Peer-to-Peer Support Vital for Lawyers Facing Addiction

For lawyers facing mental health or addiction issues, hearing from other professionals who have been in a similar situation can prove to be one of the most important sources of support, Toronto personal injury lawyer Darryl Singer tells CBC World this Weekend.

Although Singer, principal of Singer Barristers Professional Corporation, is now a typical busy lawyer and father, eight years ago, says CBC, he was in the throes of an oxycontin addiction.

Singer tells the program that he not only had difficulty being there for his family at the time, but also his clients.

Read morePeer-to-Peer Support Vital for Lawyers Facing Addiction

Road Hockey: Let the Kids Play

Ontario’s minister of Children and Youth Services Michael Couteau was in the news recently for his plea to Toronto city council to lift a ban on road hockey in the city. The by-law in questions states that:

“no person shall play or take part in any game or sport upon a roadway and, where there are sidewalks, no person upon roller-skates, in-line skates or a skateboard, or riding in or by means of any coaster, scooter, toy vehicle, toboggan sleigh or similar device, shall go upon a roadway except for the purpose of crossing the road, and, when so crossing, such a person shall have the rights and be subject to the obligations of a pedestrian.”

On July 15th, Toronto City Council voted to scrap the ban on street hockey. It was the right choice – this ban was an example of a law that goes too far. The purpose of the by-law was to keep kids safe and to reduce the risk of liability against a municipality if an injury occurs. These are admirable goals, but an absolute ban is not necessary. Obviously a complete ban would reduce the risk of children being hurt, but at what cost?

There are inherent risks in any activity. We don’t ban kids from playing sports, playing in parks or other activities that could cause harm. So if the concern is about kids being hurt in the act of playing road hockey that should be up to the kids and their parents to monitor – not the state.

On the issue of liability, there are already laws in place to protect a municipality. In a possible legal action against the municipality, a plaintiff would need to prove that the municipality failed to take reasonable care to keep the plaintiff safe. Unless a municipality had prior knowledge that children were playing on a street that was dangerous due to traffic or dangerous conditions, it is extremely unlikely that a municipality would be held liable for any injury to the child.

There is a better way.

“The prohibition is nothing short of stupid […] Street hockey gets kids outside and promotes a sense of community and fitness.”

– Darryl Singer, Toronto Personal Injury Lawyer

Toronto is not the only municipality that has banned street games including road hockey. Similar by-laws are in place in Montreal, Calgary and Halifax.

Kingston, Ontario allows road hockey on residential streets where the posted speed limits is 50 km/hr or less and has other guidelines set out in its Street Hockey Policy and Code of Conduct that states:

Street hockey may be played on a Local Street during daylight hours when there is good visibility. Street hockey may never be played before 9 a.m. or after 9 p.m.

Street hockey participants must:

Keep an ongoing watch for motor vehicle and bicycle traffic and must clear the street immediately of participants and equipment so that vehicles may pass safely

Remove all equipment from the street, sidewalk and boulevard as soon as the street hockey game is over and between 8 a.m. and 9 p.m.

Respect the rights of neighbours to the reasonable enjoyment of their property free from damage, inappropriate noise, or disrespectful conduct toward them or their property

The policy states that if a person breaches the Code of Conduct the person will lose the privilege of playing street hockey for 90 days.

In my view, this is a good compromise to promote safety and allow kids to continue to be active and play outside with friends. The City of Toronto and other municipalities should look to this model to once again allow road hockey and other outdoor activity. Let the kids play.

Read the Full Article on OTLA

Toronto Street Hockey Ban 'Nothing Short of Stupid'

Toronto personal injury lawyer Darryl Singer is echoing calls for dropping Toronto’s ban on street hockey, urging politicians to “let kids be kids.” Ontario Trial Lawyers Association Blog

“The prohibition is nothing short of stupid,” says Singer, principal of Singer Barristers Professional Corporation. “Street hockey gets kids outside and promotes a sense of community and fitness.”

