TRUTH ABOUT TRIALS: ARE THEY WORTH THE RISK?

trial

Contrary to popular belief, most legal cases will NOT go to trial. For those of you who expect a Hollywood style gut wrenching sweat-inducing drama to unfold every time a legal action is started, I’m sorry to disappoint you but you’re better off sticking to your television fantasies.

After all, more than 90% of cases will settle before trial in Ontario. Why might this be? Well, some of the risks of taking a case to trial may just be too great. Some of these risks are outlined below:

Juries Are Unpredictable:

Personal Injury trials will often be determined by a jury. The people who sit on a jury panel (like all people) will bring with them their inherent biases and preferences, which can often influence their decision.

Rather than properly applying the law to the facts before them, juries may base their decisions on something other than the law such as sympathy or dislike towards a witness.

For these reasons juries are unpredictable and trial by jury has often been compared to “spinning the crapshoot”.

 

Costs of Losing at Trial:

Although most personal injury clients only pay their lawyers if they win their case, what will happen if they lose at trial? Often times, the losing party at trial will be required to pay a substantial portion of the legal costs to the successful party.

After a long trial, the costs could exceed $100,000 after legal fees, expert reports and other expenses incurred as a result of defending a lawsuit.  Often times, insurance companies are prepared to take on the financial risks associated with going to trial to defend a claim but injury victims may not be in the same boat.

Interestingly, there are some specialized insurance policies that injury victims can now take out prior to trial, which may cover many of the financial risks associated with losing at trial. However, coverage may vary and there are other risks beyond financial risks that may not be protected.

 

Time and Delay:

Trials are the last step in the process and will often take place many years later typically after an already long and drawn out legal process.

The problem is made worse with court backlog, which can create further delays for anxious injury victims to have their day in court.  Over long periods of delays, people’s memories fade, key witnesses may die and the prejudice created may result in a less than desirable outcome.

Often times, injury victims may need money desperately in order to compensate them for their losses or much needed future treatment and medical expenses. To them, a quicker but slightly lower settlement outside of court may outweigh the less than certain chance that a trial may get them significantly more money.

 

Conclusion:

The risks with placing the outcome of your case into the hands of the trial system are high, which would no doubt explain the high majority of out of court settlements.

When would it be worth taking your case to trial? Ultimately, as the client, this choice will be yours. It is always worth discussing your options with your lawyer. Before spinning the crapshoot, ask yourself whether the risks outweigh the rewards

 
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