As a personal injury lawyer, I would love to snap my “Goldfinger” and make all of my client’s dreams come true!
I would snap my “Goldfinger” and my client’s cases would settle for billions and trillions and gazillions of dollars!
I would snap my “Goldfinger” and my client’s cases would settle on demand; with no hassle or stress for my clients.
I would snap my “Goldfinger” and the Defendant insurer would pay for a ticker tape parade down Yonge Street in honour of the Plaintiff and the at fault driver would have to serve as the Plaintiff’s butler for a lifetime.
All of this would be very nice for my clients, but it’s fantasy. The actual practice of law doesn’t work at all this way.
Many clients want to see their cases open, and then close quickly for millions and millions of dollars. That’s the way which personal injury cases appear to work on the television and in movies; so why not in reality as well?
Because reality is completely different than the world we see on TV or on the big screen.
There are a lot of reasons why cases take time to settle or to reach trial. The purpose of this instalment of the Toronto Injury Lawyer Blog will not focus on the procedural delays with the Courts or with scheduling matters between lawyers and the Courts. These factors certainly contribute to slowing down cases from resolving. But there are certainly other factors at play. This instalment of the Toronto Injury Lawyer Blog will focus on those factors, which only the actors within personal injury claims (such as lawyers, adjusters, mediators, and judges) really understand or think about.
Has the Plaintiff’s Health Plateaued?
A Plaintiff would love to settle his/her case immediately.
An insurer will not pay top dollar for a Plaintiff’s future treatment unless that future is very clear. An insurer would be more likely to try to settle the case of cents on the dollar in order to close a file. While this may sound very tempting to a Plaintiff, it’s not necessarily the best course of action.
What happens if the Plaintiff’s health deteriorates after settlement?
A Plaintiff and his/her personal injury lawyer must do a risk assessment to determine if the risk of settling the case at this stage outweighs to potential benefit (or risk) of keeping the case open. This assessment is unique to every Plaintiff. It all depends on the strengths and weaknesses of the case; the risk tolerance of the individual Plaintiff; the injuries and health of the Plaintiff; the age of the Plaintiff; and whether or not the proposed offer to settle is a reasonable one in the circumstances. Ultimately, this is the Plaintiff’s decision, with the guidance of his/her personal injury lawyer.
How Many Parties are Involved in the Litigation?
The more parties which are involved in the litigation, the longer it will take the case to settle. That applies for Plaintiffs and Defendants alike.
It’s important to know that in a vast majority of cases which involve multiple Plaintiffs; that an insurer will NOT settle a case with one Plaintiff and leave the other claims open. When there are multiple Plaintiffs, generally, those cases all need to settle at the same time. This is because the insurer has to protect their insured with respect to potential claims going over the policy limits.
In cases where there are multiple Defendants, insurers try to “pass the buck” so to say and not take any responsibility for the accident. They seek to pass the blame over to another Defendant. They do so by way of Crossclaim which is contained in their Statement of Defence. Other times, insurers are not prepared to pay for their proportionate share of the risk or liability in a personal injury case. Other times, one insurer will take a hard line position with respect to liability, causation or damages and refuse to make any meaningful contribution whatsoever.
All of these factors slow down a case tremendously. While one Plaintiff or insurer may be eager to settle, of the other parties are not on board with the settlement, then it’s not going to happen.
When there are fewer parties, you don’t run into these sort of problems involving too many chefs in the kitchen. One party can settle with another party, and the case is closed. But when we are dealing with multiple Plaintiff and multiple Defendants, that sort of deal making simply can’t happen given all of the moving parts.
Issues with Respect to Liability, Damages or Causation
Every Plaintiff I have met always thinks that they have a straight forward case. But when you break things down, and really look at the case, it’s really more complicated.
There are generally issues with one, or more than one area; and those are: Liability, Damages or Causation.
When there are issues in any one, or more of these areas, the case will take time to settle. These are real legal issues which not only create risk for a Plaintiff at trial, but also impact the value of the case itself.
Surveillance and The Credibility and of the Plaintiff
If an insurance company doesn’t believe a Plaintiff; then they won’t pay that Plaintiff what s/he thinks their case is worth (or pay them at all). We call these credibility issues. These are often exposed when there are contradictions in the records from the discovery evidence. Or these are exposed when there is damaging surveillance taken of a Plaintiff who is doing things which s/he ought not have been doing. When these things happen, it sets off alarm bells for the insurance company. They get the feeling like they are being taken advantage of; and nobody wants that (even an insurance company).
If a Plaintiff is credible, then the insurer will be more likely to agree to a settlement.
If the insurer suspects that they are being taken advantage of, or has some damaging surveillance of the Plaintiff, they will more likely take a harder position on the file.