Society spends too much time worrying about legal issues such as liability, he tells AdvocateDaily.com.

“We are over-lawyered and over-legislated at the municipal level. This is an issue where we should leave the legalities out and just let kids be kids.”

Ontario’s Minister of Children and Youth Services, Michael Coteau, recently took the unusual step of intervening in municipal politics to take a stand on the issue, the Toronto Star reports.

Coteau is urging city politicians to amend the Municipal Codes to remove the prohibition of portable basketball and hockey nets on the public right of way, the newspaper says.

In a letter to Toronto City Council, Coteau pointed to the many benefits of outdoor play that go well beyond the physical and health gains: “Things such as communication and social skills, an understanding of social rules, relationship building, learning how to compromise with others, patience and perseverance, teamwork and a sense of belonging.”

Singer, a father of three, says he doesn’t see how the city could be held liable if children are accidentally hurt while playing street hockey.

“It would be a stretch to tie it in with the city,” he says.

“If the prohibition stands, why not ban any sort of physical activity in the city? I am not usually one for the slippery slope argument, but this a good place to say ‘let’s not open the floodgates.”

Read the Article on Advocate Daily

Had a car accident? Don't call the police.

Toronto Police Service announced on March 22nd that it would no longer dispatch officers to the scenes of minor accidents. While the definition of “minor” is not entirely clear, it appears to mean where there is minimal damage to the vehicle and/or there are no individuals with significant injuries. It is foreseeable that other GTA-area police forces will implement similar policies. This will mean more use by individuals of the collision reporting centers, and more need for diligence by motorists at the scene of an accident. While the collision at the time may appear to be minor, injuries sustained by individuals may not become immediately apparent. Often the body and mind are in a state of shock at the accident scene Unless there are broken bones, you may not realize that you have suffered injuries that will linger for months or even years. For example, you may have suffered soft tissue injuries to your neck and spine. These injuries appear to be minor and you will be told if you visit a doctor that the pain will go away in several days. In fact, what I see regularly in my personal injury practice is that soft tissue injuries are often the most insidious. While you will know immediately if you have broken a bone or suffered severe injures, soft tissue injuries may not crystalize for days or even weeks. Further, while broken bones will generally heal, soft tissue injuries often result in chronic physical pain, and the effect of this quite frequently leads to depression and anxiety. Thus, you may not decide until weeks or even months post-accident that you have injuries sufficient to warrant a lawsuit. As there may no longer be a police report containing the other driver’s information and the details of the accident, you need to be proactive at the scene of the accident. Here is a handy checklist of things to do if you are involved in an accident and the police do not attend (or even of they do):

  1. i) Obtain from the at-fault driver his or her driver’s licence and insurance information. In this day and age of cell phones, if you do not have a pen and paper, simply take a photo of the driver’s licence and pink slip. Obviously, you will allow the other driver the same opportunity to gather your information.
  1. ii) Make a note or photograph the make, model and licence plate of the vehicle.

iii) Take photographs of any damage on both vehicles. Don’t forget if any part of the car, such as a bumper, has detached and is lying on the road, take a picture of that as well.

  1. iv) If there are independent witnesses to the accident, obtain their names and telephone numbers.
  1. v) If you feel any pain at all on the day of the accident or within several days or weeks thereafter, immediately attend at your family doctor, emergency room, or walk-in clinic, to document the injuries. Make sure to tell the doctor the details of the accident and how these injuries arose.
  1. vi) Contact your insurance company and provide them all the details, including details of any injuries, so there is a written record of the accident.

vii) When you go home, while your memory is fresh, write a detailed paragraph about how the accident occurred and what injuries you have. Make notes about whether you were wearing a seatbelt, had anything to drink, if you were using a cell phone at the time, the weather, when you first saw the other vehicle, and any other details of the accident and your injuries.

viii) Make a note of any conversation you had with the other driver.

  1. ix) If your injuries re ongoing, keep a regular daily or weekly journal of the nature and progress of your injuries, including your daily pain on a scale of 1 to 10; a list of tasks you need help with; whether or not you missed work or other events; and whether or not (and how) your pain affects your relationship with those closest to you.

