Answering Your Frequently Asked Questions

During the initial consultation, an individual will first meet with a lawyer to discuss his/her case. It is an important step in the process that enables the lawyer to obtain basic information and determine whether an individual may have a case that is worth investigating and pursuing. It also enables the injured individual to ask questions and obtain information from the lawyer.

This article aims to answer the most common questions asked by prospective clients during an initial consultation. Before providing the answers, two things must be remembered:

·        During the initial consultation it is often too early to definitively answer all questions, as discussed below.

·         Each case involves different facts that will impact the outcome of the case. Many clients often attend the first meeting with expectations about the value of their case or the length of time their case should take based on discussions with friends who have gone through the process or stories they have heard on the news (particularly misleading are news stories of multi-million dollar awards in the United States!). This may lead prospective clients to adopt unrealistic expectations.   

SEVEN MOST FREQUENTLY ASKED QUESTIONS

1. Do I Have a Case?

   
   

   During the initial consultation, it is often impossible to determine whether an individual “has a case.”

   
   

   To successfully claim compensation in a personal injury lawsuit, an individual must prove that another person or business (ie… the potential defendant) was negligent and consequently caused his/her injuries and resulting damages.

   
   

   

   
   

   Further investigation is often required to establish that a potential defendant committed a negligent act. For example, in a medical malpractice case against a doctor or other health practitioner, a lawyer must first gather a significant amount of information to determine what took place. This will include interviewing the prospective client during the initial consultation, ordering medical records outlining the allegedly negligent treatment, and then retaining relevant medical experts to provide an opinion as to whether the prospective defendant breached the standard of care (ie… was negligent) and that the defendant’s breach of the standard of care caused the individual’s injury. If the above criteria are met, then a lawyer may rightfully consider filing a statement of claim and commencing a lawsuit. Throughout the lawsuit, additional investigation will take place. The parties will exchange relevant documents known as discovery of documents (see Hillier & Hillier’s article at: https://www.avahillier.ca/post/placing-your-life-under-a-microscope-during-personal-injury-litigation for a thorough discussion of documentary discovery) and participate in discovery examinations where each party is examined by the opposing lawyer under oath (for a thorough discussion of discovery examinations, see Hillier & Hillier’s article: https://www.avahillier.ca/post/examinations-for-discovery-what-to-expect for a comprehensive discussion of discovery examinations).

   
   

   Quite often, especially in medical malpractice actions, it will be unclear whether an individual can successfully establish that a defendant was negligent until after discovery examinations occurred. Typically, plaintiff’s counsel will order all relevant medical records and transcripts of the defendant’s discovery evidence and provide these items to relevant medical experts to comment on whether the defendant was negligent and thereby caused the plaintiff’s injury.

   
   

   In some cases, it may be clear at a much earlier stage that the defendant was negligent and caused the plaintiff’s injury. For example, at the initial consultation the injured individual may have dash cam footage that reveals she was stopped at a red light when an oncoming vehicle ran the red light and swerved into her stopped vehicle. In rare cases such as these, a lawyer may be able to confidently advise the individual that they can establish negligence against the defendant. Still, additional investigation will be required and certain facts may or may not be discovered later in the proceedings (at discovery examinations) that will impact the lawyer’s initial advice.

   
   

   Further, just because an individual can establish that a defendant was negligent does not mean they have a case. An individual must also prove that they sustained damages as a result of the defendant’s negligence. This too, requires extensive investigation as discussed under question 2, directly below.

   
   

   At the initial meeting, a lawyer will, however, be able to advise a prospective client that he/she has a claim worth investigating and potentially pursuing.

   
   

2. What is the Value of My Case?

   
   

   This too, is a difficult, if not impossible, question to answer during the initial consultation and individuals should be wary of any lawyer that provides a definitive recommendation as to the value of one’s case during the initial meeting.

