Toronto Injury Lawyer Blog
I was sitting with a friend on a 3 hour flight. We’ve known each other for around 10 years or so. In the time knowing each other, I can’t recall ever speaking with him about work. This is largely because of the privilege which attaches to the lawyer-client relationship. We don’t blab about the ins and out of our clients cases. We take the privacy and confidentiality of our clients cases, and their circumstances very seriously. But, another part of the equation that I don’t speak with him very much about work is because I never thought that he would be all that interested with the ins and outs of a private personal injury practice. I didn’t consider that things which I don’t find very interesting like freakish fact patterns surrounding liability; tricks which insurers play on innocent accident victims; lies which people make under oath; poor police work when investigating accidents; or the ups and downs of litigation can be interesting for some people.
On that flight, my friend wanted to know how much time I spent in Court. This is a common question I field from many people. Naturally, when people who aren’t familiar with the legal system think about lawyers, they think about going to Court and trying a case before a Judge and Jury. But, if you are a solicitor (a lawyer who doesn’t practice litigation), then you aren’t going to Court at all. Solicitors are lawyers who facilitate transactions. They are the ones who draft wills, facilitate commercial transactions, do real estate deals, loans, mortgages, promissory notes, immigration work, draft contracts, mergers and acquisitions, international trade agreements etc.
Personal Injury Lawyers are litigation lawyers. They appear in Court, though around 99% of all personal injury cases settle outside of Court. But personal injury lawyers don’t just argue cases in Court. They also argue cases at tribunals as well. The License Appeals Tribunal is a good example of this. The License Appeals Tribunal (LAT) is NOT a Court. This is where accident benefit disputes are heard. These cases are NOT heard before a Judge or a Jury. Rather, they are heard by an adjudicator who has been appointed by the Government of Ontario (much like a Judge is appointed). The Adjudicators at the License Appeals Tribunal do NOT need to be lawyers, or have law degrees for that matter. Arguing a case at the License Appeals Tribunal is like going to Court (though it is not Court).
Sometimes personal injury lawyers are going to different Courts in order to better understand, or to bolster the evidence for the personal injury case. Here’s an example:
A Personal Injury Case for Damages and compensation is started in the Ontario Superior Court. Let’s say that the case relates to a sexual assault, or a motor vehicle accident.
The Defendant in the sexual assault case is charged under the Criminal Code. The Defendant’s trial in relation to these charges is taking place in the Ontario Court of Justice. This Court is separate and apart from the Ontario Superior Court where the personal injury case was commenced. It’s not uncommon for a personal injury lawyer to attend at Court to observe, take notes, or order the transcripts from the proceeding.
The same applies for a motor vehicle accident case. If the at fault driver is fighting the ticket (usually a Highway Traffic Act Proceeding), the personal injury lawyer can attend at Court to hear, observe, take notes, and order the transcript from the Highway Traffic Act case. These cases are decided by a Justice of the Peace (not a Judge. There is no requirement for a Justice of the Peace be a lawyer or hold a law degree).
What’s important to take from these examples is that while the personal injury lawyer is attending at Court (either in person or virtually), they don’t have any standing, or any official role. They aren’t saying a word. They are akin to a fly on the wall. They are there simply to observe in order to better understand, or to strengthen the civil case. The common misconception is that lawyers attend at Court and they are thus the star of the show with a big speaking role. On many occasions, the opposite is true as illustrated above.
Another common misconception is that every time a personal injury lawyer goes to Court, they are arguing the merits of the case; or that the case will be decided based on that Court appearance. That’s not true either. Many times when personal injury lawyers go to Court, they aren’t arguing the merits of the case itself, nor will the case be decided on that appearance. Rather, they are in Court to deal with a procedural step in relation to the case. Things like service of the Statement of Claim which needs to be normalized; amendments to the pleadings; getting an Order for 3rd party productions; getting an Order for a complete copy of the unredacted police file or Crown Brief; extending procedural timelines; setting a timetable; having a Case Conference; transferring the action from one Courthouse to another Courthouse; combining the claim with another related claim; arguing over undertakings and refusals given at examination for discovery. All of these things are related to the case itself; but have no bearing on who will win, or lose the case. These are examples of personal injury lawyers attending at Court, yet the case is NOT decided based on these Court appearances. Most people don’t think of these interlocutory procedural steps which require Court appearances when they think of personal injury litigation. It’s not top of mind because most people don’t know the ins and outs of a personal injury case. They only think of them in the direct route of accident, intake, examinations for discovery, trial. There are many steps in between which may require attending at Court in order to move the case forward.
These procedural steps aren’t exciting. There’s rarely a smoking gun moment (a gotcha moment) tied into these steps. Securing third party records isn’t glamourous. But, it’s necessary in order to get the job done. Doing the little things the right way, is a great recipe for success.
