An auto insurance industry review of catastrophic impairment provisions is unnecessary at this time, Toronto critical injury lawyer Dale Orlando says in Law Times.
The provincial government has reopened renewed consideration of the provisions by starting stakeholder consultations not restricted to medical experts as was the case with last year’s review by the Financial Services Commission of Ontario, the article says.
“Where’s the fire?” Orlando, partner with McLeish Orlando LLP, asks in the report.
“They’re searching for a solution to a problem that simply doesn’t exist. Around one per cent of claims are deemed catastrophic. On a claim-by-claim basis, it’s a lot of money, but in the scheme of things, there’s no evidence that there’s been an upswing in costs.”
The Law Times article also discusses an Ontario Trial Lawyers Association advisory sent out in March that alleged the Insurance Bureau of Canada is misinforming officials about insurance premiums, claims costs, and profits.
The Insurance Bureau of Canada responded by publishing an actuarial analysis from JF Cheng and Partners on March 28, and then a KPMG LLP-authored analysis of Ontario private passenger automobile insurance results for 2008-12, the article says.
Everyday this week we will highlight one of the top 5 Personal Injury Cases you should know about. For personal injury practitioners, many of the most significant decisions of the past year arose in the accident benefits context. However, there have been a number of negligence decisions that will also have significant implications for personal injury practitioners. The decisions I have selected for review in this paper deal with diverse aspects of personal injury practice, from limitation periods to minimum maintenance standards to the applicability of statutory conditions to underinsured motorist coverage. In some instances, the cases will dictate dramatic changes to the approach that both plaintiffs’ counsel and defence counsel should take in applicable circumstances. In others, the cases provide useful reminders of small steps that counsel must take to successfully advance claims, and ensure they will be upheld on appeal.
Broker’s Negligence: Zefferino v. Meloche Monnex
Following the September 1, 2010 Insurance Act amendments that reduced accident benefits coverage, many plaintiffs’ lawyers considered the possibility of suing brokers who did not advise their clients of the possibility of buying optional benefits to increase coverage. Zefferino v. Meloche Monnex Insurance Co. is a reminder that in such actions, it is not enough for an insured to prove that an insurance broker breached the applicable standard of care to be successful in an action against that broker. Rather, plaintiffs must also establish that they likely would have exercised the option to purchase those benefits.
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In his own words “McLeish Orlando really gave me an independent lifestyle”. Before Dan’s accident he was an athlete, a top student and a musician in school. Listen to Dan as he tells us how the McLeish Orlando team helped him regain his life and independence after his accident.
This is the last post of the series Developing and Funding a Plaintiff’s Personal Injury Practice. The last challenge in starting your own firm is ensuring you have the best resources available. People.
When John McLeish and I started our firm in 1999 we had one other lawyer who worked with us and 7 staff members. We have made a point of not growing the firm simply for the sake of growth. Despite this approach, we now have a firm of 11 lawyers, 3 articling students and 50 support staff. We currently employ an excellent office manager and receptionist, in addition to a host of excellent accident benefit clerks, law clerks and legal assistants. All of these people are absolutely essential to the success of our law practice, but this growth hasn’t come without its share of problems. There is truth to the saying “good people are hard to find” and we have had our share of mistakes.
It is important that the people that work for me are dedicated, hard working, intelligent and honest, but this is only a starting point. For me, one of the most important aspects of our firm is the atmosphere. It isn’t for everyone, but it is for me. For almost everyone in the workforce, you spend the majority of your waking hours with the people that you work with. You can pay people well and they will show up for work, but if you want them to go the extra mile, work has to be a place that they enjoy going. They have to like the people that they work with and they have to like you. If your employees like and respect you, they will put their hearts and souls into the success of your operation. You can’t force people to like and respect you, but if you respect them, treat them fairly and take an honest interest in their well being, you will find that they can’t help but reciprocate. I’m not suggesting that you should be afraid to point out peoples mistakes or take appropriate action to correct behaviour that is detrimental to the office so long as it is done the right way. However, once you realize that you have made a bad hiring decision, you should move as quickly as you can to undue the mistake by letting the person go. It doesn’t take long for one person’s bad attitude to fester and create division within an office. You will spend a great deal of time and money fostering goodwill with your employees. You don’t want to let your efforts be undone by a bad apple. Read more of this article »
In part 5 of our series we discuss Funding Your Practice.
