What do I need to know about the legal process?
Answer: At Aaron Waxman & Associates, we believe that our clients should understand how the legal process works.
We want clients and prospective clients to gain an understanding of what is involved in a lawsuit.
The Initial Interview: When you are seeking out a legal representative, you should consider the qualities that are most important in a lawyer:
You should consider the following:
As a client, you should come prepared to an initial meeting, in order to help your lawyer commence the lawsuit as soon as possible:
Gathering information: Once you have signed the retainer agreement and signed authorizations that allow your lawyer to request various documents, your lawyer will request documents such as:
Initiating the Lawsuit: Your lawyer will commence a lawsuit by preparing a Statement of Claim and issuing it in court. A Statement of Claim is a basic outline of the statement of facts between the client and the insurer/defendant.
The insurance company/defendant will appoint a lawyer once they have been served with the Statement of Claim. The defendant has to provide a response, known as the Statement of Defence.
Document Disclosure and Discovery: After the court documents have been served, your lawyer will forward copies of all documents that are not privileged to the defence lawyer (medical documents, employer, tax returns). This is known as documentary disclosure. Your lawyer prepares an Affidavit of Documents, which is essentially a list of all the documents that are producible. The documents are referred to as “Schedule A” documents. Schedule “A” documents are exchanged between parties before examinations for discovery.
Discovery is a step in the legal proceeding that provides the defendant’s lawyer with an opportunity to meet you and discuss your claim with you, and see you as a person, not just as a claim number.
Your lawyer will prepare you before the discovery and give you a sense of what type of questions you will be asked.
During discovery, the defence lawyer requests information and documents and promises are given to request and provide same, known as “undertakings”.
Some important things to remember about the discovery process:
Surveillance: You should be aware that the insurance company has the right to conduct surveillance any time without your knowledge. Many clients are concerned that they may be watched by the insurance company while their claim is in litigation. Surveillance is something you should be aware of but it is recommended that you continue on with activities you are able to engage in and refrain from activities that you have advised you are unable to do, and that you are medically advised not to do. Be consistent and honest with your limitations.
Medical Appointments: Your lawyer will advise you of any medical appointments that you will have to attend whether set up by your lawyer, by your insurer or by defence counsel. You must attend the appointments as scheduled.
It is important to attend scheduled appointments and to cooperate with assessments scheduled by your insurance company and defence counsel to show you are a willing participant in the legal process.
Mediation: After the discovery is over, the parties will discuss settlement possibilities. One possibility is a private mediation.
A mediator is a neutral third party whose job is to facilitate settlement by encouraging the parties to reach a common settlement ground.
To prepare for a mediation, your lawyer may send you for a medical assessment.
A mediation is an opportunity for the plaintiff and his or her lawyer to meet with defence counsel and the representative (s) of the insurance company. Your At the mediation, all parties will make oral submissions and exchange written mediation memoranda.
Pre-Trial: If your case was unable to settle at a private mediation, the next phase is to arrange a pre-trial conference. A pre-trial judge will be assigned and will try to help the parties resolve the case. The plaintiff and the insurance company representative must attend with their respective lawyers.
A pre-trial can last for an hour or longer, depending on the judge and jurisdiction.
Pre-trial memoranda are exchanged and provided to the court.
Trial: A trial is very expensive and is very risky. There is no guarantee or way to predict how much your case will settle for at trial or that you will win at trial.
The party that “loses” at trial has to pay a portion of the other party’s legal fees.
If you or the defendant disagrees with the trial judge’s decision, it can take years for the case to be heard in the Court of Appeal of Ontario and the Supreme Court of Canada.