Toronto Injury Lawyer Blog
One of the super powers I wish that I have as a personal injury lawyer is the power to compel the defendant insurance company to settle any case on demand, for exactly what my clients want out of their case. Regardless of the merits of the case when it comes to liability, causation, or damages Wouldn’t that be wonderful! The terms of the settlement are exactly what my client has demanded; and the settlement happens at the exact time when my client expects the settlement to take place.
This would be a remarkable super power, because this is not how personal injury litigation works.
It’s very rare that a case gets resolved exactly when, and on the exact terms which any party (regardless of whether it’s a Plaintiff or Defendant) is asking for.
Yet, this is what many personal injury Plaintiffs expect. This happens in part because for most personal injury Plaintiffs, it’s their first time being involved in any sort of litigation, or Court proceeding. They are inexperienced with how personal injury cases work, and how the Courts work. Their understanding might be based on what they’ve seen in television, or what they’ve heard from friends (which may, or may not be accurate). It’s the personal injury lawyer’s responsibility to educate their client(s) as best they can in order to taper their expectations.
If you ask a Plaintiff how much they believe their case is worth, many Plaintiffs will give you a value which is neither based on legal precedent, or reality. The figure which they will offer is either incredibly large such that any insurer won’t take it seriously; or terribly small; such that an insurer will jump at the opportunity to get the case settled for such a minimal amount. Some Plaintiffs will tell you that they’ve arrived at that number because “it sounds good“, or “it feels right“. The numbers aren’t based on any legal calculus, or case law. It’s just a gut feeling which will bring peace of mind to a Plaintiff because it seemed right. Other times, that number is arrived upon because it’s the exact number which will satisfy a Plaintiff’s debts (mortgage, credit card, personal loans), or given them enough money to make a major purchase (a new car, a cottage, a boat).
The value of a settlement has no correlation to the value of a purchase on a Plaintiff’s wish list; or the value of a Plaintiff’s accumulated debt. There are so many variables which go in to the value of a case which have nothing to do with the items on a Plaintiff’s wish list.
Let’s say that the Plaintiff really wants to pay off the mortgage on their home ($350,000); and also have some money left over to buy a nice fishing boat ($35,000). The dollar figure that they have in their mind to get the case settled is somewhere between $425,000-$500,000 because they know that after payment of legal fees, HST and disbursements, that this desired settlement amount will give them enough money left over to pay off their mortgage and to buy the boat of their dreams.
This dollar figure is based on a desire, yet doesn’t take into consideration any of the variables which need to be factored in for a personal injury case:
- Precedent Cases For Ranges of Damages
- The Caps on Damages for Pain and Suffering in Canada
- For a Car Accident cases, how the deductible and the threshold impact the value of the claim
- Reductions for contributory negligence
- Reductions for any causation arguments
- Reductions for litigation risk
- Reductions for set offs from any collateral sources (this often goes over looked and is rarely understood because the law as they relate to set offs aren’t “fair”. But who ever said that the laws were created to be “fair“)
- Reductions for an OHIP Subrogated claim in all non-car accident cases. This too is often overlooked or not even conceived by Plaintiffs because they’re not aware that OHIP has claim for the care costs/medical costs which have been paid out on the Plaintiff’s treatment in relation to their accident claim (non-car accident)
- Plaintiffs will tend to view cases on the high end when assessing damages. The reality is that damages have ranges, and vary on the high end, to the low end, and everywhere in between. This needs to be factored in when assessing and understanding damages.
- Reductions for legal fees, HST, disbursements, along with re-payment of any litigation loans which a Plaintiff might have taken out in relation to the litigation
- Winning big a trial, but then having to go to appeal, and paying for those appellate costs; or having the case overturned on appeal (yikes!)
Another interesting factor to consider are out of pocket expenses. I’m not talking about a few hundred dollars here or there for parking, mileage, or medication. I’m talking about the cost of Plaintiffs going out of country to get treatment or surgery. Or, the out of pocket expenses (or promises to pay) for medical treatment which is not covered by OHIP. These expense costs can quickly balloon, and eventually overshadow to cost of the case itself. Imagine spending $100,000 on treatment in a case that only has a $50,000 value. The Plaintiff does not come out ahead in this scenario. These scenarios happen more often that you would believe. Plaintiffs have high expectations of what they are entitled to and operate under the mistaken belief that they will recoup 100% of their expenses at 100 cents on the dollar. This is the best case scenario for a Plaintiff, but many Judges and Juries don’t see the case, or the reasonableness of those expenses through the same lenses as a Plaintiff.
I suppose that another super power which any personal injury lawyer would love to have is knowing exactly what a Judge or Jury will say, along with how they will view the Plaintiff and what their verdict will be before that verdict is even delivered. That way, the personal injury lawyer can know with 100% certainty if the case will win, or lose, along with how much money the Plaintiff stands to collect.