There are significant financial demands to running a successful personal injury practice. These demands are greatly increased when you are in the process of setting up and establishing a new personal injury practice. As stated above, you will have virtually no choice but to offer your services on a contingent fee basis which means you will collect fees some number of months or years after you begin working on a file and you will carry most of the disbursements associated with the file for this period of time as well. At the start of your practice, you can expect a significant delay in the inflow of cash. Conversely, the outflow of cash will begin before you even open your doors for business. Starting in the planning stages of opening your firm, you will begin to incur the typical overhead expenses of a law firm, such as rent, salaries, law society fees, insurance, equipment purchase, etc.
Before setting out on your own or in partnership, you must ensure that you have enough money in the bank or access to adequate credit to ensure that you can continue to pay your overhead costs when cases are pending. You don’t want to find yourself in a situation where your judgment about the value of a case is effected by your need to meet your financial obligations. In my experience, banks will be reluctant to lend to anyone who does not have significant collateral that they can pledge as security for their loan or a long and proven track record of success in their law practice. Banks have difficulty recognizing the value retained in a personal injury law practice by way of work in progress (WIP) and paid disbursements. On complex cases, the paid disbursements can easily run into the hundreds of thousands of dollars. In a large practice, paid disbursements can amount to millions of dollars. Read more of this article »
So far in this blog series on Developing and Funding a Plaintiff’s Practice we’ve discussed marketing your practice, through building relationships and advertising and developing systems for document gathering. We continue our series with the importance of gathering damages reports for file development and progression.
It goes without saying that you will want to obtain as many records as you can about your client’s pre and post injury health and employment before the discovery. In this way, you will have a clearer picture of your client’s case and you will be well positioned to educate your client about issues raised in their pre-injury health records.
Obtaining records from non-parties can take time, so it is important to start this process early. You do not want to be in a position where key documents about your client’s health are not available before discovery.
A good defence lawyer will often try to inject the Plaintiff’s credibility into the equation by seizing upon small inconsistencies or omissions in reports of pre-accident health history and extrapolating to the conclusion that the Plaintiff was trying to conceal past problems or blame the car crash for a pre-existing condition. It is for this reason that a comprehensive review of the OHIP summary and family doctors clinical notes and records must be completely reviewed for any pre-accident problems that may have some bearing on the case. This includes reviewing, to the extent that they are legible, the family doctors hand written notes.
Loss of income information in the file should be obtained and reviewed, including the resume the Plaintiff has completed for the purposes of the litigation, the pre-accident income tax returns, school records and current and previous employment files. Special consideration should be given whenever requesting school records. Read more of this article »
Toronto Critical Injury Lawyer John McLeish, partner with McLeish Orlando LLP, has some important advice for parents of children involved in a traumatic event.
The third part of our blog series entitled: Developing and Funding a Plaintiff’s Personal Injury Practice.
In this post we will take a look into developing systems for document gathering and file development and its importance through the various stages of litigation.
File Development and Progression
In our office, we have dedicated a lot of thought and energy to developing systems for document gathering and file development. If you are running your law firm like a business you will realize that it is very important for files to move as quickly as possible through the various stages of litigation. This is what your client wants and this is also in your best financial interest as all or nearly all of your retainers will be on a contingency basis whereby you are not receiving fees or recovering your disbursements until the case in concluded. In the majority of injury cases, you will not be able to get an opinion on the prognosis for the future from a physician until two years has passed from the date of injury. You should plan to have your case at discovery at or near the two year anniversary of the incident to allow you to set the case down shortly after discovery.
