taking place by teleconference or video conference. We remain responsive to voice messages and emails as always.

Many of our clients are concerned for a variety of reasons. But they are calling us for answers about their respective cases and how COVID-19 has and will impact their case.

Here’s how:

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Let me preface this article by stating that COVID-19 Corona Virus is very real; and very serious. For facts, consult your local physician, or reputable medical/government websites such as:

https://www.cdc.gov/coronavirus/index.html

https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html

https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public

https://www.who.int/health-topics/coronavirus

https://www.toronto.ca/community-people/health-wellness-care/diseases-medications-vaccines/coronavirus/

The point of this edition of the Toronto Injury Blog Post is to put as positive a spin as we can on a very negative situation.

One of the biggest complaints from lawyers is regarding how slow, delayed and backlogged our Courts are. Our Courts are handing an enormous volume of cases, with inadequate resources and technology at their disposal.

Electronic filing of Court documents is NOT available for all documents, nor is it available at all levels of Court. In fact, electronic filing is not encouraged or promoted as aggressively as it should be by the Ministry of the Attorney General.

There is an entire industry which has been built on in-person filing and delivery of legal documents (process servers). I have nothing against process servers. They are currently essential to personal injury claims. In fact, with new privacy legislation they are more important than ever because they’re the only ones who have access to track down certain Defendants’ addresses if they aren’t detailed on police report.

But the reality is that with technology, process serving as we know it should be rendered obsolete. All legal documents should be filed electronically with the Court. But they aren’t. Not even close. Hot take. I know. But as lawyers we tend to lag behind and play in the past. COVID-19 is telling us that lawyers should be more flexible and change with the times.

Here’s how.

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Personal Injury Lawyers across Ontario are all talking about the dramatic changes to the Rules of Civil Procedure which take place on January 1, 2020.

The most notable change is that being made to Simplified Procedure.

The amount you can claim for Simplified Procedure claims will double from $100,000 to $200,000, exclusive of interest.

This is significant for personal injury lawyers because damages for pain and suffering claims across Canada are capped at around $388,604 depending on who you ask. We found our best reference guide here with an actuarial/accounting company who focuses their time on personal injury claims. This cap on general damages goes up (or down) each month with the cost of inflation.

The cap on general damages is also significant when taking in to consideration the deductible for car accident cases in Ontario. As of the time of preparing this edition of the Toronto Injury Lawyer Blog, the deductible for general damages in motor vehicle accident claims sits at $38,818.97 and is set to increase on January 1, 2020.

When you take in to consideration the cap on general damages in Canada, along with the deductible for pain and suffering in car accident cases in Ontario, many personal injury lawyer across Ontario will look to take advantage of bringing claims under the New Simplified Procedure Rules.

The New Simplified Procedure puts a cap on cost recovery at $50,000; along with a cap on disbursement recovery at $25,000.

What’s important to note here is that the recoveries are limited at these amounts. But there is nothing preventing another party from spending well over these amounts. That means that a deep pocketed insurer can spend $500,000 on a case limited to just $200,000 under the Simplified Rules, and only recover $50,000 in costs and $25,000 in disbursements. It wouldn’t surprise any of the personal injury lawyers at our office if any insurer spend 10x of the value of the case in order to prove a point. There is NOTHING preventing a party from over spending on a case. What doesn’t make good business sense has never stopped an insurer from attempting to prove a point. How this plays out we have yet to see.

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Recently the Ontario Government increased the cost of many Court filing fees. Notably, the cost of filing a Trial Record in the Ontario Superior Court doubled from $405 to $810. Like a cruel and ironic April Fool’s joke, the increased fee schedule will be implemented on April 1st,  2019. I cannot recall any form of debate or consultation that went in to increasing. If are seeking out the legislation with the increased court filing fees, you can find it by clicking the link here. 

Imagine that: $810 just to have your case placed on the trial list. This does not take in to consideration the cost of filing a statement of claim ($229), the cost of filing a motion record ($160) , the cost of a Jury Notice ($130), or the costs of any summonses to witness ($30 each).

So: If you want to have a civil jury trial in a personal injury case, whereby you bring 2 motions, the cost in court filing fees alone for a Plaintiff would be $1,359 plus the costs of summonses at $30 each. This does not take in to consideration the filing costs for a Defendant; nor does it take in to consideration the cost of legal fees, HST on legal fees, or disbursements (faxes, photocopies, medical records, police reports etc.)

Lesson: Litigation is expensive and access to the Courts is reserved for the wealthy.

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Goldfinger Injury Lawyers had the privilege of attending an advance sneak peak at the upcoming Canadian International Auto Show 2019 from the Metro Toronto Convention Centre. In case you’re interested in attending, the show is being held from February 15-24, 2019 and features some of the largest collections of production and concept vehicles under one roof in Canada.

One of the things we keep an eye on at each show are the auto manufacturer’s commitments to vehicle and pedestrian safety; along with any innovations which really jumped out at us.

Here are some of the highlights from our trip to the show:

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