Too often I see prospective clients who have no proof that the accident even occurred, have no medical record of any injuries, and may not even know the party they need to sue. Even if you have the basic information, and have been to the doctor, at some point two or more years after the accident, you will be asked as part of the litigation process, under oath, for your recollection of the details of how the accident happened and the specific nature of your injuries over the years. By taking the appropriate steps at the time the event occurs, you will enhance your credibility in the context of the lawsuit, and increase the likelihood that I can settle or win your case.

It’s time for a consumer insurance bureau in Ontario

Personal injury professionals have expressed much consternation of late about the drastic changes to the Insurance Act and the statutory accident benefits schedule. Paralegals, who for years have derived a nice living from accident-benefits work, are expressing worry about their livelihoods, as are the clinic owners, chiropractors, assessment companies, and, of course, the tort lawyers who all line up to take a piece of the personal injury pie.

Those discussions are focusing misguidedly on how the new personal injury playing field affects us. But lost in all of the concern is the important fact that victims of motor vehicle accidents have less opportunity for fair recovery today than ever before.

The provincial government’s focus for years has been to buy into the insurance industry’s rhetoric about how it could contain both high insurance premiums and skyrocketing legal costs if only it would help the companies stop all of the fraud. Yet the government’s response, which is to severely reduce available no-fault accident benefits and increase the tort deductible, is akin to bringing a bazooka to a pocket-knife fight.

This one-two punch of a government passing legislation that’s beneficial to the insurance industry at the same time as the companies make blanket corporate decisions to pay out less money to accident victims on the tort side leaves a gaping hole in consumer protection.

In fact, if the government really wanted to help accident victims, it could implement a consumer insurance bureau as is already the case in the Nordic countries. The consumer insurance bureau would have a mandate to assist consumers with regard to their rights and benefits after they have been in a motor vehicle accident and also, not incidentally, to act as a sort of special consumer ombudsperson to petition the Ontario government about insurance issues from the consumers’ perspective. A yearly surcharge of $1 per vehicle registered in Ontario could fund such a body.

So why hasn’t the Ontario government made such a decision on behalf of the Ontario electorate it represents? That same electorate pays insurance premiums from which the insurance companies fund the Insurance Bureau of Canada. The insurance bureau spends millions of those dollars a year to train insurance representatives on how to restrict payouts and, most significantly, lobby the Ontario government about insurance issues from the insurance industry’s perspective.

One of the authors of this article, Peter Cozzi, first presented the concept to the province about 10 years ago at a Financial Services Commission of Ontario bar dispute group meeting at which a government representative was present to hear the proposal. Nothing happened.

As plaintiff lawyers, we can only work to achieve results for our clients within the legal and regulatory framework that the government has provided. When the government circumscribes that framework to the point that thousands of worthy cases languish due to legislative changes, it’s time for it to invoke some corrective balancing.

Understandably, the insurance industry’s powerful lobby does not want to see legislative changes that would possibly put the plaintiff lawyers in the driver’s seat.

Admittedly, that might be too much of a correction. The idea proposed here for a consumer insurance
bureau that would educate the public, provide input to the government on consumers’ behalf, and possibly implement an internal regulatory regime to keep minor but deserving disputes out of court places the power in the hands of neither the insurers nor the lawyers but rather the consumers. In a province with one of the best consumer protection regimes in North America, that is a natural addition.

So will the Ontario government support consumers’ rights to proper representation in the motor vehicle insurance debate? In our view, the answer is unlikely given the Ontario government’s disinterest in the proposal 10 years ago and the current legislative climate that has leaned in favour of the insurance industry.

Do the province’s actions signal its disinterest in accident victims or is it that the significant revenue contribution from the HST charged on the millions of dollars paid by consumers in insurance premiums in conjunction with the taxes paid by those insurers and their tens of thousands of employees is the critical factor for a government concerned about fiscal responsibility?

