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.

Big Changes at ICBC

The news has been full of big changes at ICBC.  With a new acting CEO and a new vice-president of Claims, Bryan Jarvis,those of us representing people injured in car accidents in Vancouver or BC can certainly hope that ICBC may be taking a less adversarial approach to claims management.

Regardless of any philosophical changes at ICBC, it certainly is good to hear that management and the union have tentatively agreed to terms of a new collective bargaining agreement.  Regardless how injured people feel about how they are being treated by ICBC, I am of the view that there are a lot of good people working at ICBC who are trying to do a good job and deserve a fair contract.

Good to hear that there is finally some labour peace at ICBC.  Let's get them to talk to the NHL!!! 

Cross Examination of a Neurosurgeon - Part 4

It has been a few months since I left off with this story.  I highly recommend going back through my blog to read parts 1-3 as this post won't make much sense on its own.  Those of you following will remember that we left off with the doctor reversing his opinion on causation.
Once the doctor folded on causation, the only thing left was to use that doctor to build my case.  One of the issues I had was whether my client had an ongoing disability.

The doctor had indicated that my client was not a surgical candidate, so I decided to start there.  I had him confirm that she was not a surgical candidate because surgery would not relieve all of her symptoms.  The other side of the coin is that if she is not a surgical candidate and she has not spontaneously resolved in the six years after the accident, then that means that she was likely going to live with this pain for the rest of her life.  He agreed.

He agreed that the only thing she could do to manage her symptoms was limit her activity and avoid certain activities...activities such it would be impossible to do her job without modifications.  As she had lost her job of 28 years and was looking for work, the neurosurgeon acknowledged that her injuries would be a factor working against her.

He agreed that the treatment that she was getting was not likely going to cure her.  However, he did agree that if the treatment helped reduce her pain, then it would seem appropriate.

In fact, by this stage the doctor pretty much agreed with everything.  I kept putting more and more helpful propositions to him in a polite and kindly way.  He kept building my case.

In the end, agreeing to the video deposition ahead of the trial was a very good decision.  The case settled in advance of the 3 week trial.  There were some other issues that made settlement make a lot of sense.  Sometimes, the best trial is the one that is avoided.

Success as a lawyer is not measured in trial wins or losses...it is measured in your ability to get an outcome for your client that is good for them and one they want.  In this case, that was a settled case for more than ICBC was offering before the video deposition, but without having to go through a 3 week jury trial.

If you enjoyed this story, let me know and I will post another story.

Yet another McComb Witten trial win

My colleague, Richard Chang, recently got a great court award for a nice lady with a walker who was injured in a bus accident.

ICBC refused to make a reasonable offer, but they could not scare our client from exercising her right to have her case heard by a judge.  

After hearing the case, Mr. Justice Gauer awarded our client over $25,000 for her pain and suffering but awarded an additional $26,500 for the loss of her ability to do housework.

Congratulations Richard and congratulations Ms. Hadzic for having the courage to take your case to a judge.

Important new case for people with ICBC claims

Today the BC Court of Appeal released a case that will have a profound impact for many people recovering from a car accident in BC.  


Under the law in BC, a injured person has access to two pools of money.  One through the Tort claim which results in compensation at the end of the claim.  The other pool of money is through "no fault" or "Part 7" benefits, which are paid up front.


Under the "no fault" benefits, there are some mandatory benefits which ICBC MUST pay, subject to certain conditions.  There are also some discretionary benefits which ICBC may pay.


ICBC has long held (when it suits its interest) that benefits for massage therapy is discretionary and ICBC's policy is to pay for up to twelve visits in the first 8 weeks.


Today in Raguin v. ICBC, Madam Justice Rowles sent ICBC a very different message.  Massage therapy benefits are actually a MANDATORY benefit.  That means, if you meet the requirements of the regulation, ICBC MUST pay for your massage therapy up front.


The decision today should make paying for treatment much easier for many people.  The problem that many people with ICBC claims will likely run into is forcing ICBC to pay for these treatments even if the Court of Appeal has told ICBC that they are mandatory.


As a law firm, McComb Witten is putting together a strategy to enforce this benefit for our clients.  We do not expect ICBC to pay willingly.  Our job as lawyers, however, is to get the money for our clients that they have a right to, but ICBC does not want to pay.  


In fact, that last statement is exactly the reason why people with ICBC claims hire lawyers and the reason I enjoy being a personal injury lawyer in Vancouver, BC.

Cross-examination of a Neurosurgeon - Part 3

You will recall that I left this story with the ducks lined up for the second goal.  The doctor wrote in his report that the accident was not the cause of my client's symptoms.  For those of you new to legal principles in ICBC claims, a plaintiff (the injured person) must prove that the accident was a legal cause of the injury - the principle is called causation.


The second goal was to get the doctor to reverse his opinion causation. 


