All personal injury lawsuits in British Columbia don’t proceed exactly the same and on the same timeline. That said, most lawsuits have similar steps along the way. Here’s some of the common steps you could expect when advancing a personal injury claim, including an ICBC claim.
The lawsuit process can last anywhere from 12 months to several years – depending on the nature of your injuries, how you were injuries, and your recovery, to name a few factors.
1. Hiring a lawyer
Although you don’t have to hire a lawyer to advance a personal injury claim, it’s a good idea to at least talk to a lawyer about your case. If you hire us, then we’ll ask you all about how you got hurt – the when, where, who, and how.
Once you us, we will need to collect information about you. What’s collected depends on your circumstances, but expect that we’ll collect your medical information, ICBC file, employment file(s), tax returns, police file, and hospital records. Again, there may be much or more that needs to be collected in order to advance, assess, and build your case.
From the time you hire us, we take care of all your paperwork and all communications with the other side, including ICBC.
2. Filing your action in court
Depending on the amount of damages you’re entitled to, your case may be brough in the Supreme Court of British Columbia or Small Claims Court (up to $25,000). Your action is filed in Supreme Court by filing a Writ of Summons followed by a Statement of Claim. In Small Claims, your action starts by filing a Notice of Claim. In both courts, the Statement of Claim and Notice of Claim sets out when your injury occured, how it occured, who is at fault and what they did wrong, your injuries, and your damages.
In Supreme Court, if you file an action, you are the plaintiff and the other party is the defendant. In Small Claims, if you start an action, you are the claimant and the responding party is the respondent.
After your claim is filed in court, the defendants (ICBC if the defendant(s) were insured) will file a Statement of Defence. which answers your claims put forward.
3. Document production
In British Columbia parties to a lawsuit must provide eachother relevant documents. In a personal injury case this includes your relevant medical records and much of the documents set out in # 1 above. Only privileged documents need not be produced – this includes communications with your lawyer and documents generated for advancing your lawsuit.
4. Court applications
Sometimes we or the other lawyer may have a dispute about document production or some other procedural aspect of your case. This isn’t unusual. Rather than wait until trial, the us and the other lawyer(s) can go to court by way of an application that is heard by a judge. Sometimes this procedure doesn’t happen at all, in other cases, many applications are made.
5. Examination for Discovery
Before trial, we get an opportunity to ask questions of the defendant(s). The answers are under oath and transcribed by a court reporter. Likewise, the other party’s lawyer can ask you questions relevant to your claim – including asking about the documents that were provided. An examination for discovery can last for 30 minutes to several days. Most times for the plaintiffs, this lasts 2 to 4 hours.
Note that in Small Claims there are no examination for discovery.
6. Offers to settle and negotiation
Usually, after examinations for discovery, one or both sides will make an offer for settlement. Negotiations may ensue. Often cases settle, sometimes they don’t.
7. Mediation
Sometimes one or both parties propose a mediation. Mediation is where all the parties meet in an “off the record” setting to negotiate. A mediation is usually held at a neutral location such as a hotel conference room or similar facility. A mediator presides over this event. The mediator is chosen by consent of both parties’ lawyers. The mediator has no interest in the outcome – she or he is there to act as a liaison between the parties and to facilitate negotiation.
8. Preparing for trial
If the case doesn’t settle, then we put together your case for trial – preparing your witnesses and documents to present your case in court.
9. Trial
Your trial could last for 1 day, or go many weeks, depending on the complexity and issues involved. As the injured person, your case is put on first. Each of your witnesses, including your doctors, if any, may be cross examined by the other lawyer(s). The other side may or may not have any witnesses. Typically you’ll know before hand if the other side has any witnesses. Your trial concludes with closing statements made by all lawyer(s).
Your trial may be decided by a judge or a jury. Note that a jury isn’t an option in Small Claims or some “fast-track” options in Supreme Court. If a judge decides, it could take anywhere from a day or two to several months. If a jury decides, it could take a couple of hours to several days.
10. Finalizing your claim
If there is no appeal, you’ll receive your funds fairly shortly after a court decision. We’ll take care of the final paperwork for you and see that you get the compensation due from the court decision.
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