When you’re involved in a motor vehicle accident, it’s not your insurance company that’s required to look after your best interests. Rather, it’s your personal injury lawyer that acts on your behalf to ensure you return to health and receive the maximum compensation available. It’s also important to have an expert in your corner when navigation the world of litigation.
For starter, if you are involved in a motor vehicle accident, you will have two years from the date of the accident to file a claim with the Alberta Court of Queen’s Bench. The document that needs to be filed in order to begin the litigation process is called a Statement of Claim. Your lawyer will draft and file the Statement of Claim on your behalf. Once a Statement of Claim has been filed, you will become a plaintiff and the other party becomes the defendant. The plaintiff has one year from the filing date to “serve” the defendant with the Statement of Claim. Your lawyer will take care of this for you as well. Once the defendant has been served with the Statement of Claim, they will typically contact their insurance company, who will then hire a lawyer of their own to file a document called a Statement of Defence. If the defendant is served in Alberta, they will have 20 days to respond to your Statement of Claim. The lawyer for the defendant will serve this document to your lawyer. You can request copies of these documents at any time.
Once a Statement of Defence has been served, your lawyer will have to provide “disclosure” to the defendant’s lawyer within three months. Disclosure can include any documents that are relevant to your claim, such as your medical records. These documents will be listed in an Affidavit of Records, which your lawyer will send to the other side for their review. The defendant’s lawyer will then have two months to serve your lawyer with their own Affidavit of Records and relevant documents.
Once each side has provided their disclosure, the next step is often scheduling a Questioning. This is a normal part of the litigation process and is an opportunity for the lawyer for the defendant (usually the other party’s insurance company) to ask you questions about your injuries. The Questioning will often take place at your lawyer’s office with a court reporter present. The court reporter will type up and create a transcript of the questions that are asked and the answers that are provided. It is important to be truthful during the Questioning, as anything you say is “on the record” and this information can later be brought up if your matter goes to trial. During the Questioning, the lawyer for the defendant will question you on your injuries. Your lawyer will then question the defendant. The main objectives are determining who was at fault for the accident and to what extent, and to determine the extent of your injuries. This information is used to assign a monetary value to your claim.
During Questioning, the lawyer for the defendant may request that your lawyer provide them with further documents or information. These requests are called “undertakings”, are recorded in the transcript, and must be completed within a reasonable time after the Questioning. Your lawyer may require your assistance in obtaining the requested documents or information, and it is important for you to provide this information to your lawyer as soon as possible to avoid unnecessary delays. Commonly requested “undertakings” are to provide the other side with income tax information, employment files, medical charts, information on extended health benefits received, and information on any long or short term disability benefits you may have received as a result of the accident. Once your lawyer provides the other side with your undertaking responses, they may request to have another Questioning based on the new information they were provided. This will be very similar to the first Questioning.
At this stage, your lawyer will usually prepare a settlement proposal (if they haven’t already) and will begin to negotiate a settlement amount with the lawyer for the defendant. These negotiations can go on for some time. If the lawyers are unable to come to an agreement, the next step is mediation.
Mediation is a form of alternative dispute resolution. The defendant will be present (usually the adjuster for the insurance company) with their lawyer; you will be present with your lawyer, and a mediator will preside over the mediation. Mediators are often lawyers themselves. Mediation is confidential and non-adversarial, meaning it is a more “neutral” process of reaching an agreement. The mediator will focus on the needs of both parties and facilitate discussions on acceptable outcomes to meet those needs. The advantage of mediation is that the outcome remains in control of the parties, as opposed to the courts. Settlements can often be reached the day of the mediation, or shortly afterwards. After mediation is completed, both the plaintiff and the defendant will have a better idea of what the other side wants and what an acceptable outcome would be to them.
If settlement is not reached, there may be further negotiations between the lawyers. If the lawyers are still unable to come to an agreement, the matter may go to trial. Trials are often booked years into the future, so there can be a great deal of time for both sides to continue negotiations. The timeframe for litigation varies from lengthy to settlement that happens early on. Some matters are settled before a Statement of Claim is filed. Every case is different, which is why you should speak to a lawyer to ensure you are aware of every option you have available to you.
Questions About Your Claim?
For a comprehensive view of the steps in the litigation process check out our other posts on the subject.
Ten Steps in the Litigation Process
- Litigation Step 1 – Filing a Statement of Claim
- Step 2 – Serving a Statement of Claim
- Work With Insurance Adjuster vs. Statement of Defence
- Preparing & Serving an Affidavit of Records
- Litigation and Questioning (a.k.a. Examination for Discovery)
- Attending Questioning by Defence
- Attendance at a Questioning on Undertaking Responses
- Attend at Independent Medical Examinations and Defence Medical Examinations
- Prepare & Attend Mediation – The Mediator Role in MVA Litigation
- Prepare and Attend Trial in Injury Law Litigation