I started with a couple of accepted medical facts.  The  neurosurgeon readily agreed that most disc herniations do not require surgery and heal on their own.  He also agreed that some of the expected symptoms of a disc herniation include numbness, tingling, weakness, and pain radiating down the arm and into the shoulder, headaches and pain radiating up and down from the injury sight


I then took the doctor through my client's clinical records from the family doctor one entry at a time starting from 3 years before the accident.  "Doctor, there is nothing in this entry to suggest to you that my client has a disc herniation that is actively causing symptoms?"  Again and again for each entry.


At the entry immediately before the car accident, the doctor volunteered, "Well, the family doctor's records are not the only records that are important.  I saw something in the chiropractor's records."


I graciously accepted this little gift.  


Q  So, then it is important to look at the various treatment providers to get a true medical picture?
A  Absolutely.
Q  And that would include treatment providers such as chiropractors, massage therapists and physiotherapist, right?
A  Definitely.


I then confirmed that the doctor had copies of the records of the chiropractor, physio, and massage therapist.   I took the doctor through the clinical entries of the chiropractor and physio - entry by entry as I did with the family doctor - stopping at the entry before the accident.  
I then took the doctor through the records of the massage therapist.


Q Doctor, you will agree with me that if my client had a disc herniation 15 years earlier, that you are not aware of any indication that it was actively causing symptoms in the three years prior to the accident?
A It would appear so.


I then took the doctor to the entry in the massage therapy records one day after the accident.  My client reported numbness, tingling, pain shooting down her arm and headaches.


Q  Doctor, you will agree with me that the accident caused these symptoms.
A  Yes.
Q  Doctor, these are the same symptoms that she has consistently been reporting since the accident?
A  It would appear so.
Q  And these symptoms, the are the ones you suggest were caused by the accident 15 years earlier.
A  That is right.
Q  And, in fact these symptoms ARE caused by the accident.
A  Yes, definitely.
Q  And to the extent that your report says otherwise, you now agree that the report is incorrect and that the accident caused the disc herniation.
A  Yes, that is true.


Goal 2 - getting the doctor to reverse his opinion on causation - accomplished


Goal 3 - confirming my client is disabled


Half the table is set for this third goal by this point in the cross-examination.


Look for Part IV to see how to turn the ICBC doctor into an asset for your client by using cross-examination. 

Another trial success for the McComb Witten team

 I would like to thank the ladies and gentlemen of the jury who sat through two weeks of evidence and gave up their Saturday to deliberate.  They returned a fair and reasonable verdict that clearly weighed the totality of the evidence.  


This trial was a coming out party for Meghan Neathway and the McComb Witten litigation team.  Meghan did an amazing job as co-counsel on this trial.  She has a nose for detail and a heart of  a lion.  Meghan was a key contributor in the organization and selection of our evidence, refinement of our theory of our case, and preparation of our witnesses.  She did an amazing job with the witnesses she took at trial.  What I like most about Meghan's approach is her easy ability to be genuine even on a stage such as a jury trial.  Congratulations to you Meghan - you are a fine trial lawyer.


Anybody looking for a great Vancouver personal injury lawyer would be in great hands with Meghan.  Check out her bio:
Meghan Neathway's bio


Finally, our client is a class act.  A brilliant gentlemen with integrity and courage.  He suffered life threatening injuries and has the strength of character to make the most of his situation.  Two broken legs, brain injury, skull fracture, blowout fracture of his eye socket, fracture through a joint at the base of his skull, two broken bones in his back, and a shattered tailbone.  He made it out of his wheelchair 21/2 months later and was back at work 2 weeks after that!!!  ICBC told him that "he was the author of his own misfortune".  He had the courage to take his case to a jury and they found the driver that hit him 75% responsible for the accident.  Again, not exactly what we were looking for, but was a fair and  reasonable assessment of the evidence.  All in all the verdict was entered for $640,000 less 25% for contributory negligence.


The jury gave our client the resources to get the medical care he needs, compensated him for his past wage loss and gave compensation for the hit to his career and gave him a fair and reasonable amount for his pain and suffering.


Thank you to our client, our judge, Mr. Justice Abrioux, my colleague Meghan Neathway, and the jury.  It was great to see our justice system work.

ICBC doctor's appointments - Do I have to go?

As a Vancouver personal injury lawyer, I regularly get asked whether you have to go to an appointment that ICBC sets up.  The question is straightforward, the answer is not!

ICBC is entitled to some medical evidence if you are looking for some of the "no fault" benefits.  A report for that purpose may or may not count towards the medical evidence that the defendant (through ICBC) is entitled to in the Tort claim.

Once a lawsuit is started, there is a big different between a first assessment and a subsequent assessment.  Sometimes an injured person has to go to multiple ICBC doctors.  Other times, ICBC is just trying to send a person to a different doctor to unfairly bolster their case or get a new opinion.

In Dillon v. Montgomery, 2011 BCSC 1417, the ICBC appointed lawyer for the defendant sent the injured person (the plaintiff) to an orthopaedic surgeon for an assessment.  The defendant's lawyer then wanted to send the plaintiff to a neurologist.

