Canada: Leveraging Favourable Settlements

Last Updated: October 29 2015
Article by Nawaz Tahir

It is a well known reality of our industry that very few personal injury claims make it to trial. However, my personal experience has been that when you prepare a file as if you are going to trial, you can obtain better leverage in your negotiations. With that in mind, here are some common areas that seem to lag behind in terms of file work-up, but that have an effect on settlement leverage.

A Picture is Worth A Thousand Words

Most people understand that jurors can be swayed by photographs and other demonstrative evidence, and plaintiff lawyers have lead the way in using this to their client's advantage. However, there are some areas where defendants can take advantage of this tactic too. For example, a picture showing very little damage can be a compelling piece of the puzzle, which can play upon a jury's skepticism of "whiplash" type complaints. In terms of leverage, while no one can guarantee what a jury will do, the general consensus is that jurors can be swayed by a lack of damage, particularly under two circumstances: a) When contrasted with large income loss reports and large future care cost reports tendered by the plaintiff; and b) When used as a building block for other evidence/arguments that will be discussed below.

However, relying on police photographs and/or garage shop photographs are not enough. Quite often, the pictures are grainy, they are in black and white (and the colour ones were not preserved), and/or they hone in on too small an area. Having a claims handler take appropriate, high quality photographs of the damage (or lack thereof) is a great investment.

Internet Research

When we think about internet research, usually the first words that usually come to mind are Facebook, twitter and Instagram – in the context of researching the activities of a claimant. However, the Internet can also be helpful when it comes to reviewing and building a case on liability and causation.

For example, research on the plaintiff's car may assist arguments about causation in soft tissue/chronic pain cases – that the accident could not have caused the damages. Earlier, I discussed photographs of the vehicles involved in the accident, and how those photographs can be a foundational piece of evidence to build on. And this is one of those building blocks.

For example, I recently had a case involving a plaintiff who hit my client when my client turned left in front of her, causing a fair bit of damage. While the pictures of the damage were not by themselves indicative of a low impact collision, we decided to proceed with a full investigation on liability and the forces involved in the collision. The plaintiff was driving a Honda, and some online research we did confirmed that the model she was driving employed Honda's energy absorbing technology, resulting in most of the forces involved in the collision being absorbed into a "crumple zone" in the car, and not the "occupant zone" Diagrams such as the one below, right from Honda's own website, were used in the mediation brief to help obtain leverage with respect to our view of the case – that the forces involved were not sufficient to cause the damages claimed.

Note that appropriate steps have to be taken to ensure that this evidence can be tendered at trial – either through a witness, a document, or an admission by the plaintiff.

The second source of assistance in this regard are industry publications. Again, having an appropriate process to ensure that the evidence is admissible at trial is important, however, step one is mining for the data. For example, the US Insurance Institute for Highway Safety publishes data about the safety of virtually any car available. If you go to http://www.iihs.org/iihs/topics/insurance-loss-information, then you can see the insurance loss information for many vehicles. The Institute also publishes its crash test data, including rear end crash data. By reviewing this website and mining this data, you may find that the claimant's car performs quite well in reducing the possibility of whiplash type injuries.

Another source of information is www.autoblog.com. This website aggregates safety information into one summary, shown below for an Infiniti G35:

While the website data alone is not "evidence" per se, it allows you to start to leverage certain aspects of the case during settlement negotiations. In the case of the Infiniti, the safety information suggests the chance of someone suffering whiplash is low due to their active head restraint system. The combination of a lack of any visible damage (or little damage), in conjunction with safety features, may persuade a juror that the accident was not capable of causing the injuries and damages asserted and this may be enough leverage to effect a reasonable settlement. At the very least, it may give you the foundation necessary to invest money in hiring an appropriate expert.

Spending vs. Investing

I pause here to go on a bit of a tangent. You will have noticed that throughout this article, I have used the word "invest" instead of "spend" when talking about file work up. This was deliberate. In too many cases, we are concerned about expenses – legal expenses and disbursements, while overlooking the bigger picture – the claim payout. Let me give you one example.

Late last fall, I successfully argued a summary judgment motion in a slip and fall case. At the discovery, I was able to obtain admissions from the plaintiff that he slipped and fell on a patch of ice that was only one square foot in area, but he did not recall the condition of the rest of the parking lot. He was a business owner as well, and yet refused to produce his own records as to whether or not he did any maintenance on his lot on the date of the loss. So, with those admissions in hand, we did two things to work up the file in response. First, we had someone go and measure the entire parking lot – it was 3800 square feet. That allowed me to make arguments based on the premise that occupiers are not insurers – that even if we accepted that the plaintiff was right, his best evidence was the presence of ice on 1/3800 of land area, and if 1/3800th was not a standard of perfection, what would be? Secondly, we retained a forensic climatologist to review the weather records and other data and opine on whether or not the conditions leading up to, and on the date of loss, were conducive to ice formation. He found that they were not. Secondly, he was asked to review the weather forecasts and determine if they had anything in them to alert a "reasonably prudent" person to take precautions for icy conditions. He found that there was nothing. So, to make a short story long J, we had to spend money on these tasks. However, when the decision came out, it was clear that the judge was in tune with both elements – the geography and the weather, and summary judgment was granted in favour of the insured. Claim dismissed, with costs. To paraphrase a familiar investing slogan, you have to spend money to save money.

That is not to say that money should be thrown at just any kind of work up. Staying with the investment theme, good investors do their homework. And in the case of claims, that homework is finding the nugget of information that opens a door for you, and taking all steps to make sure that door is opened as big as can be, and remains open as long as needed.

Conclusion

My goal from day one of receiving a file is to find what I call the "hook" of each case – most, if not all, cases have this. Sometimes they are more difficult to find, and in a few cases, it just doesn't exist. However, once found, the hook(s) is where resources should be focussed on as a primary means to leveraging a favourable settlement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Nawaz Tahir
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions