Trial Experience Trumps All: Why a personal injury lawyer's courtroom record is key to every claim

Singer Kwinter's Alf Kwinter on why trial experience is paramount for hiring personal injury counsel

Perhaps the most important question a person should ask when choosing a personal injury lawyer is what is that lawyer's trial experience?

Why is this question so important, particularly when it is well known that approximately 95% of all personal injury cases settle before trial? The answer is quite simple. When an insurance company receives a claim the first thing they look at is the name of the Plaintiff's counsel. The name they see will immediately put that claim in a certain category. It will likely tell the insurance company what lawyer to assign to defend the case and will often give the claims person some guidance on what reserves to set for the claim. Allow me to give this some historical perspective.

There was a time, many years ago, when I first began to practise, when many lawyers - regardless of what other areas of law they handled - were always ready to handle personal injury matters. All it took was the ability to read a few medical reports, calculate the income loss if any and add up any out-of-pocket expenses. A quick meeting with an adjuster and the case was settled.

Many lawyers treated personal injury cases as just a way to help them pay the rent. This all changed drastically in 1990 when the Ontario provincial government introduced legislation which imposed severe restrictions on the right to sue for injuries arising from a motor vehicle accident. That major change in the law caused a great upheaval in personal injury law. I know lawyers who gave up the area entirely. Some lawyers left Ontario moving to such places as B.C. and Michigan where once they qualified could practise personal injury as they had in Ontario. Many lawyers believed that personal injury law in Ontario had come to a sudden end.

Since then, the area of personal injury law has not died but has become exceedingly more complex. There are now thresholds and deductibles that must be considered and the number of claims that warrant proceeding with has vastly diminished.

What this has all resulted in is that a serious personal injury case is an extremely complex matter. Not only must counsel be thoroughly familiar with the law but knowing how to properly build the claim and present the case before a jury is essential. Regrettably, today the number of lawyers who have conducted a complex personal injury case is remarkably small. Insurance companies know this. They also know who those lawyers are. Unfortunately, the public does not. The Law Society has provided some level of assistance by its Certified Specialist program, though regrettably the Law Society is considering eliminating it.

The public is therefore left on its own to determine what lawyer has the necessary trial experience to take a personal injury case forward. The best way to deal with this very important issue is to ask the lawyer - how many personal injury trials has he or she conducted either alone or as lead counsel?

Nobody would want to undergo serious surgery by a doctor who had not performed that procedure before. Why should anyone expect any less from a lawyer they are choosing for their personal injury case?

It has been said that knowledge is power. In no case can that expression be more apt than in choosing a lawyer to handle a serious personal injury matter.

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Alf Kwinter earned his JD from the U of T in 1970. He and Morris Singer founded the firm in 1974. He has appeared at all court levels including the Supreme Court of Canada, where he appeared on behalf of the successful plaintiff in the landmark decision of Oldfield v. Transamerica Insurance. Alf has achieved some of Canada’s largest jury awards for punitive damages against an insurer. He acted for the plaintiff in the milestone case of Kamin v. Kawartha Dairy, which reduced the onus on plaintiffs in establishing liability in slip and fall claims.

He obtained the highest award in Canada for chronic pain in Degennaro v. Oakville Trafalgar Hospital. Alf is certified by the LSO as a Specialist in Civil Litigation, is a past director of The Advocates' Society and Medico-Legal Society, and is a member of OTLA, TAS, the CBA, the ABA, and AAJ. Alf is an Adjunct Professor at Osgoode Hall. The firm is consistently named by Canadian Lawyer Magazine as a top personal injury firm in Canada.

He has twice been honoured by OTLA and is a recipient of the Excellence in Teaching Award by TAS. Alf received the 2015 OBA Award for Excellence in Insurance Law and was named the 2016 Best Lawyers personal injury litigation Lawyer of the Year Toronto. Alf is a Fellow of the American College of Trial Lawyers.

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