Those factors are relevant to a provincial government concerned about revenue to offset a deficit, but the province’s actions surely do little to enhance fairness to the consumers it represents in the legislative process governing insurance.

To correct that by creating a consumer insurance bureau will cost the Ontario government very little and go a long way in protecting the public.

Uphill Battle

Unlike other types of litigation in Ontario, personal injury actions arising from motor vehicle accidents are stacked against plaintiffs from the beginning. Sections 267.5(5) and (7) of the Insurance Act, coupled with ss. 4.1 and 4.2 of Ontario Regulation 461/96, work to minimize the risk that insurance companies for the at-fault driver will have to pay out for injured victims in tort claims. Here are five ways that plaintiffs face an uphill battle from the get-go.

Statutory threshold

Merely being injured in an accident caused by someone else does not automatically entitle one to sue for pain and suffering. The injuries must meet what is called the “threshold.” The plaintiff must have suffered a “permanent serious impairment of an important physical, mental or psychological function.” Most of my personal injury cases involve an argument over whether or not my client meets the threshold. 

As an example, let’s take a typical case I would deal with, where my client suffers from neck and back pain, occasional headaches, and some concomitant psycho-emotional stresses, all of which disrupt her sleep. During the day she is fatigued. The constant pain and fatigue causes frustration leading to minor depression. But she does not miss work and life goes on, for the most part just as it did before. To my client, her pain is real, yet no objective diagnostic tests confirm this. As such, the threshold question is a live issue. I regularly rely upon the Court of Appeal for Ontario decision in May v. Casola [1998] O.J. No. 2475, which states that an individual who returns to normal life but does so with “permanent symptoms including sleep disorder…headaches, dizziness” meets the threshold, and other cases following therefrom (such as one for $100,000 for the soft-tissue injuries of a plaintiff who returned to work and some of his pre-accident activities, but did so in constant pain, in Whilby v. Redhead [2010] O.J. No. 1819). Yet two recent decisions of the Superior Court — Ayub v. Sun [2015] O.J. No. 1415, and Malfara v. Vukojevic [2015] O.J. No. 44 — appear to foreshadow a trend that will make it more difficult for injured parties to recover by seemingly moving the line the threshold must cross.

Threshold motion

While I will run the trial in front of a jury, section 267.5(15) of the Insurance Act allows the trial judge to determine the threshold question regardless of the jury’s determination and award. This gives the insurer two kicks of the can at the same trial. If I am able to persuade the jury that my client’s injuries entitle her to a significant award of general damages, which would appear to determine the threshold question, the judge can decide the question differently and strike the jury award.

Statutory deductible

Section 267.2(1) of the Insurance Act sets out a deductible on general damages for pain and suffering. Presently this deductible is $30,000 on all awards under $100,000. Whatever amount the jury awards will be reduced by $30,000. When a typical soft-tissue case is worth less than $50,000, it is easy to see how the deductible has such an impact. Moreover, the jury is not told about the deductible, which can cause juries to return what they feel is a generous verdict only to result in the plaintiff being shut out.

Insurer not named defendant 

The lawsuit pits my client against a defendant whose vehicle is responsible for causing the accident. The actual defendant is only remotely involved in the defence of the action. It is the defendant’s insurer insurance company who hires and pays the lawyer, and ultimately any award of damages. The jury is not told that an insurer is the de facto defendant. Thus, jurors may seek to balance their desire to help my client with their empathy for the named defendant.

Costs

The loser of a trial will pay a significant portion of the winning party’s legal costs. Costs awards exceeding $100,000 for a typical personal injury jury trial are commonplace — no big deal for the insurance company, but a very large risk for my clients. In fact, it is such a large risk that very deserving injured plaintiffs who are pushed to the eve of trial will often walk away for fear of losing their home or having their wages garnisheed.

These five factors demonstrate how the system is stacked against innocent injured victims of motor vehicle accidents. One large insurer has been so successful in exploiting these inequities that many plaintiff lawyers now routinely refuse to take on clients where that particular insurer indemnifies the at-fault driver. The impact on access to civil justice is that a great many deserving plaintiffs cannot find representation, and many more who do are denied fair compensation for their injuries.