The document gathering process in motor vehicle litigation is essential. The documents are essential to prepare the client for discoveries and avoid inconsistencies and credibility issues at trial. Productions also provide the building blocks necessary to obtain complete and consistent expert opinion. Read more of this article »
This is the second of a series of blogs on Winning Strategies for Handling a Mild to Severe Brain Injury Case.
We first discussed the anatomy of the brain, including the structure of neurons. Here we will discuss the ways that our brain can be injured and the implications that flow from the various kinds of injuries.
The brain is very delicate and is considered to be the consistency similar to that of gelatin. If a brain is suddenly jolted or banged or twisted, it will cause a traumatic impact that ripples through the entire brain and can cause complications. The brain is made up of billions of neurons that can be damaged by trauma to a person’s head.
Some of the ways damage can occur to a human’s brain is as follows:
Mild Traumatic Brain Injury or Concussion
The term mild traumatic brain injury is used interchangeably with the term concussion. A concussion is caused by a blow or jolt to the head that disrupts the function of the brain. Unlike more severe traumatic brain injuries, the disturbance of brain function from a concussion is caused more by dysfunction of brain metabolism rather than by structural damage. The current understanding of the neuropathophysiology of a mild TBI involves a paradigm shift away from a focus on anatomic damage to an emphasis on neuronal dysfunction involving a complex cascade of ionic, metabolic and physiologic events. After an impact causing a concussion, there is an increase in glucose metabolism, and then a subsequent reduced metabolic state. These events interfere with the neuronal function in the brain and may lead to cell death after the injury.
Diffuse Axonal Shear
In a diffuse axonal shear injury many of the nerve cell pathways (axons) may be torn apart or stretched. This can cause a loss of connection between brain cells and can lead to a breakdown of overall communication among neurons in the brain. Information processing may be disrupted. A diagram demonstrating the process of axonal shear appears below:
Coup – Contre-Coup
A coup contre-coup injury to the brain occurs when there is a sudden impact to the head, which causes the brain to first slam into one side of the skull wall, then bounce off that wall and slam into the wall on the opposite side of the skull. Read more of this article »
Here is the second part of our blog series entitled: Developing and Funding a Plaintiff’s Personal Injury Practice.
In this post we will take a look into the other areas of Personal Injury Legal Marketing.
Existing and Past Clients
Past and existing clients are an excellent source of referral business. When someone has been seriously injured in an accident, their friends, family, acquaintances and neighbours generally know about it. If one of these people subsequently suffers an injury in an accident they are likely to turn to the person that they know has gone through the same experience for guidance. If the person is still an existing client of yours and you have been doing a good job on their behalf, the referral should come easily. Past clients on the other hand are a different story. They are potentially a huge source of word of mouth business that grows over time as your practice expands, but too many lawyers neglect to maintain any form of relationship with past clients once they have completed their file. You need to create an opportunity to remind your past client of your name and address. Remembering this is an easy task for the first several years after file completions, but becomes increasingly difficulty after a number of years. Your past client may simply assume that you have changed address or that you may not still be practicing personal injury law and not want to bother you with a referral. Maintaining a data base of past clients who you send a firm newsletter or holiday card to is an easy task and helps to remind people that you are still alive, well and practicing personal injury law.
Health Care Practioners
In the same way that an injured person seeks out someone that they know who has been through an accident related injury, so to do people seek out community health care practioners who are known to have experience with treating accident victims. Local physiotherapists, occupational therapists, chiropractors and family doctors are commonly asked to recommend a lawyer. Developing a strategy to become one of the lawyers on their “list” is crucial to nurturing this type of referral business. Generally, these people are busy and are not likely to be interested in simply going for lunch with you. However, if you can provide a value added service to them by way of a lunch and learn seminar, you will have a much easier time getting their attention. Look for opportunities to write a paper that explains something new that will be important to their practice and then call the person in charge and ask if they would be interested in having you discuss your paper with their group. The recent changes to the auto insurance Regulations is a perfect example. Our office routinely puts on seminars and webinars for health care practioners where hundreds of people attend or watch online.
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