The Litigation Process
"We advocate on behalf of our clients to obtain the best care available. While the first priority is to put together a winning case, we consider it our duty to also assist in the recovery process however we can. "
Daniel Corrin
Consultation
A number of factors must be evaluated in order to determine whether or not you have a legal claim, and to determine whether it is appropriate for our office to handle your claim.
Primary consultation
When you contact us, we will arrange a preliminary consultation by phone or in person (free of charge), including, if appropriate, meeting you in the hospital or at your home.
We will discuss three issues:
- the nature of the injury
- proof of liability
- care and rehabilitation in place
Personal interview
If appropriate, after reviewing the information from the primary consultation, we will meet with you in person for a comprehensive interview. Then, we will review all the information that you have relating to the claim. This may include the police report, accident photos, medical records and reports, medical bills, correspondence with the insurance company, and any other information relating to the injury. Or it may include very little information due to the recent occurrence of the injury.
Hiring a lawyer
Should you decide that you want us to handle your claim, and we agree to accept your case, we will negotiate a fair fee agreement with you. We can work with families to have a family member legally appointed to act on behalf of their injured loved one, who are unable to manage their affairs as a result of the severity of their injuries or their young age.
When we act for children our fees must be approved by the Public Guardian and Trustee of British Columbia.
If you are still unsure whether or not you should seek legal representation read our article: “Six Reasons to promptly retain a lawyer after a family member suffers a severe brain injury”.
Limitation periods
A ‘limitation period’ is the period of time, within which a lawsuit must be filed. Calculation of a limitation period is a complex legal process. The period can be as short as 6 months or can be extended for many years, as in the case of an infant or adult who lacks capacity or a person who has no knowledge of the wrongdoing until receiving legal advice long after the event.
Limitation periods vary in other jurisdictions, but 2 years is common in B.C. subject to numerous rules and exceptions.
When it comes to deciding about legal action the best rule is “the sooner the better”. It is therefore important that the injured party or family member consult with a lawyer at the earliest possible opportunity to ensure that limitations do not pass and evidence is not lost.
Paying for legal services and expenses
Initial consultations are free of charge.
Our firm operates on a percentage (contingent fee) basis and we are only paid for our services when we have successfully resolved the claim, by settlement or at trial. The percentage depends upon the circumstances of the specific case and is agreed on by the lawyer and client.
When we act for children our fees must be approved by the Public Guardian and Trustee of British Columbia.
In most cases, there are substantial expenses for medical reports and other expert reports, which are vital to the legal case. We pay for all the necessary legal expenses incurred during the litigation process and are reimbursed by the client after their claim is resolved.
If you are interested in finding out what we would charge in a particular case, please contact us.
Case Managment
Diagnosis and care review
Our first priority is to review the survivor's diagnosis and care to ensure that they are receiving the best possible rehabilitation and recovery assistance.
Managing your entire rehabilitation
For survivors with catastrophic injury, the appointment of a legal guardian or “committee” may be necessary. TBI survivors may not be legally competent to manage their own affairs or to make decisions in their own interest. In these cases someone else can (and should) be appointed to make decisions on their behalf. Often it is a family member or trusted friend who will act as committee, but it can also be the Public Guardian and Trustee, or even a trust company. This process allows someone to act on behalf of a loved one who may not be able to cooperate in the legal process.
Appointing a professional case manager or rehabilitation coordinator may also be necessary. These professionals act as advocates for the survivor, to ensure the survivor is properly cared for, to help reduce pressures on the family, and to maintain a cohesive, consistent approach to rehabilitation and care. By providing this support, they help ease the stress and strain already felt by families of brain injured individuals – allowing them to make informed, timely decisions.
Review of accident and circumstances
Our legal team go to great lengths to gather complete and accurate information relating to the accident or circumstances resulting in the injury. This includes contacting witnesses, police, paramedics, and treatment personnel.
A comprehensive review of all medical, insurance or other pertinent records is conducted. Where necessary, the services of trained investigators and an engineer, or other expert, may be engaged to help recreate and understand how the incident happened and who is at fault.
“Throughout the litigation process our team ensures that you are informed of all the legal and medical situations and that you are well-prepared for settlement negotiations or a trial.”
Life Care Planning
It is imperative that the utmost attention be paid to future planning and to attaining an appropriate settlement for the survivor's life care.
Planning for life care, predicting the financial costs to support a survivor and providing for the best quality of life possible for the remainder of his or her life, is a complex matter. Without professional guidance, it is easy to underestimate these costs.
Planning considerations
Our firm retains the services of professional life care and financial planners. The purpose of the life care plan is to anticipate and project future needs. These may include:
- health and strength maintenance
- pharmaceutical and medical supplies
- architectural renovations and transportation
- aids to independent living
- adjustment, marriage and family counseling
- education, career and leisure time planning
- future medical and surgical treatment
- potential complicating health problems and associated treatment
- home or facility care and retirement
- home furnishings and accessories
- diagnostic testing and educational assessment
- vocational and educational planning
- orthotics and prosthetics
- projected therapeutic modalities
We also use financial specialists to determine how best to manage resources to provide for the future needs of the survivor and ensure that the future well being of the survivor and his or her family is fully looked after. They look at immediate costs, future costs, available resources, and make recommendations on how best to structure financial management.
This life care plan is also used in helping to determine the adequacy and fairness of settlement offers. It may also serve as a guide to the allocation of settlement funds.
Your settlement
The amount of your settlement will be determined by a range of objective and subjective factors, which may include:
- past and expected future income loss
- past and anticipated care and therapeutic expenses
- the amount of pain and suffering the survivor has endured as a result of the injury
- loss of enjoyment of life
- the injury’s impact on his or her abilities to think, remember, hear, see, communicate, move, and express feelings
- the injury’s effect on the survivor’s creative abilities
- the survivor's ability relate to others, to care for him or herself and to make responsible judgments.
At the end of the day, when we have tried everything we can to make it better - we recover the maximum dollars for your claim.
Who decides
We encourage our clients to participate fully in establishing the value of the settlement. We fully discuss all issues and important considerations and involve our clients in all decision making. Though there are general similarities, every brain injury is unique and in each case the considerations are different.
Determining how much
Arriving at the value of the settlement of a brain injury claim is a complex process. While the survivor's objective deficits and subjective symptoms will be taken into account, determining liability, and assigning fault are also crucial to such cases.
Factors influencing the settlement award include:
- Whether the injured person’s complaints are consistent with those normally produced by the claimed injury, or if they may be reasonably attributed to something else.
- Whether the medical evidence is compelling, and whether or not the court can be convinced that the injury is the only reasonable explanation for the survivor's condition.
- How the plaintiff presents as a witness.
- Whether the experts are strongly convinced as to the cause of the injury.
- Local attitude of the court toward brain injury cases.
- Local standard of living and other practical considerations.
- What test data and evidence may or may not be allowed into court (rules of evidence specify what is allowed).
Your feedback is appreciated.