It should be noted that due to recent amendments to the Insurance Act, for all accidents which occur on or after August 1, 2015, the $30,000 deductible referred to above will now be $36,540. Likewise, the $100,000 mark which must be hit to avoid the deductible will be $122,799 for post-August 1, 2015 accidents. These amounts are subject to annual inflation rate increases. This almost under-the-radar legislative change only serves to underscore the opinions expressed in this commentary.

Resist making promises you can't keep

The plaintiff personal injury business is more competitive than ever. Thus, when meeting with a potential personal injury client for the first time, you may well be tempted to make representations as to what you think the case is worth or how quickly you can settle it. I can only assume from the number of times I hear potential clients telling me about their consultations with other firms that this desire to make promises to the clients is rampant.

I am urging you to resist the temptation to make such comments, as your clients will surely be disappointed at the end of the day, which will lead to other headaches (fee disputes, Law Society complaints, negative social media reviews, etc.)

The two most common questions I am asked by potential new personal injury clients (and my answers) are:

  1. How much money is my case worth? (I don’t know).
  2. How long will it take until we settle? (I don’t know).

You may be tempted, knowing the client is shopping around, to land the client then and there by telling them what they want to hear, or what you may actually believe to be the case. I will tell you, however, that you would be wrong to do so. This is simply because at the initial client interview it is impossible to know.

At the outset of the case, you will only have the client’s perspective. You will not have yet heard the position of the adjuster for the target insurer. You will not have reviewed the medical records of your client’s pre- or post-accident treatment. You will not have yet had the benefit of their income tax returns or other supporting documentation.

Oftentimes, at the time the client signs your retainer, you may not even have the police report of the accident available. And as in all litigation, what your client tells you is less important than what the actual documents prove.

There are many factors that go into determining the value of a personal injury case. Quantifying damages in a personal injury case is more art than science; oftentimes abstract art at that.

Here are just some of the factors at play in determining the value of your client’s lawsuit:

  • The nature and extent of the injuries. Under the Insurance Act in Ontario, not all injuries are compensable. Recent case law from the Superior Court of Justice indicates that the bar to meet the statutory threshold is on an upward trend. This is good news for insurers, but bad news for you. If your potential client shows up at your office and thinks his sore neck and back pain is worth six figures, and you either by representation or omission, allow him to leave thinking he might get something near what he has in mind (remember that what is in his mind is not grounded in the realities of the law but rather his emotion and sense of moral certainty), you are setting the stage for a disgruntled client before the case is even underway.
  • What your client’s own medical practitioners write in their notes about her injuries. For example, your client may tell you that she is in constant pain, but her family doctor may use words such as “minor” in her clinical notes or, worse, treat the client’s injuries dismissively. This will definitely hurt your case.
  • How often your client attends for treatment. Many clients stop going to doctors and rehab clinics after a few months either because (i) the treatments are no longer effective; (ii) they simply do not have time; or (iii) they can no longer afford to cover the out-of-pocket cost of non-OHIP covered treatments, such as physio and massage therapy. Their failure to continue treatments for whatever reason may impact what an insurer has to pay at a later stage in the proceeding. Yet, whether or not they continue to attend and at what frequency are factors out of your control.
  • If your client has a potential claim for lost income, the amounts on which they filed and paid tax in previous years or can actually prove through source documents. This is especially acute if they are in the service industry, as a large portion of their real income is derived from tips, yet their income tax returns rarely reflect this; similarly with self-employed small business owners (or those who work in “cash” businesses”) where true income loss is significantly more than would appear from the pre-accident income tax returns.
  • The statutory deductible. The Insurance Act mandates a $30,000 deductible on general damages on motor-vehicle-accident-related personal injury cases. This amount is actually increased north of $36,000 as of Aug. 1, 2015). Since the majority of soft tissue injury cases are worth less than $75,000 for the pain and suffering component, you can see how this deductible has a very real impact, often to the point of deserving parties obtaining nothing more than a negligible amount. Moreover, clients generally do not understand this.
  • The client’s own evidence at examination for discovery or trial or in statements given to doctors or insurers, which experienced (jaded) personal injury lawyers know is often very different than what the client has told us at the time we are retained.

