The Lawyers Weekly - April 29, 2011

victims often feel misinformed

Many practices in the legal profession move from generation to generation, not for any rational reason, but simply because of habit and tradition. These practices continue until they are questioned, and eventually abandoned, by newer generations. At some point, the tradition of wearing wigs was abandoned, and the billable hour has been under scrutiny for years. It is now time for plaintiffs’ counsel in personal injury cases to critically examine the common prac-

DAVID
BRANNEN
Communication
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injury clients and lawyers. Clients who know they will receive a file update at the end of each month are less likely to call each week.

What seems to be a trend of an increasing number of accident victims feeling misinformed by their lawyers may result from the popularity of self-education through the Internet, combined with the complexity of the personal injury claims process. For example, in an Ontario motor vehicle case, an accident victim may be looking at the new Statutory Accident Benefits Schedule on the Internet, not realizing that an older version applies to the case.

One solution to prevent clients from feeling as though they have been misinformed is to caution them from the outset that they are at risk of being guided down the wrong path by information they may gather from other sources. Arming clients with written materials and explaining where different types of claims may diverge helps reduce a client’s interest in searching out other information.

A client has a valid complaint, of course, if his or her lawyer has provided misinformation. All too often, a lawyer who does not specialize in personal injury work is retained because of his or her ability to speak in the client’s native language rather than expertise in personal injury law. The lawyer who only dabbles in personal injury work may want to develop a working relationship with a personal injury specialist to act as co-counsel on serious cases. This solution helps address clients’ interest in communicating with their lawyers in their native language while ensuring effective representation.

As it becomes easier for clients to send out communications, the demands placed on personal injury lawyers will continue to grow. Nevertheless, meeting the challenging communication demands of personal injury clients is essential to effectively represent accident victims. n

tice of giving undertakings to produce documents during discovery examinations.

This practice has become so
entrenched that some defendants
now assert that plaintiffs have a
duty to undertake to produce
documents. A review of the
authorities reveals there is no
duty for a party to give undertak-
ings. In most cases, the practice
of undertaking to produce docu-
ments is unnecessary, does not
advance a plaintiff’s case and
simply grants a tactical advan-
tage to the defendant.

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Darcy Merkur is a partner at Thomson, Rogers in Toronto, practising plaintiffs’ personal injury litigation, including plaintiffs’ motor vehicle litigation. He has been certified as a specialist in civil litigation by the Law Society of Upper Canada and is the creator of the Personal Injury Damages Calculator.