A well respected personal injury mediator recently compared a successful mediation to baking. It takes great ingredients to bake a great cake. The same as it takes a lot of different pieces of evidence and factors to make for a successful case or mediation. Just as one ingredient cannot make a cake. One piece of evidence or factor cannot make for a great case or mediation.
I love that analogy on so many levels.
Firstly, I like great cake. Who doesn’t? Yum!
Second: he is absolutely right. It takes great a lot of evidence to make for a great case. As it takes the parties working in harmony to get to “Yes” during the mediation process. Getting the ingredients right is required to get the deal done.
Finally and most importantly; the analogy which the mediator used (comparing needing great ingredients to bake a great cake to a successful case or mediation) is simple and easy for anyone to understand. I’ve found that easy to understand and easy to relate to analogies work best with accident victims. All too frequently lawyers and other actors in the personal injury litigation system forget that Plaintiffs haven’t done this sort of thing before.
In all likelihood it’s their first time hiring a litigation lawyer; it’s their first time suing; it’s their first time being exposed to the underbelly of personal injury litigation in Ontario; it’s their first time hearing legal terms that lawyers throw around.
Often times Plaintiffs believe that simply being in pain or unable to work is enough to prove their case.
The don’t attend for treatment, or see their doctor(s) or a regular basis thinking that their pain and suffering is enough to have a successful claim.
A Plaintiff being in pain, or being unable to work is only one ingredient for that delicious personal injury cake you are trying to bake. Imagine trying to bake a chocolate cake and your only ingredient is chocolate. What you have is a lump of chocolate and not a cake. You need more.
Helping a Plaintiff understand that his/her pain and suffering alone isn’t enough towards building a successful case is important. The case will fail if there aren’t any other ingredients in the form of evidence to support the case.
So where does that other evidence (ingredients) come from?
Insurance companies, defence lawyers, Judges and Juries will want to see that a Plaintiff is seeing their family doctor or nurse practitioner on a regular basis. They will also want to see that the Plaintiff is attending regular treatment (if available) and seeing any other doctors/specialists for their condition. They will want to see that he Plaintiff is taking medication and doing everything in their power to get better. This concept of trying to get better is known as “mitigation“. A Plaintiff at law has an obligation to mitigate his/her damages or losses. This means that a Plaintiff cannot just sit back and do nothing. They have to do their best to get better. And there’s nothing better for a Plaintiff case than a Plaintiff who tries to mitigate those losses; and fails.
Example: A Plaintiff is injured in a car accident. S/he cannot return to work for 10 months on account of his/her injuries. Let’s say that it’s a broken hand and broken ribs. In month 11, the Plaintiff tries to return to his/her job as a general labourer. The Plaintiff is able to work Monday and Tuesday, but not the rest of the week. The Plaintiff then tries to return to work the following Monday, but has to stop mid shift on account of debilitating pain. The Plaintiff then goes to see his/her doctor who tells him/her to take it easy and that returning to work is not in the cards right now. Months pass and the Plaintiff tries to return to work again, without success. The family doctor and the Plaintiff agree that the Plaintiff is not in a position to return to work on account of his/her accident related injuries and that the best course of action is applying for CPP Disability.
The Plaintiff and his/her personal injury lawyer can show the insurer, their lawyer along with the Court that the Plaintiff was motivated to return to work; tried to return to work; yet his/her injuries were so bad that s/he was prevented from working. This makes for a stronger claim rather than a Plaintiff just sitting at home and not mitigating his/her losses.
Other ingredients which help make for a successful personal injury case?
Photographs of the injuries, of the accident scene, the hazards which caused the accident or the damage to the vehicle(s) are always helpful. They add context to the words on the page.
Will say statements from witnesses are helpful as well. These are statements from either witnesses to the accident, or lay witnesses who can provide additional details about how the accident impacted the life of the Plaintiff. A good will say statement from a lay witness can paint a picture of the sort of person the Plaintiff was before the accident; along with how the accident has changed that person’s life. The more drastic the change as a result of the accident, the stronger the case in the Plaintiff’s favour.
Receipts for out of pocket expenses are important. It’s not enough for a Plaintiff to say that s/he has spent thousands of dollars out of his/her own pocket on treatment, medication, parking etc from the accident. Courts and insures alike need concrete evidence. That concrete evidence comes in the form of receipts to reimburse a Plaintiff for his/her out of pocket expenses. The Judge and insurer will not take your word for it to same way that Revenue Canada needs proof of expenses. It’s the same concept which far too few Plaintiffs fail to appreciate.
Getting on a form of disability can strengthen a Plaintiff’s case as well. After a serious accident and insurer may take a hard line position denying that the Plaintiff’s injuries are legitimate. But if post accident the Plaintiff needs to apply for disability and gets approved; the insurer will have a hard time denying that the injuries are legitimate. If the government of Ontario or the government of Canada acknowledges that post accident that the Plaintiff is disabled, then how can an insurance company take the position to deny that the Plaintiff is disabled or injured. That’s not to say that an insurer may pivot and try to establish that the Plaintiff’s disability/injuries are not related or caused by the accident. This is a different argument (causation) vs. arguing the legitimacy of the injuries themselves.