Also keep in mind that what you think of as the value of the case is usually the amount of the cheque the insurer will write, while the client is really only concerned with the net in their pocket. From whatever amount you obtain, you will deduct legal fees of about 30-35 per cent (plus HST). In addition, disbursements incurred by you are over and above the fees. It is not unusual for me to incur $5,000 for a case worth only $20,000. Thus there is often a significant gap between the amount of the settlement and the actual dollars going into the client’s jeans.

Then there is what I call the wild cards. These have nothing to do with your client’s injuries, the state of the law, or for that matter your legal acumen.

  1. The target insurance company. Some insurance companies have taken a very hard line on all soft tissue injury cases that do not have significant provable lost income attributable to the injuries. I have been told more than once in mediations with a certain insurer that they “would rather spend $100,000 on legal fees before paying a plaintiff $10,000.” They have been successfully following through with this threat for several years now. The days of insurers paying a little to save a lot are gone.
  2. The particular adjuster who is responsible for deciding how to handle the file. Even “good” insurance companies, who settle early and often, employ certain adjusters who take a more aggressive approach.

As for the length of time, no matter how fast your office works to move a case forward, you will inevitably be stymied by the bureaucracy of a large insurance company, lawyer’s schedules, your own schedule if you are running a high-volume practice, not to mention the inherent systemic delays of our court system. Accordingly, you should not suggest a time frame in which a case may settle.

For all those reasons, it is almost impossible to give a client an accurate picture of how their case will shake out when you first meet. As such, resist the urge to lure clients with promises of golden tickets and the chocolate factory tours. Instead, focus on empathizing with your client’s situation while leaving them with the indelible impression that you have the knowledge, skills, and experience to give them the right advice at the right time.

If personal injury law is not within your areas of expertise and experience, you are best to refer the file to a lawyer who does have that experience. If you do not regularly practise in personal injury law, you likely lack the requisite knowledge to properly advise the client, understand the process (which has its own conventions and rules of thumb amongst the bar), or properly assess the case.

Further, a personal injury lawyer’s ability to get small- to mid-size cases settled is predicated as much on his or her relationships with the adjusters and defence lawyers as with that lawyer’s skills. At the end of the day, this is a people-driven industry and reputation counts. Being an unknown entity is a further disservice to your clients. You also may not understand the lay of the land at various insurers and how they operate, knowledge integral to a lawyer’s ability to take on the right files and obtain a decent result for the client.

Fortunately, in personal injury cases, there is incentive for non-injury lawyers to refer to experienced injury lawyers. Referral fees are the norm. So save yourself and do the right thing for your client by referring the file on. You will be rewarded at the end of the day without having done the hard work or laying out the disbursements.

And for those of you who are like me and handle large volumes of personal injury files, there really is enough business to go around. There is no need to try and get business in the door by making promises you cannot live up to, and potentially open the door for negligence claims and Law Society investigations.

When I teach practice management courses to lawyers and law students, I always say that the law part of being a lawyer is easy. If you can get clients in the door, and manage their expectations, you’re 80 per cent of the way home. The initial client interview is when you set the tone for your client’s expectations. I would rather have a new intake walk out the door than get their signature on the retainer only by promising them what they want to hear.

Choosing a personal injury lawyer

When choosing a personal injury lawyer, you may well be tempted to select the lawyer who promises to get you the most amount of money in the least amount of time. Resist your temptation to make your choice in that manner, as you will surely be disappointed at the end of the day.

