Anatomy of a Liability Trial - Part 1

In order to recover any money from a car accident in BC, your have to prove that the other driver was at fault for the accident.  Sometimes it is obvious and sometimes it can be downright contentious.  Even with 8 eyewitnesses, figuring out what happened can be surprisingly elusive.

The devil, they say, is in the details.  When I first became involved in this particular case, I did a thorough review of the evidence.  There were 2-3 witness statements from 8 witnesses.  Not all of the witnesses said the same thing between statements and some gave very opposite evidence.  

The police did, in my view, a poor job.  They took statements but failed to collect complete or even meaningful information at the scene.

Complicating matters, the private investigator we retained on this file was, in my view, incompetent.  He appeared to have had a story in his head of how this accident happened and his drawings did not match the words in the statements. He failed to obtain complete information.

I was brought into this case about 4 months before trial.  

To unpack this tangled mess, I made an imaginary intersection on my wall at work and used post-it notes to represent cars.  I included key information on the post-it notes and kept reviewing the statements until I knew every version and inconsistency by heart.  The whole process resembled a scene from good legal drama on TV.

The reality of what happened was closer to a good legal drama than reality for a lawyer most days (which to be honest is really quite boring most of the time).  In a moment of staring at my post-it note intersection, I developed profound clarity of what happened and how we were going to win this case.  It hit me like a hammer.  I knew what I could prove.  I knew the gaps in my evidence that I needed to tie off.  I knew exactly the path forward and I knew how to get there.

Part 2 - learn more about the details of this case

Embarking on yet another trial

Well, I have three judgements still outstanding for trials I completed for clients in October 2012, January 14th and 28th, 2013.  Fortunately the quick Court of Appeal decision in Li v. Newson upholding, for the most part, a decision of a jury in a 2011 trial or I would be awaiting 4 decisions. If I do not get a judgement soon, by the second week of March I could be waiting on 6 judgements!!!

With a week since my last trial, I am right back at it again for another trial starting later today.

I have to admit that such a trial schedule is demanding on my staff.  I have to thank my paralegals who handle the management of issues on files with such skill and thoughtfulness that I can solve a seemingly impossible amount of problems with little effort.  There is an incredible power that comes from working so closely with people that they know your response before you even have to say a word. Even more powerful is when you say the word, the response is half drafted before you even open your mouth or put pen to paper.  That is the character of a quality team and that is the character that defines my McComb Witten team.

I also want to commend the "A desk" legal assistants who have been labouring to put together back to back to back to back trials.  As a lawyer, we expect to have to work evenings and weekends when necessary.  I went into work this holiday long weekend and saw so many people stepping up to make things happen if felt like a regular work day.  That level of commitment is not typically expected of legal assistants, but is there in droves with our team.

Our "B desk" personnel are less experienced but eager to help in any way possible.  I've long heard that you can train skills but not attitude and with our current group of B desk staff we have an abundance of good attitude.  It makes it easy to invest in people when the people are quality people and so invested in the team.

Team is the ability for the sum to be greater than its parts.  Team is what we have at Mccomb Witten right now.  Without the hard work from my team, I would be sinking not swimming.

Thank you to all of my team mates at McComb Witten.  When the results come in, and they will come in, any success for our clients is owned by the whole team.  There is an energy at Mccomb Witten and that energy is infectious.  There is not a doubt in my mind that the spring of 2013 is going to define McComb Witten for years to come.

Hit and Run cases are complicated

There is no way around it; Hit and Run cases are complicated.  

The area of law that gives rise to a claim for personal injury and losses, such as out of pocket expenses and wage loss, is called Tort law.  Under Tort law which has developed through judges in what is called "the common law",  the injured person can sue the person that injured him or her (called in law, the Tortfeasor").  

What happens if the victim is unable to identify the Tortfeasor because the Tortfeasor fled the scene.  Under the common law, the victim has no remedies.  One cannot sue a Tortfeasor unless one knows who to sue.

This development in the law is very unsatisfactory.  It creates an incentive to flee the scene and leaves legitimate victims to suffer with no remedy.

To fix this problem, the government passed a law that modifies the common law.  The government passed law allows a resident of British Columbia to name ICBC in place of the unknown Tortfeasor.  The specific law is section 24 of theInsurance (Vehicle) Act and it is complicated. It is complicated even further because judges have interpreted the section in certain ways that would not make sense to someone not trained in this area of law (or in ways that do not make sense to someone who is trained in this area of law, but at least he or she knows the law even if it does not make sense!) 

The government and judges interpreting the legislation have made very strict rules on what a victim has to do in order to comply with the legislation.  I was once in front of a Registrar of the Supreme Court of British Columbia who was amazed at what was required and candidly admitted that he would not even know what was required of a victim to perfect (the legal word for meeting all of the requirements of the legislation) a claim under the hit and run provisions.

The law was complicated by the fact that ICBC was NEVER REQUIRED TO ADVISE A PERSON OF WHAT WAS REQUIRED.  This development in the law was really quite stunning to me.  Fortunately, a recent case has expanded the law in this area in a good way.  The case is Springer v. Kee.  

Keri Grenier, a lawyer in Kelowna, BC at the law firm Pushor Mitchell, has published an excellent blog post that I recommend to all my readers.  For your convenience here is a link:

Keri Grenier blog post

Thank you to Keri for putting word out about this issue and thank goodness some sanity has been inserted into the law on this issue.

Embarking on another trial

Well, I do not yet have reasons from my last trial and I am about to commence yet another trial, which is scheduled to start tomorrow morning.  