   
   

   

   
   

   Typically, extensive investigation is required to determine the value of a case. This includes obtaining all relevant records, mentioned above. Additionally, plaintiff’s counsel will typically retain experts to provide a medical opinion as to how their client’s injuries will impact their lifestyle. Plaintiff’s counsel will also retain accountants to calculate the economic losses (income loss, future care costs) occasioned by their client’s injuries, if any. The plaintiff will often, but not always, need to attend examinations for discovery before plaintiff’s counsel can realistically value their client’s claim.

   
   

   Further investigation may uncover evidence that supports or detracts from the plaintiff’s claim for damages.

   
   

   It is especially difficult to assign a value to motor vehicle accident cases during the initial meeting. To claim general damages for pain and suffering, there must be sufficient medical evidence to prove that a plaintiff sustained a serious and permanent impairment (threshold test). Further, even if the plaintiff meets this threshold test, there is a statutory deductible of $46,790.05 that applies to awards for general damages below $155,965.54 (as of 2025). At the initial consult, it will often be impossible to determine whether a Plaintiff sustained a permanent and serious impairment let alone whether the deductible will apply or not.

   
   

   Finally, valuing a claim is not a clear-cut exercise that can be determined with precision. The plaintiff and defendant will often disagree as to the value of the plaintiff’s case. Settlements are typically reached where both parties make concessions and try to reach some middle-ground. Where this is not possible, it will be up to a judge or jury to assess the plaintiff’s claim. A judge or jury may also have a different view of the value of the plaintiff's case.

   
   

   

   
   

   At the initial consultation, the most that can be said is that the plaintiff’s injuries are sufficient to warrant additional investigation and pursue a claim.

   
   

   Lawyers who definitively offer valuations during the initial consultation without all relevant information will almost always need to revise their opinions later, which may upset clients and lead to a lack of trust.

   
   

3. Can I Settle without Going to Trial?

   
   

   Yes, and the vast majority of personal injury cases do settle before trial. Theoretically, you can settle your case at any time after becoming injured up to the date of trial. However, plaintiff’s counsel should always conduct an extensive investigation to ensure that all relevant heads of damages are being pursued. In some cases, it may be possible to resolve one’s case at a very early stage. This may occur in less complex cases where there is no income loss, and the parties have a good idea as to how the plaintiff’s injuries will impact his or her lifestyle without the need for expert evidence.  

   
   

   In other cases, where the plaintiff’s injuries are significant and there are numerous heads of damages (including but not limited to future care, loss of income, general damages, assistance with housekeeping), settlement cannot meaningfully be pursued until extensive investigation, including retaining multiple experts to comment on liability and damages, has been completed. More complex cases typically require years to build (see below). These cases often settle several years after the accident at mediation, at a pre-trial, or on the eve of trial. It takes time to build a good case, and individuals with significant injuries (including head injuries and major fractures) should be wary of lawyers who attempt to settle cases without expert medical reports outlining how the plaintiff’s significant injuries will impact his or her lifestyle or accounting reports calculating the plaintiff's economic losses, if any.

   
   

4. Will I Have to Pay Anything if My Case is Unsuccessful?

   
   

   Theoretically, yes. If a plaintiff proceeds to trial and fails to recover damages, or recovers an amount less than the Defendant’s offer, then the Plaintiff will be the unsuccessful party who will be responsible for paying a portion of the legal fees of the other party. However, in practice, this should be an extremely rare, if not non-existent, outcome.

   
   

5. How Long Will My Case Take?

   
   

   A personal injury claim is usually a lengthy process. As mentioned above, there are some cases (often not complex) that may settle at an early stage and within 6-12 months from the date of an accident/incident. Other cases may take anywhere from 1 to 8 years depending on the complexity of the claim and the need to retain multiple experts. More complicated claims, involving companion actions and multiple parties will often take longer. Court availability has also become significantly strained since Covid-19, such that some courts are often unable to offer pre-trial and trial dates for 2-3 years after all necessary steps in a case have been completed and the action has been set down for trial, which itself does not occur until 2-4 years after an accident/incident occurred.