The two most common questions I am asked by potential new personal injury clients (and my answers) are:

  1. How much money is my case worth? (I don’t know).
  2. How long will it take until we settle? (I don’t know).

You may advise me that another lawyer (or worse, your friend who had his own personal injury case) told you your case was worth a particular amount, and want to know if I will get you that or more. I will tell you, without knowing any of the facts, that the other lawyer (or your friend) is wrong. This is simply because at the initial client interview it is impossible to know. And you should be wary of any lawyer prepared to answer those questions with any certainty.

I will only know at the beginning of your case what you tell me. I will not have heard the position of the other party you wish to sue. I will not have reviewed your medical history. I will not have had the benefit of reviewing your income tax returns or other supporting basis. What you tell me is less important than what the actual documents prove.

There are many factors that go into determining the value of a personal injury case. Assessing damages in a personal injury case is more art than science; oftentimes it appears to be abstract art at that.

Here are just some of the factors at play in determining the value of your lawsuit:

(a) The nature and extent of your injuries. Under the Insurance Act in Ontario, not all injuries are compensable. The law expects that some injuries, or some level of pain, is something you will simply have to live with and for which nobody has to compensate you. Recent case law from the Superior Court of Justice indicates that the extent your injuries must rise to in order for you to be compensated is on an upward trend. This is good news for insurers, but bad news for you when you show up at my office and think your sore neck and back pain is worth six figures.

(b) What your own medical practitioners write in their notes about your injuries. For example, you may feel constant pain, but your family doctor may use words such as “minor” in her clinical notes. This will definitely hurt your case. Sadly, soft tissue injuries that cause real pain do not show up on diagnostic imaging or other objective tests.

(c)  How often you attend for treatment. Many of my clients stop going to doctors and rehab clinics after a few months either because (i) the treatments are no longer effective; (ii) they simply do not have time: or (iii) they can no longer afford to cover the out of pocket cost of non-OHIP covered treatments, such as physio and massage therapy. Your failure to continue treatments for whatever reason may impact what an insurer has to pay at a later stage in the proceeding.

(d) If you are claiming lost income, the amounts on which you filed and paid tax in previous years. This is especially acute if you are in the service industry, as a large portion of your real income is derived from tips, yet your income tax returns rarely reflect this; similarly with self-employed small business owners whose true income loss is significantly more than would appear from the pre-accident income tax returns.

(e) The statutory deductible. The Insurance Act mandates that if your personal injury case arises from a car accident (as opposed to a slip and fall), the first $30,000 in damages for pain and suffering is deductible. This deductible is actually increased for accidents after August 1, 2015 to approximately $36,500. This means simply that the insurance company does not have to pay any amounts up to the deductible. Since the majority of soft tissue injury cases are worth less than $75,000 for the pain and suffering component, you can see how this deductible has a very real impact, often to the point of deserving parties obtaining nothing more than a negligible amount.

(f)  Your own evidence at examination for discovery or trial or in statements given to doctors or insurers.  What you tell me is less important that you eventually state “on the record”.

Also keep in mind that what you think of as the value of the case is your net in pocket, versus the actual value. Lawyers who will try to tell you what your case is worth often neglect to advise that this is a top line amount, without mentioning the deductible.  Most importantly, from whatever amount the insurer pays, legal fees of about 30-35% (plus HST) will be deducted by your lawyer. In addition, disbursements incurred by your lawyer are over and above the fees. Disbursements are those amounts I pay out of pocket to third parties in order to advance your lawsuit (court filing fees, medical records/reports, transcripts, mediation fees, to note just some examples). It is not unusual for me to incur several thousand dollars for a case worth only $20,000.

Then there is what I call the wildcards. These have nothing to do with your injuries or the law.

  1. The insurance company we are suing. Some insurance companies have taken a very hard line on all cases where the injuries are only soft tissue and/or which do not have significant provable lost income attributable to the injuries. One such insurer regularly states to plaintiff counsel that they will pay their defence lawyers $100,000 before they will pay the injured plaintiff $10,000. They have been successfully following through with this threat for several years now. The days of insurers paying a little to save a lot are gone.
  2. The particular adjuster who is responsible for deciding how to handle the file. Even those insurance companies which are settlement minded employ certain adjusters who have a mindset that they would rather force us to the door of the courthouse.

