Your ICBC Claim: Trial Dollars Without A Trial

This article touches on just a few of the strategies I use to get my clients trial dollars outside of a trial.

If you have been hurt in a motor vehicle accident you deserve fair compensation for your pain and suffering, your lost income and your medical expenses.

For more than 30 years I’ve been representing injured clients seeking fair settlements from ICBC. I have yet to represent someone who would not willingly give up monetary compensation for their injury if they could go back in time and avoid the injury altogether. My clients do not start claims against ICBC out of greed — they just want fair compensation.

Pain is not just a four-letter word. Injuries from MVAs can negatively impact all aspects of life — work, play and social relationships, including those with family members and other loved ones. And it’s not just the limitations of the injuries themselves. Pain can rob people of pastimes, activities and even the general sense of well-being most people take for granted before an MVA.

GETTING THE TIMING RIGHT

Starting a lawsuit against the party responsible for an accident is the beginning of what can be a lengthy journey. While most lawsuits end up settling out of court, it is very difficult — usually impossible — to get trial dollar settlements without a trial date on the horizon.

This is why I don’t do what many other lawyers apparently do — try to negotiate with the ICBC adjuster over an extended period of time and, if settlement has not been reached, only start a lawsuit just before the two-year limitation period expires. In my opinion, this is a recipe for either a poor settlement or an unnecessarily delayed one.

When I start the lawsuit on behalf of my client shortly after the accident we will get a trial date roughly two years down the road. When we are ready to negotiate a settlement, ICBC is much more motivated to offer trial dollars because of the fact that I have already sent a very clear message — we are quite serious about going to trial.

If we had not started the lawsuit right away and we ended up on the cusp of the two-year limitation period, starting one then would mean that the trial date would be roughly four years after the date of the accident — something most clients are not prepared to wait for.

A big question people often ask is, should you, as an injured party, settle your claim before you are fully recovered? This can sometimes be very tempting.

Partway into the litigation process ICBC will make an offer. Sometimes it’s not a poor offer, given the length of time that’s passed since the date of the accident. However, the answer should always be a firm and clear “no”. If you have not yet fully recovered you have no certainty as to when or even if full recovery will occur.

A court, in deciding how much your injury and pain and suffering are worth, will always take into consideration the length of time it took you to recover or the fact that you simply are not going to recover, if this is the case. Settling early before you’ve had the time to recover means that you’re almost certainly selling yourself short. It may be hard to wait but it’s almost always better to do so.

I’m fond of the saying that an ICBC file is like a bottle of fine wine. The longer it sits the better it gets.

THE POWER OF LAY WITNESSES

So we have a trial date on the horizon. Any number of outcomes from the MVA can be your new reality, but the two most striking ones are polar opposites: You are either fully recovered or your doctor has advised you that you are not ever going to recover.

Whatever the outcome is, what steps do we need to take to increase the likelihood of getting you trial dollars without a trial?

By this point, I will have contacted all of your consulting doctors, obtaining medical legal reports from each of them. ICBC will almost certainly have obtained medical legal reports from their own doctors, too. So if we go to trial, there will be a number of experts in our corner of the ring and a number of experts in ICBC’s corner. The judge will have to decide whose experts are the most credible and reliable.

One of the ways I break the “expert deadlock” is by calling lay witnesses. These can be friends, neighbours, relatives and your significant other.

Lay witnesses can be very helpful. They see you in the real world; expert witnesses do not. Lay witnesses can give “before” and “after” evidence — what you were like before the accident and what you are like after. A few well-chosen lay experts can go a long way in helping you at trial.

More importantly, lay witnesses can help you get a good out-of-court settlement. Here’s how: I will prepare written statements summarizing what I understand the lay witnesses will say at trial if an out-of-court settlement is not reached, and then provide these statements to ICBC. This can have a very positive effect on negotiations.

COMPENSATION FOR FUTURE CARE

If your injury is permanent you will incur medical expenses after the trial, often for many years. Of course, you will not have receipts for these expenses at the trial itself. These medical expenses are sometimes referred to as Future Costs of Care.

I will typically hire an occupational therapist to prepare a Future Costs of Care report. This report assists the judge in calculating the appropriate amount of money to compensate you for all of your future care costs.

A Future Costs of Care report that’s done effectively can be very helpful to your claim. Served on ICBC well in advance of the trial, this type of report will increase the amount of money ICBC is prepared to put on the table.

If you are looking for an ICBC Claims lawyer in Vancouver to work on your behalf, give me a call at 604-732-7678 today.