The time required to complete your matter or the timing of the various steps in a lawsuit is difficult to predict. It depends on many things, including the following:
• How soon your treating health professionals are able to provide reasonably certain prognoses about your injuries;
• How quickly and how well you recover from your injuries;
• How quickly we are able to receive the documents we require;
• How busy the schedules of courts are; and
• The availability of other lawyers, mediators, witnesses, or experts.
A lawsuit can take up to two years or longer to settle or go to trial. However, most lawsuits go through the same steps, although not always in the same order. Some cases skip some steps, and some steps are repeated many times over. The steps listed here are the main steps that occur in a lawsuit. They will give you a general idea of what to expect:
Consulting with the Client and Gathering the Facts
With our client’s help, we gather all the available facts concerning the claim, including interviewing the client and interviewing and taking statements from potential witnesses. This is an important first step as the matter of whether the case is still within the limitation period is confirmed. Most causes of action in Ontario require a proceeding to be commenced within two years. We also gather records from you and obtain authorization from you to acquire further records from others including hospitals, physicians, employers, government agencies, and insurance companies as needed. We sometimes hire investigators or other experts to assist us in assessing the liability or damage issues in a case.
Review of the Law
Once we have an adequate appreciation of the factual basis of a potential claim, we review the law applicable to the facts as necessary. We then are able to provide our preliminary legal opinion about what the likely outcome of the proposed lawsuit would be, and how much recovery our client may potentially expect to receive as compensation. We of course continually review the file and the law as the case progresses, as other circumstances which may arise will have a bearing on the eventual outcome of the matter.
Starting the Lawsuit
We begin the lawsuit by preparing the necessary court documents and filing them with the court office. This means the court stamps all copies of the documents, keeping one copy for their official record. We then deliver filed copies to the defendant’s lawyers or have the copies served personally upon the defendant.
After we start a lawsuit, but before trial, we or the defendant’s lawyers sometimes need to have the court decide certain matters. Applying to court to ask for a decision on certain issues is called a motion. These motions are usually about how the lawsuit should be handled. For example, we might ask the court to order that the defendant show us a particular letter or document that the defendant would rather not divulge. The court will hear the arguments of the lawyers for both sides and make a decision and then an order accordingly.
Examination for Discovery
After gathering the facts, either we or the defendant’s lawyers arrange an examination for discovery. At the examination for discovery, we question the defendant under oath about the incident. We also ask the defendant to show us what relevant documents the defendant has, and to tell us about all relevant documents he or she has ever had or had access to. In return, the defendant’s lawyers also question our client about the incident and the injuries he or she suffered. We give the defendant copies of the documents we have that relate to the lawsuit, and our client describes all relevant documents he or she once had, or had access to. These typically include all the medical records concerning not only the injuries suffered, but also the previous medical history. Employment and income tax records are also routinely provided as they are usually relevant in assessing damages.
Mediation, Negotiation and Settlement
When it is appropriate, we talk with the Defendant’s lawyers to see if they will settle the claim. A settlement is an agreement between the parties to a lawsuit which sets out how they will resolve the claim. Frequently a settlement can occur at a mediation, which is a compulsory step in Ottawa, whereby the parties and their lawyers meet and discuss the file together. This is done with the purpose of negotiating a settlement and is done with the assistance of an independent, impartial and accredited mediator agreed upon by the lawyers. The mediation may be held before discoveries if the lawyers for both parties believe that the mediation can be successful. If the claim is successfully settled, it does not go to trial, and the matter is disposed of in writing and filing documents with the court after the payment of damages.
Preparation for Trial
We prepare the case for trial, including getting all the necessary documents together for presentation to the court, arranging for witnesses to attend, and preparing any legal opinions and arguments. Often times, there will be a pre-trial held with the court where the issues in the case will be discussed and settlement possibilities further discussed with the court providing its views about potential outcomes if the case were to proceed to trial.
We act for our client at the trial. When the judge has decided the case, which could be a few days or weeks after the trial, we prepare the court order for the judge to sign, or approve how the other lawyers write up the judgment to make sure it is correct.
Completing the Claim
We do all the work necessary to complete the claim. This includes giving our client money from the settlement or judgment, after we have deducted our fees and expenses. However, it does not include starting new steps such as enforcing or appealing a court judgment. To enforce a judgment means to start proceedings to force the Defendant to actually pay what he or she has been ordered to pay. Typically this does not arise as most defendants we claim against are insured. To appeal a judgment means to start work to get a higher court to change the original court’s judgment.