As for the length of time, no matter how fast my office works to move your case forward, I may be stymied by the bureaucracy of a large insurance company, their lawyer’s schedule, and the inherent systemic delays of our court system. Thus, while cases can settle in as little as 6-12 months, or drag on for 8-10 years, most fall anywhere in between. The reality is that there are many factors at play, including those noted above.

For all those reasons, you can understand why it is almost impossible to give you an accurate picture of how your case will shake out when we first meet.  As such, resist the urge to hire the lawyer who promises the largest payout. Instead, make sure your lawyer seems like he or she will empathize with your situation while also having the experience to give you the right advice at the right time.

Another factor to consider in hiring a personal injury lawyer is to make sure the lawyer is actually experienced in the area. I know of numerous family and real estate lawyers who will dabble by taking the occasional personal injury case. These individuals lack the requisite knowledge to properly assess your case, the experience to manage your case in an appropriate matter, and most importantly, the business relationships with insurance adjusters and lawyers to get cases settled.

One final piece of advice if you are planning on hiring me or another personal injury lawyer: be prepared to listen to our advice. It may not accord with what you want to hear or think is fair and just. But by making the wise choice in the lawyer you hire, the advice you will receive will be the best your money can buy.

Stay Off Social Media to Keep Credibility Intact

Despite how common it now is to see orders for the production of material from social media sites — with the content to be used as evidence — plaintiffs continue to let their guards down online, putting their credibility in danger, says Toronto personal injury lawyer Darryl Singer.

One recent case, Tambosso v. Holmes, 2015 BCSC 359 (CanLII), saw a woman’s claim for hundreds of thousands of dollars in damages largely rejected by a judge who found the contents of the woman’s Facebook page to be “completely inconsistent” with her testimony.

The woman was suing for damages as a result of two car accidents — one in 2008, the other in 2010. The case details claims of several injuries allegedly suffered by the woman, including psychological ailments such as “post-traumatic stress disorder, depression and mild traumatic brain injury,” reads the decision.

Evidence put forward by the defence included more than 100 pages from the woman’s Facebook account, showing her in numerous social settings with friends.

“I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a ‘homebody’ whose ‘life sucked’ and ‘only had friends on the internet,’” Justice Robert W. Jenkins writes inTambosso.

Singer, who was not involved in the case but commented on the topic generally, says there was a time when an individual’s online persona didn’t play a role in the courtroom — but that time is over.

“It’s standard practice now when clients go to discovery for them to be asked whether they have a Facebook account, a LinkedIn account, an Instagram account, a Twitter account. It’s standard for them to be asked not to delete anything from that day forward, and they may or may not be asked to produce copies of certain photos,” says Singer.

That said, blanket access to a Facebook page is not the norm, as discovery is not meant to be a “fishing expedition,” adds Singer.

“What I tell my clients from the day they come into the office and retain me is you need to be very, very careful about what you post on social media if it’s inconsistent with what you’re going to say under oath,” he says. “If a client says they used to go out dancing every week but can’t do so since their accident, but Facebook photos show they’ve been out every second weekend at clubs with friends, that’s going to harm their credibility and destroy the case.”

In fact, Singer says it’s best if plaintiffs refrain from posting altogether.

“It used to be that insurance companies would hire private investigators to determine that things you say you can’t do you’re actually doing — and they still do that — but now sometimes all they have to do is look at social media accounts,” he says.

Privacy settings do not always mean a post will remain private, adds Singer, who says there is “always a way” the page can be accessed.

The digital age has not necessarily changed Singer’s tactics in handling such cases, but social media “adds an extra layer” of information to warn clients about.

“We tell them they may be followed by a private investigator, and now we tell them about the risks of social media. I don’t think it’s any different — it’s just a digitized version of the analogue form, which was a private investigator following you in a car,” he says. “People can be incredibly careless. They think they’re only posting it for friends. I’m constantly amazed at how many people let their guards down.”