Even in the era of the vanishing trial, lawyers with courtroom experience should be a key requirement for injury victims who want to get the compensation they deserve, says Toronto insurance lawyer Rohan Haté.

Over the last few decades, one of the overarching themes of Canadian legal practice has been the loss of the trial, with fewer and fewer civil actions ending up in court to be settled by a judge or jury. In the fiscal year of 2021/22, there were 765,967 active civil court cases in Canada, and only a fraction were resolved in court.

Likewise, the vast majority of personal injury claims will settle at some point in the process without the need for a trial.

Below, we explore what this changing landscape means for injury victims seeking justice and why their choice of advocate is crucial.

The power of preparedness

Haté, a lawyer with McPhadden Samac Tuovi Haté LLP, says the advocacy and litigation skills he has developed over many years appearing at trial remain critical to his practice representing accident victims — even if their case never makes it as far as court.

"To do the best for your client, you have to be able to show that you are not just preparing to settle, by demonstrating a willingness to go to trial, if necessary," he says. "When insurance companies know that they are dealing with someone with trial experience, they have to take your case more seriously."

One reason for the decline of the trial is the mounting costs associated with a full-blown court battle, and many insurers are eager to avoid the delay and expense that comes with fighting it out in court.

Settle low or assemble a new legal team?

Accident victims get some insulation from these concerns because of the terms of the contingency fee retainers that typically govern their relationships with counsel, but Haté says that any leverage to be gained by the prospect of a trial will quickly dissipate when the lawyers representing the insurer can be sure the other side is bluffing.

"It's one thing to say that you are prepared to go to trial, but it's not going to mean very much if your advocate has never set foot in a courtroom," he explains.

In those rare cases where a settlement can't be reached between the parties and a trial is required to resolve the matter, Haté says plaintiffs whose lawyers are not willing to go the distance could be faced with a choice between two unsatisfactory outcomes: settling the case for less than it is worth or hiring a completely new team of lawyers to conduct the trial.

360-degree view of insurance claims

In addition to acting for plaintiffs in all kinds of insurance-related claims, including slips and falls, long-term disability and fire losses, Haté dedicates a portion of his practice to advising major insurers on all aspects of insurance claims. Indeed, some of his trial experience includes work conducted on behalf of insurers.

Haté says his personal injury plaintiff clients ultimately benefit from this all-round approach, not only because of the breadth of courtroom experience, but also because of the insights it gives him into the defence-side approach to cases. By understanding both sides, Haté is better equipped to secure just compensation for his clients.

"It helps in negotiations with insurance companies when you can see things from their perspective. You see what you should and shouldn't do and it also keeps you up to date with respect to changes in the law," he adds.

In a world where costs and complexities often drive cases toward settlement, having a legal champion with a comprehensive perspective on insurance claims can be a game-changer. With Haté's expertise, injury victims can navigate these challenges and secure the justice and compensation they deserve, ensuring a brighter future.