It is always interesting on the night before the start of any trial.  Mentally, I am tying off loose ends.  Making sure that I have learned lessens from past experience and executed on that knowledge.  Making sure that I am leaving as little as possible to chance.  Given that this weekend trial preparation coincided with NFL play off games, I cannot help but think that it must be how the head coach of a football team feels before a game.

Personally, I like to pay a lot of attention to my game plan.  However, just like a football game is played on the field, a trial occurs in a courtroom and it is a venue where unexpected things can occur.

When I was in my early 20s, I recall an older friend of my reciting to me:

Luck is simply preparation meeting opportunity!

Another win for the McComb Witten trial team

In October 2012 the McComb Witten trial team of Etienne Orr-Ewing and Meghan Neathway put together a solid case for a wonderful young woman.  Recently, Justice Voith published his reasons and our client was ecstatic with the results.

Link to the great McComb Witten trial result

Congratulation to our client.  It takes tremendous courage for an injured person to take a case to trial.  You are going up against the best lawyers that ICBC can bring to the table.  ICBC has seemingly infinite resources to scour your life to try to make you look dishonest or like you are hiding something.  The tables seem slanted in ICBC's favour, because if they lose it is just the drop in the bucket of a billion dollar insurance company.  If you lose, then it means that your entire claim might be lost or even worse...you might be left owing money to ICBC.  So, it takes courage.  Courage in your conviction.  Courage to trust your lawyers to help you tell your story. Courage to know that when put on the stand you will know how to respond when you are getting grilled by the ICBC lawyer.

Having a trial team that knows how to get results and knows how to put a case together for trial is essential in giving you the courage to take your case to trial.  

The reality is that somewhere between 1-4% of cases go to trial.  You probably do not want to go to trial! So you might ask, "Why is it so important that I have a great trial team?" The answer to that question is found in my last post.  The value of your injury claim is whatever the insurance company is prepared to give you or your alternative to a negotiated settlement which is trial.  Having a great trial team helps you with both.  The more the insurance company knows, fears, and respects your lawyer, the more they are going to offer you ahead of trial and the more likely you are going to be successful if you actually do go to trial.

If you found this post because you have recently been injured and are looking for a lawyer, then you are in luck.  ICBC seems to be a broken company (see my earlier post on the subject).  For some reason, they seem to be avoiding early settlements and pushing injured people further and further through the litigation process.  More and more cases are going to trial.  Lawyers, whether at our firm or others (if you can find a good one), are doing more and more trials.  Getting better and more efficient at running cases to court.  Trial is often described as a war and your soldiers are getting battle hardened!

The reality is that by the time your case has worked its way through the system, ICBC will have smartened up its ways and you will have a lawyer on your side that has earned the privilege of respect from ICBC by getting results in the courtroom.

How much is your ICBC claim worth?

I have this conversation with all my clients at some point.  Over the years I have found it useful to step back and look at the big picture.  I now give the big picture perspective to all my clients before I get into the details of their particular case.

Here is the way I see it.

Your injury claim is different from your injuries.  Your injuries are based in reality and are what you are going through.  Your injury claim is an asset; just like it is a liability for the insurance company.

The value of the asset is basically what the insurance company is prepared to give you for your asset or your alternative to a negotiated settlement...in British Columbia that is trial.

Regardless of whether it is the insurance company or a trial judge, the asset is valued is based on the evidence on your file.  If there is no evidence, then neither the insurance company nor the trial judge is going to put money towards that part of your asset (injury claim).

At this stage I usually interject with an anecdote:

I have represented a number of women who were injured in a car accident during their pregnancy.  A number of the women have gone on to have a successful, but a premature birth.  In my mind and in my client's mind the premature birth was caused by the accident.  I have however talked with numerous specialist (even a running partner when I was training for a marathon) who have explained that there are just too many potential causes of a premature birth that they would not be prepared to give an opinion for my client.

Without the proof, how could the insurance company or a judge put any money towards that aspect of the injury claim.

So, your subjective experience of what your claim is worth based on how much you suffered is a very, very poor measure of what your injury claim is worth.

More Big Changes at ICBC

For those of you not following the news, a rather scathing report was published this summer on ICBC.  The CEO has been replaced with an acting CEO and there have been many changes in upper management at ICBC, including a change in the position of Vice President of Claims.

Recently ICBC announced that it was continuing to restructure. They have just finished over 200 terminations.  

Link to latest ICBC announcement

Without doubt many good people who have been working hard are now looking for a new position.  For clients of mine the change, in my view, is a change that will hopefully take ICBC in a better direction.

About 4-5 years ago, ICBC appeared to take a much more aggressive approach to claims.  The change in direction ICBC was humorously labelled"Operation Robe-up!" by lawyers (at trial in British Columbia lawyers wear formal robes).  As part of this change of direction, ICBC seemed to take authority for settling files out of the hands of file adjusters.  Often decisions were made several managers up from the ground.  More cases went to trial.  Sometimes individuals won big awards; sometimes ICBC won big and individuals lost big.

ICBC's approach has had a big impact on our profession.  In the past newly called lawyers lamented that they never get into trial.  Now there is a whole new generation of litigators that are getting better at their craft.

In October 2012, our firm had 5 trials scheduled in one week...when push came to shove 4 of them went ahead (but 2 had to be moved back to accommodate the judges).  

If you have found this blog because you have had a ICBC claim and are looking for a lawyer, then make sure to ask your perspective lawyer if they go to trial...even if you do not want to go to trial.  Having a lawyer adept at navigating a file through a trial and doing it regularly is both a sword and a shield for clients.