In this twelve-part blog series, personal injury lawyers Bree Hankins and Adrienne Staley discuss important steps to follow after a motor vehicle accident and what you need to know about making a personal injury claim. Part 8 focuses on the litigation process.
Part 8: The Litigation Process: What we need to know about you to ensure that you are properly compensated.
Many clients often ask “How long will it take to settle my personal injury claim?” We often give a typical lawyer answer that “it depends”. We say this because it is true. The length of time it will take to resolve your injury claim will depend on a lot of factors. Some of the factors that affect the length of time it takes your claim to be resolved are related to the different steps involved in a personal injury law suit.
In this post we will discuss the litigation process and the different steps you may have to go through before your claim is resolved.
The first step is filing a Notice of Civil Claim, with the court. This is a document that sets out the facts of your claim, what you are claiming and the basis for your claim. It is also the document that starts a law suit. You have two years from the date of your accident to file your claim with the courts and start your law suit, before the limitation for pursuing your claim runs out. A claim can be filed at any time before the two year limitation period is up. If you settle your claim before the two years is up then you probably don’t have to file a claim. If you have not settled and you do not file a claim before the two year limitation period is up then you cannot pursue your claim.
The next step is serving the claim. You have to serve the claim on the defendant (the person you are suing) so they are notified of the claim. With ICBC claims this process is usually straight forward. However for other types of personal injury claims this can be more complicated. You have one year from the date the claim is filed to serve it on the defendant. After the claim is served, the Defendant will then have to file a Response to the Civil Claim.
Once the defendant has filed a response, the next step is the discovery process. This is one of the most important steps in a law suit as it is when we discover the facts about the case, which in a personal injury case means gathering information about you and your injuries. There are two steps to the discovery process. The first step is putting together a List of Documents, which means compiling all the documents related to you and your injuries, including treatment notes from your doctor or physiotherapist, employment records and tax returns.
The second step is called an Examination for Discovery, which is when the lawyer for the defendant (the person you are suing) represented by ICBC, asks you questions about the accident and your injuries and you answer them under oath. This is an important part of the litigation as it is an opportunity for the lawyer for the other side to see and hear you testify about the accident and your injuries. It can also be intimidating and scary for people who have never experienced this before. But don’t worry too much as we always ensure our clients are fully and properly prepared for their Examination for Discovery and we will be there with you to support you and to ensure only proper and relevant questions are asked. Through the discovery process we will need to learn a lot about you including any past accidents or injuries, any pre-existing health conditions you may have, your work experience, your education level, what your home life is like, where you live and who you live with, and the type of activities you participated in.
Now you may be thinking, wow, that is very invasive, why do we need to know all this information? Don’t we just need to know about the injuries you suffered? The reason we need to know all this information about you is because injuries affect all aspects of your life and we need to know how your injuries have affected your life in order to properly assess the amount of compensation you are entitled to. When a personal injury claim is assessed we have to look at how the accident and your injuries have affected your life, so we need to get a good picture of what your life was like before the accident and how your life has changed after the accident because of your injuries.
This personal information about your life will help us determine how you should be compensated for the injuries suffered. The tort system in British Columbia compensates people for their injuries under what are called heads of damage. There are a number of different heads of damage that provide compensation for your pain and suffering, lost wages and a number of other categories. In our next two blog posts we will provide an overview of the various heads of damage you may be entitled to compensation for. Please come back and read them once they are posted to find out more information.
Another part of the litigation process for personal injury claims is obtaining expert evidence. You could be sent to be assessed by an expert for an independent medical examination by both your lawyer and the defendant’s lawyer. An expert provides independent expert evidence on the nature and extent of your injuries. They meet with you, assess you, and then they provide a detailed report with their opinion on your injuries.
Once we have gone through the discovery process and we have a solid understanding of how your injuries have affected your life, we will then be ready to contemplate settling your claim. There are a number of different ways to settle a claim from negotiations with your adjuster, attending a mediation to presenting your case at trial. Not every case needs to go through the entire litigation process before it is settled, however there are a number of different factors that affect when and how your case will be settled. However the most important factor is making sure we have a good understanding of how your injuries have affected your life, because you only have one opportunity to be properly compensated for your injuries. Your case will evolve as your injuries evolve and that is why we cannot give you a guaranteed time line for when you case will be settled.