There are some basic deadlines in personal-injury claims. The first deadline that comes up is the requirement to file a statement of claim. This is required within two years of the date of your accident. A statement of claim is simply a document that sets out :
1. the date of the accident;
2. the nature of the accident;
3. the people involved;
4. a description of the injuries; and
5. the sum of money claimed (the reality is that the sum of money claimed is largely irrelevant at this stage as the value of the claim will very much be a shifting target as the nature of the injury injuries becomes clear and the extent of the future problems is known.
The next formal part of the legal phase is the service of the Statement of Claim. There is a one year gap between the time that the Statement of Claim needs to be filed and when the statement of claim needs to be “served “on the defendant (i.e. the other driver). Your lawyer will hire a “process server” to “serve” the Statement of Claim on the individual who was driving the other vehicle as well as the owner (if the owner of the vehicle is somebody else). The people that are served with the Statement of Claim will, assuming that there is insurance in place, notify their insurer. Their insurer will hire a lawyer on behalf of the insurance company to defend the claim. In Calgary, there are approximately half a dozen law large firms that typically defend insurance companies. Typically plaintiffs are represented by sole practitioners or small law firms.
Under the Rules of Court, a Statement of Defence must be filed and served on the plaintiff‘s lawyer within 20 days of the Statement of Claim having been served on the defendants. However, it is not unusual for that time period to be extended. Where the plaintiff is still getting actively treated and/or awaiting specialist appointments or imaging (e.g. MRI’s) there is no rush or urgency for the next steps the litigation process to be taken.
Once the Statement of Defence has been filed and served on the plaintiff’s lawyer, the plaintiff is then required to provide an “Affidavit of Records” which is a document that lists all of the papers that the plaintiff has that relate to his or her recent medical history. The Affidavit of Records would list medical records of the plaintiff for the three years (or so) prior to the accident as well as medical records since the accident. The insurance company lawyer will look for documents that suggest the current complaints are similar to complaints that the plaintiff had in the years leading up to the accident.
After the exchange of the Affidavit of Records, the next step is to have a “Questioning”. The Questioning is usually at the plaintiff lawyer’s office and begins at 10 AM and usually runs until either mid or late afternoon. Your lawyer should provide you with instructions on what to expect, a list of typical questions and other advice on how to prepare for the Questioning. Typically the defendant driver is questioned about the circumstances of the accident and then the plaintiff is similarly questioned about the accident. The defendant driver would then usually leave and the plaintiff is questioned about his or her medical history, injuries from the accident, treatment, loss of income and impact on day-to-day life from the accident.
Also at the Questioning is a court reporter who types on a special machine to create a transcript of everything that is said by the people in the room. An interesting quirk of the Questioning is that the transcript that is created at the Questioning can only be used by the party who is asking the questions. In other words it is only the insurance company lawyer who can use the transcript of the Questioning of the plaintiff. Therefore, it is very important that the plaintiff understand that the Questioning is not an opportunity to “tell your story”. It is more important to know you don’t know. By this I mean that you are not required to volunteer any information nor are you required to guess or assume anything. If you know the answer then you should say so, but then stop. If you don’t know the answer, it is perfectly fine to say you don’t know, or you don’t remember.
Often, around the time of the Questioning, both sides send the plaintiff to their own doctors. If you were sent to doctors by your own lawyer, these are known as Independent Medical Examinations (or IME’s). If you were sent to specialists by the defence lawyer, these are known as Defence Medical Examinations (or DME’s). It is not uncommon for the defence to send plaintiffs to a very small number of doctors and specialists that the defence routinely rely upon. Your lawyer should be able to provide you with instructions as to what to expect at these medical examinations and how to conduct yourself.
There was recently and exposé by the Globe and Mail of how defence lawyers are using ‘tainted’ medical doctors in Ontario : https://www.theglobeandmail.com/news/investigations/doctors-insurance-independent-medical-examinations/article37141790/.
In the next post, settlement discussions and getting a trial date.