The Plaintiff resisted saying that they provided an opinion from a neurologist confirming that the plaintiff has some neurological symptoms, but these symptoms were NOT related to the accident.

The Master (essentially a judge of interlocutory or pre-trial matters) agreed with the plaintiff.  Looking at the defendants arguments, it appeared that they wanted the opinion to confirm that the symptoms were NOT related.  Given the evidence of the plaintiff's expert, they would only need this assessment to confirm a negative.  Doesn't make much sense does it?  Well the Master didn't think so either.

Often these arguments are thinly veiled attempts at getting new opinions.  Could be that ICBC didn't like the opinion they had and wanted to used this opportunity to get some new evidence.

Cross-examination of a neurosurgeon - Part 2

The devil, they say, is in the details and it is very true for cross-examination.   

The video deposition started as expected.  The lawyer for ICBC introduced the neurosurgeon with his very lofty credentials.  He then went over the doctor's report with him.  The neurosurgeon confirmed that he did not think that my client's symptoms were caused by the accident rather from a disc protrusion following two accidents some 15 years earlier.  He confirmed that my client did not require surgery.  He was then turned over to me.

As a Vancouver personal injury lawyer I have a few tools in my toolbox to deal with witnesses.  The most used tool is a stick.  Most often the better tool is the carrot.  Some witnesses require the stick, but I suspect we use the stick because it makes us feel like a lawyer (the sad reality is that most lawyers feel like paper pushers rather than lawyers).  We are not immune from popular culture and good T.V. shows.  The reality is that one can be much more cagey whilst being kind than mean.  I, thankfully, resisted my urge to be mean and took a pleasant tone with the ICBC doctor.

I had three goals I wanted to accomplish with my cross-examination: get the doctor to comment that vehicle impact is not critical (I had a fender bender as you will recall), get the doctor to change his opinion on causation, and get the doctor to confirm that my client was disabled from her injuries - no small task I set for myself!!!

I started by summarizing what I understood the doctor's analysis to be.  He listened carefully and agreed that he basically was saying that the earlier accidents caused the disc protrusion and that the accident that I represented my client for was not responsible for her symptoms.  I confirmed that he came to the later conclusion because the first record of complaints in the family doctor's records was some 4 months post-accident.

Goal 1 - impact not important

I then asked the doctor what speed the vehicles were going in the first accident 15 years ago. He, of course, did not know.  I asked about direction...vehicle damage.  He didn't know. He didn't know.  I cycled through the same questions for the second accident 15 years ago with, predictably, the same results.

I then confirmed that vehicle speed, direction and damage were all not important for determining the cause of a disc protrusion.  He happily agreed.  I suggested that all that was really important was to look at the medical records.  He, again, graciously agreed.

Goal 1 - accomplished

Goal 2 - Getting the doctor to fold on causation - ducks lined up and ready for knocking down

Leave a comment if you think you know how the ducks are lined up by this stage.

Look for Cross-examination of a Neurosurgeon Part 3 on a future post to see how this cross-examination played out.

Cross Examination of a Neurosurgeon - Part 1

A number of years ago,  I had a case that was about 3 weeks out from a three week trial.  My client was involved in a relatively small accident in a parking lot. The driver of a jacked up truck jumped into the truck and backed up into the side of my client's car.  Unfortunately, my client was looking in the opposite direction for a parking spot.  Immediately after the impact, my client developed sharp shooting pain radiating down her arm.  She had numbness and tingling in her hands along with very bad headaches.  The symptoms persisted.  Various medical testing demonstrated a disc protrusion in her neck.  Six years after the accident the doctors were still trying to decide if neck surgery was going to be beneficial.

To defend the case, ICBC hired a neurosurgeon who wrote an opinion that he thought that my client's disc protrusion was not caused by the accident.  He saw a reference to a disc protrusion in her records 15 years before the accident and said that the accident was not the cause of her symptoms.

The neurosurgeon's opinion presented quite a problem for my client's case.  If he was to be believed, then my client's claim would be very small and she was very likely to owe ICBC money following a trial as ICBC had made her an offer that was less than the value of her claim but more than the value if this neurosurgeon were to be believed. (In BC if you reject a reasonable offer, the party making the offer can show the judge the offer after the trial and if the judge awards less than the offer then the injured person owes ICBC the costs and expenses of defending the claim.)

My client was heading into a 3 week trial with considerable risk.   I knew that if I could knock out the neurosurgeon's opinion, my client's risk would be minimized.  The problem, of course, is that outcomes of trials are difficult to predict and I would not know until the middle of the trial how much I was able to undermine the neurosurgeon's opinion.

As luck would have it, the neurosurgeon was unable to attend the trial and the lawyer for ICBC asked us if we would agree to a video deposition, where we would videotape his evidence before trial and present it at trial.  We, of course, agreed to the video deposition.

Look for the story to continue in Cross Examination of a Neurosurgeon - Part 2!