Common Myths About Personal Injury Claims

As a result of the general lack of knowledge regarding the legal system, and perhaps the influence of television, one can readily identify many myths related to litigation – in particular litigation related to personal injury claims. It is far beyond the scope of one short article to address them all, but I will endeavor to address some of the more common myths I hear about on a frequent basis.

Let’s start with one of the most common – it costs a lot to hire a lawyer. Perhaps many get this impression by how lawyers are portrayed on television and in the movies – high end cars, big houses and expensive watches. Someone must pay for that, right?

This portrayal of lawyers is largely false, and in any event, at least with respect to personal injury litigation, any reputable lawyer will not charge anything unless and until you recover money for your claim. While it is possible there are some exceptions to this general rule, if you have suffered an injury in Ontario you should have no problem finding a lawyer to take your case for no money up front – usually referred to as a contingency fee agreement.

If any lawyer doing personal injury litigation asks for money to start the claim you may want to consider consulting another lawyer.

This leads to another common myth – you do not need to hire a lawyer. This is one myth that, while technically correct (a person can represent themselves in court on any matter), is still nonetheless a “virtual myth”. Personal injury litigation is complicated. Insurers always have lawyers. Without knowing what you are doing, there is simply no practical way you will ever be able to achieve the same recovery, all other things being equal, as you would have had you hired a reputable personal injury lawyer.

The old lawyer maxim “a lawyer who represents himself has a fool for a client” is even more appropriate where you, not being a lawyer, choose to represent yourself. While the choice is yours to make, choosing not to hire a reputable personal injury lawyer is a mistake that will cost you.

We can move on and talk about trials now – I will deal with two myths that go together. I think these arise because of what we see on television – on the legal dramas. A client walks into the lawyer’s office with some type of complaint. The lawyer takes the case and says, “we will file today”. A day goes by, and the lawyer is arguing the case in court – including calling a few witnesses, seemingly with no time to commence a lawsuit and no time to even speak to witnesses. I would note that one rarely sees any negotiations on television dramas – it is off to court we go, with no waiting.

Nothing could be further from the truth. Let me address the time first. A typical personal injury lawsuit takes several years. There are many procedural steps (far too many to get into here). In addition, the Courts are understaffed and overworked.  In can sometimes take several years just to get a trial date.

The Court’s schedule is not the only reason that a lawsuit might take several years. It sometimes takes people a long time to get to the point where their injuries have plateaued such that doctors can reasonably predict how they will fare in the future. One must wait for their injuries to plateau (in almost every case) before a resolution can be considered.

That brings us to the likelihood of a trial. Contrary to what we see on television, almost all personal injury cases settle before trial. It is impossible to guarantee which cases will settle. However, the settlement rate in all of Ontario likely exceeds 95% in personal injury cases, perhaps even higher. It is highly probable that any case you have will resolve with a settlement and the chances of a trial are remote.

I will finish with one that is perhaps less common, but one which seems to cause more trouble for people. Pretend you are riding in a car with your friend. Your friend runs a Stop Sign – another car crashes into the passenger side of the car, trapping you in the vehicle.

You suffer significant injuries. You see a lawyer and are told that your friend is at fault, and you must sue your friend. You have been close for years and do not want to take your friend’s money.

While it is true that you will have to sue your friend, in almost all cases, you will never be taking your friend’s money. That is part of the protection your friend bought when they purchased auto insurance. The insurance company will appoint a lawyer to defend them (at no additional cost to your friend) and pay any settlement or judgment up to the limits of the policy. It is not coming out of your friend’s pocket.

While it is possible that your claim will exceed your friend’s limit of insurance, you always have the option not to try and collect that money, and as a result you always have the choice to collect from your friend.

There are however some exceptions to this – you need to speak to a reputable personal injury lawyer.

There are likely as many myths as there are ways that people can find themselves injured as the result of someone’s negligence. If you are injured, you need to speak to a reputable personal injury lawyer. Only then will you know whether what you think is true – or whether it is a repeated myth.