When we talk about seeking compensation for personal injuries, it’s often said that we “deserve our day in court”—in other words, we are entitled to justice in the eyes of the legal system. So it may surprise you to learn that over 95 percent of all injury cases in Edmonton and throughout Alberta never actually make it to court, instead reaching a settlement at an earlier stage of the process.
While it may seem, after suffering an injury, that going to court is the best way to obtain the maximum compensation you deserve, it’s important to consider all of the factors that play a role as you proceed with your case. For instance, a trial can be emotionally taxing and consume a lot of your time, energy, and financial resources as you’re recovering from an injury. Obtaining compensation also takes longer. Additionally, going to court carries a certain amount of risk: as strong as your case may seem, it’s still ultimately left up to a judge or jury to decide how much you are compensated (or if you are even entitled to compensation at all). Still, there may be advantages or other reasons to take your case to court, which you should discuss with your lawyer as you evaluate your full range of legal options.
When do personal injury claims go to court?
Although settling a personal injury claim is generally preferable, some plaintiffs have no choice but to litigate their case in court due to unusual circumstances or disputes regarding fault, liability, or compensation.
More than likely, you’ll file your initial claim for compensation with the insurance company representing the person or party you and your lawyer have determined to be responsible for your injury. The claim will seek a specific amount of compensation, calculated by your lawyer using existing evidence and records, as well as expert testimony and other references. At this point, negotiation will commence, with the goal of reaching a reasonable and adequate settlement. However, if the insurance company refuses to reason, denies that their client is fully or partially liable, or disputes the amount of compensation to which you are entitled, your efforts to settle may reach an impasse, forcing you to take further legal action. This means engaging in formal litigation, further negotiations, and other processes that could end in a trial.
Is there a difference between a lawsuit and a claim?
In Edmonton, AB, and throughout Canada, you often hear the terms personal injury claim and personal injury lawsuit used interchangeably, especially as they relate to auto accident cases. In truth, they are separate actions with similar objectives: to obtain compensation for the costs and damages you incur through no fault of your own. Sometimes one process follows the other.
Your first step after being injured in an accident caused by another motorist should always be to seek legal advice from an experienced and trustworthy lawyer. Once you have secured representation, you’ll generally proceed with filing a claim. An injury claim, or an insurance claim, involves your own auto insurance provider and/or the other party’s and depends partly on the coverage each of you has. Adjusters and other consultants might be brought in to evaluate the circumstances of the accident and determine fault and damages incurred, eventually negotiating toward a settlement.
In an ideal world, the claim process is fair and straightforward, with the at-fault driver’s insurance company ultimately providing every bit of the crucial coverage you need to deal with your injury. In reality, it’s important to remember that insurance companies are businesses first and foremost and that their main goal is always to maximize profits and minimize losses—even, sometimes, if that means engaging in bad faith practices such as trying to get you to unknowingly accept some degree of fault. This is one reason why consulting with a lawyer is absolutely crucial before engaging in any communication, giving any testimony, or delivering/signing any deposition related to your accident or claim.
Even under a lawyer’s guidance and representation, there are many situations where insurance claim negotiations break down: an unreasonably low settlement offer, disagreement over liability or details of the accident, and other complications, to name a few. Should this happen in your case, you’ll likely proceed with a formal injury lawsuit. This term refers to the entire legal process that begins with the filing of a Statement of Claim, includes different phases such as Discovery Examinations and further negotiations, and culminates with the court when necessary.
What about settling outside of court?
In almost all cases, settling your personal injury lawsuit before going to court is the goal. If, at any phase of litigation, both parties agree on a deal to settle, settlement papers are drawn up and signed, and the process ends. In fact, the main purpose of all pre-trial steps, including those listed below, is to arrive at a settlement and avoid a long, costly trial:
- Investigation – You and your legal team gather information and begin to build your case.
- Pre-filing negotiations – Present the evidence you’ve gathered thus far in an attempt to settle before officially filing.
- Statement of Claim – Formally filing a lawsuit. The defendant (the other party) will be served the notice and will be required to respond.
- Statement of Defence – The defendant’s response indicating their intent to defend the Claim.
- Discovery Examinations – Also known as depositions, this is a stage at which all parties involved exchange the evidence they have compiled, again attempting to understand each side’s case and arrive at a settlement.
- Mediation – An additional effort to settle, this time facilitated by a neutral third party. This process is required in all injury cases before the court provides a trial date.
What can I expect if my case does go to court?
If all attempts at resolving your case out of court are fruitless, you’ll move on to the final phase: trial. In a trial, both parties argue their full cases in front of a judge and/or jury, presenting all physical evidence compiled and calling upon witnesses to provide their accounts, specialists to offer their own expertise, and ultimately, you—the plaintiff—and often people close to you to take the stand and testify about the effects and damages your injury has caused. Eventually, the jury, under instruction from the judge, deliberates and reaches a verdict. The outcome will be a determination of fault or percentage of fault, liability, and compensation.
Going to court is a long, expensive and arduous process and should be avoided if at all possible. No matter what—and especially if your case ends up in a trial—you need a lawyer you can trust to help with your personal injury claim every step of the way. Book a free consultation with the team at Chadi & Company today: call (780) 429-2300 or contact us online.