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Toronto Injury Lawyer Blog Post #490: Subjective Opinion vs. Objective Evidence in Personal Injury Claims

Everyone is entitled to their own opinion. These opinions differ from person to person….and that’s ok.

Opinions can be based on a lot of different things: fact, belief, values, upbringing, history, education, training, experience, a gut feeling; or based on absolutely nothing at all!

You don’t need evidence to craft an opinion. It’s yours and doesn’t need to be justified by evidence, facts or anything other than that’s how you feel. And the crazy thing is how you happen to feel changes from day to day. Just like your opinion on something can change day to day, or hour to hour. Opinions aren’t concrete. They are fluid and forever changing.

Take politics. Sometimes Canadians elect a Liberal Government. Sometimes Canadians elect a Conservative Government. Other times Canadians can’t decide and elect a minority government. During an election; Canadians voice their political opinions by casting a vote for their party of choice. The party which they vote for can change from election to election. The change of vote represents a change of political support or political opinion. Opinions are fluid and change.

Evidence is completely different.

Evidence is based on facts, figures, statements, empirical data and units which are quatifiable. Evidence is not based on likes, dislikes or gut feelings. It’s based on something tangible, which has been recorded and is not subjective.

Evidence cannot be changed from day to day, or from hour to hour. While new evidence can be introduced to refute old evidence, or to rebut old statements; that does not erase the previous evidentiary record.

Take a car accident in a personal injury case. A police officer is called to the scene of the car accident. The officer prepares an accident report, interviews witnesses and records their statements. The officer also notes his/her observations from the accident scene in his/her officer’s log notes. The police service may also call out a forensic team to prepare a reconstruction report of the accident itself. The officer may take photographs of the damage to the vehicles, of the parties and of the injuries at the accident scene as well.

All of these records we have mentioned (the accident report, the witness statements, the officer’s notes, the reconstruction report, the photos) are all EVIDENCE.

This evidence will not change no matter how many years go by. The evidence will stand the test of time (so long as it doesn’t get lost or destroyed).

One party or the other may not agree with the evidence as recorded by police. That’s fine. It happens more frequently than you think in a Court of law.¬† There are certainly disagreements with respect to what the evidence states or stands for; or how much or how little weight Judge should rely on it. But the evidence we discussed forms an important record and shapes the narrative of the personal injury case as the matter moves forward through the Courts.

Both opinions and evidence play important roles in personal injury cases. But evidence often trumps opinion.

An opinion; like that from a medical expert; can be accepted or rejected by a Court. An opinion is not evidence the same way that evidence is not an opinion. And an opinion from an EXPERT is different than an opinion from a party or a witness.

In a personal injury case, there will be two opposite sets of opinions. The Plaintiff will present their side of the case and seek to craft a narrative which best supports their position. The Defendant will do the exact opposite.

In doing so, both sides will call witnesses and experts to present their opinions or sides of the story to support their narrative.

A good personal injury lawyer can poke holes in the testimony of these witnesses in order to attack their credibility and reduce their weight of their opinions.

But even a good personal injury lawyer will have a hard time refuting objective evidence. That personal injury lawyer can attempt to influence a judge/jury to place less weight on harmful evidence to his/her client’s case; but the evidentiary record will not get erased.

Often personal injury plaintiffs have their own opinions about how cases their cases should proceed through the Court system, about the value of their case, or about how insurance coverage should work.

All clients are entitled to their own opinions. But just because they have formulated opinions about their case, doesn’t necessarily mean that those opinions are realistic or within the confines of that the law can do.linkedin-2-300x300

Take a long term disability case. A long term disability case is based upon benefits as defined under the long term disability policy/contract.

If the long term disability policy states that benefits are only payable for a maximum of 5 years; then the Plaintiff is only entitled to at the very most; 5 years worth of long term disability benefits.

The Plaintiff may be of the opinion that his/her benefits should last much longer than 5 years because that’s what they want and that would present the best financial outcome for them. But if the evidence (in the form of the long term disability policy) doesn’t provide for greater than 5 years worth of benefits; then the Plaintiff’s opinion is an unrealistic want which is not substantiated or possible at law.

In a car accident case, each Plaintiff would love to see an award of millions and millions of dollars. The Plaintiff would also like to see their case go to trial immediately; have the trial last just one hour, and get the verdict instantaneously. These wants and opinions are simply not possible given the way the legal system works.

The Plaintiff will have an opinion that they are right and that the Defendant is wrong. When the Plaintiff’s opinion is based on facts and evidence; chances are those opinions will be right and the Plaintiff will succeed.

But when those opinions are not based on facts or objective evidence, more often than not those opinions are inherently flawed and lead to less favourable results. That’s not to say that a Plaintiff will lose 100% of the time where their opinions of the case are based on gut feelings and not objective evidence. But it’s important to establish that when Judges and Juries evaluate cases, they are looking at the evidence and not opinions which aren’t based on the facts and evidence of the case. Bold self serving statements based on nothing but gut instinct and personal beliefs often don’t cut it in Court. If the evidence or the law is not in the Plaintiff’s favour, it does not bode well for the Plaintiff’s case. But if the evidence and the law go in the Plaintiff’s favour, s/he will have a much stronger case. This is why it’s important for all clients to step¬† back and strongly consider the evidence in a personal injury case. Everyone crafts an opinion that they will win and that that they have the best case. But if these opinions are not based on the facts and evidence, they are inherently flawed and may lead to subpar outcomes.

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