Written by: Sajjad Jaffer
If negotiations with the Defendant’s insurance company reach an impasse and a settlement cannot be reached, your lawyer will move to commence the litigation process. This entry is a sequel to my previous entry “The Personal Injury Process: What to Expect”.
Statement of Claim
The litigation process is commenced by issuing a Statement of Claim. A Statement of Claim is a Court document that sets out: a) the parties to the lawsuit; b) the relief sought; c) the incident; d) the injuries sustained; e) the allegations of negligence; and f) damages. Once the Claim is issued by the Court, it must be served on the Defendant. Service of the Claim has the effect of informing the Defendant and his insurance company that a lawsuit has been commenced and necessitates the involvement of their lawyer. Generally, the Defendant’s lawyer has twenty days from the date of service to respond to the Claim by delivering a Statement of Defence. If the Defendant does not respond to the Claim, your lawyer will likely move to obtain default judgment.
After the parties to the lawsuit have exchanged pleadings, documentary discovery takes place. Documentary discovery is a process whereby the parties to the lawsuit are required to disclose all documents relevant to the lawsuit. These documents are listed in a sworn document called “Affidavit of Documents”, which is served on the opposing party.
Examinations for Discovery: The Oral Discovery
The next step in the litigation process is an Examination for Discovery. An Examination for Discovery is a pre-trial process at which lawyers for each of the parties question the opposing party, under oath, about the matters involved in the lawsuit. It generally takes place at a court-reporting center. An official court reporter is present to transcribe all the questions and answers. This transcript can then be used at trial if there are inconsistencies between a party’s testimony at trial in comparison to the Examination for Discovery.
The importance of Examinations for Discovery should not be understated. It is very common for a case to settle following this procedure.
While it is impossible to predict with certainty the questions that will be asked of you at the Examination for Discovery, you can expect detailed questions in respect to your:
- Background: name, date of birth, date of marriage, names of children and their birth dates;
- Employment: duties, proof of earnings and tax information, pre- and post-incident employment, attempts to return to work, etc.;
- Health: pre- and post-incident health based on medical records from treating physicians and therapists;
- Incident: when, where and how the incident occurred; and
- Injuries: pre- and post-incident and ongoing symptoms.
Examinations for Discovery are of course more complicated than can be described here. Your lawyer will sufficiently prepare you for this procedure.
If the case did not settle following the Examinations for Discovery, the parties attend a Mandatory Mediation. Mandatory Mediation is a process whereby the parties to the lawsuit and their lawyers appear before a neutral mediator in an attempt to settle the dispute without the necessity of a trial. Mediators do not decide cases or impose settlements. The mediator’s role is to help the disputing parties communicate with each other in order to gain a better understanding of the interests of the parties and to find a resolution based on mutual agreement.
If the case did not settle at the mediation, your lawyer will attend a pre-trial settlement conference before a judge. The judge will hear submissions from the lawyers and try to reach a settlement. A judge at a settlement conference cannot force the parties to settle. It should be noted that the judge that presides over the settlement conference cannot be the same judge that presides over the trial.
Subject to an appeal, the trial is the final step in the litigation process. It is also the step least likely to be required. The vast majority of disputes settle before reaching trial.
For more information, feel free to contact one of our personal injury lawyers.
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