   
   

   

   
   

   It is also up to the plaintiff, not plaintiff’s counsel, as when to settle her claim. Plaintiff’s counsel cannot force their client to settle and cannot force them to proceed with a claim. Plaintiff’s counsel can only make recommendations as to whether an offer should be accepted or rejected. It is up to the plaintiff to determine whether to take their lawyer’s advice and accept or reject an offer. Some plaintiffs may be willing to take a discounted settlement early on to avoid waiting years for their claim to finish. Again, such claims are typically not complex. Other plaintiffs, with large complex claims, may be willing to wait years and proceed to trial, if necessary.  

   
   

6. What is your fee? Do I Have to Pay Anything Up Front?

   
   

   At Hillier & Hillier, clients are not required to pay anything up front. We will pay for all necessary disbursements to investigate and build a case, including retaining experts to provide expert evidence supporting your claim. Our fee is a maximum of 30% of damages recovered plus reimbursement for disbursements. For more information on our fee, please see “OUR CONTINGENCY FEE & RETAINER AGREEMENT” at: https://www.avahillier.ca/post/choosing-the-right-lawyer.

   
   

   However, there is one exception to the above. In medical malpractice cases, we typically request our clients to provide an upfront retainer to cover the costs (disbursements) of obtaining expert reports on the issue of liability, namely a standard of care report and a causation report. A “standard of care” report, outlining whether a defendant physician breached the standard of care or not, and a causation report, outlining the damages caused by the defendant’s breach of the standard of care, are required up front to determine whether the Plaintiff has a viable action against a defendant physician. The cost of these reports varies but are significant ($4,000 - $7,000, each). While we require an upfront retainer to cover the costs of these reports in medical malpractice cases, we do not charge legal fees for our services unless we successfully recover damages on your behalf. Our fee in medical malpractice cases is 30%.

   
   
   
   

7. What is the Process?

   
   

   The process for each claim varies but may involve the following steps:

   
   

   1.      Initial meeting, opening a file, and investigation. Investigation at this stage involves the lawyer writing for relevant records.  

   
   

   2.      Filing a claim with the court (commencing a lawsuit).

   
   

   3.      Continued investigation and preparation of affidavit of documents (a bundle of all relevant records).

   
   

   4.      Discovery Examinations - where each party is examined by the opposing lawyer.  

   
   

   5.      Medical Examinations – where each party will arrange for the plaintiff to be examined by a medical expert. This may occur later in the claim, but ideally expert reports will be completed and served in advance of mediation.

   
   

   6.      Mediation – where the parties meet with a neutral third-party mediator to attempt to settle the case. This is mandatory in Toronto actions.

   
   

   7.      Motions, if necessary. For example, a motion requiring the other party to answer questions that were refused at discovery or produce relevant documents that were not produced may be needed.

   
   

   8.      Setting the action down for trial. This is often done shortly after discovery examinations of all parties. Once the action is set down for trial, the Court will provide the parties with pre-trial and trial dates.

   
   

   9.      Pre-Trial – where the parties meet before a judge to attempt to resolve the claim or streamline the issues in dispute to make trial as smooth as possible and prevent delays at trial. The plaintiff’s original expert reports must be served 90 days before pre-trial. At this point, the parties should have a very good grasp of the plaintiff’s claim.

   
   

   10. Trial – where the parties present their case before a judge or jury, and the judge or jury decides the outcome of the case.

   
   

   It is worth mentioning that plaintiff’s counsel will continuously be investigating for relevant evidence to support their client’s claim throughout the entire process. If you wish to read about each of the above steps in more detail, these have been described comprehensively in other articles on Hillier & Hillier’s website: https://www.avahillier.ca/news-and-updates.

   
   

   The lawyers at Hillier & Hillier are specialists in Personal Injury litigation. If you have been injured as a result of someone’s negligence, call Hillier & Hillier at 905 453 8636 for a FREE consultation.