The timing of a lawsuit is difficult to predict with 100% certainty. It can take two or three years for a lawsuit to settle or go to trial, or in some cases even longer. On the other hand, some cases settle very early on. The amount of time your lawsuit will take will depend on many factors, such as: when we receive the documents we need, how soon you recover from your injuries, when a stable medical prognosis can be achieved, how booked the courts are, and when the other lawyers are available. The timing of your lawsuit depends on many things, some of which are beyond our direct control. However, most lawsuits go through the same basic steps. The steps listed here are the main steps that occur in a civil lawsuit. They will give you a general idea of what to expect.
1. Gathering the Facts
With your help, we gather all the available facts concerning the claim, including interviewing and taking statements from you and witnesses. We sometimes hire investigators or experts to help us. We may have to perform corporate and/or property searches. In addition, we start the process of gathering documentation related to the claim. Such documentation may include medical records, photographs, police records, tax records, employment records and other information.
2. Starting the Lawsuit
We begin the lawsuit by preparing a court document called a Statement of Claim and filing this with the Court. The Statement of Claim is then served on the defendant(s). We will then typically hear from a lawyer for the defendant(s), who will serve and file a Statement of Defence.
3. Examination for Discovery
After gathering the facts, we arrange the Examinations for Discovery. At the Examinations for Discovery, we question the defendant under oath about the incident in question. We also ask the defendant to show us what relevant documents the defendant has and to tell us about all relevant documents he or she has ever owned or had access to. In return, the defendant’s lawyers also will question you about the accident and the injuries you suffered. We give the defendant copies of the documents we have that relate to the lawsuit, and may also describe relevant documents we had or had access to.
At any stage of the proceeding, a party can bring a motion to be heard in Court. Motions typically relate to one side refusing to produce or do something and, therefore, the requesting party will then seek remedy in Court. If the parties are able to work out their differences agreeably, most motions can be avoided.
5. Medical-Legal Assessments
A person bringing an injury or disability claim will likely have to attend at least one medical-legal assessment in support of their claim, and also at least one assessment requested by the lawyer for the defendant. A medical-legal assessment is typically completed by a doctor (a specialist) hired by the lawyer to perform an in-person evaluation of the injured party and to prepare a comprehensive written report to assist the parties and the Court. The timing of these assessments will vary, but they are usually done after the Examinations for Discovery.
In Ottawa, the Court system mandates that the parties attend a Mediation. A Mediation is an opportunity for the parties to get together and discuss the case in a confidential and relatively informal setting. A Mediation typically presents a good opportunity to settle the case.
If the parties do not settle at the Mediation (or at any other prior point), then the parties will request a Trial and Pre-Trial date. A Pre-Trial is a very important step in the proceeding beacuse it gives the parties an opportunity to hear from a Judge (or Master). The Judge will review the case and he or she will usually provide a specific recommendation for settlement, highlighting the strengths and weaknesses of both sides of the case. Many matters will settle right at the Pre-Trial, or shortly thereafter.
Most cases settle, but if the parties do not settle at any point then the final step for the lawsuit is the trial. A trial can take several weeks and it is a very expensive process for all involved. Most civil actions are heard by a Jury (with a Judge presiding) so one must rely on the common sense approach of the jury who will hear all of the evidence. The Jury, with the assistance of a Judge, will therefore be in the best position to reach a fair verdict for the injured party.
9. Negotiation and Settlement
When it is appropriate, we talk with the defendant’s lawyer to see if the claim can be settled. A settlement is an agreement between the parties to a lawsuit which sets out how they will resolve the claim, usually for a monetary amount. If the claim is settled, it does not go to trial. Settlement talks can happen at any time during the course of a lawsuit.