Hard Fought Case Shows Value of Contingent Fee

The lead lawyer in this case was Pamela Taylor. Our client's injury was a leg broken by a careless driver. He was riding a bicycle. He was a high achieving graduate student who was delayed in obtaining a university teaching job as a result of his injuries. An important issue in settling the case was, how to value the loss represented by delayed entry into the workforce?

The defendant offered about half what we thought the claim was worth, so we went to trial. Sometimes you go to trial the sake of justice. Our client received a trial judgment for twice the amount of the defendant's formal offer, the total judgment being $118,098. The Court of Appeal thought the judge should have deducted money earned as a graduate student from the $60,000 award for loss of future economic opportunity, and reduced this by $22,719, an amount the Court of Appeal called "a relatively minor change to the total damages award": Jarvis v. Treberg, 2009 NLCA 51.

The point of significance to the issue of consumers and contingency fees, is that as Mr. Treberg's lawyers we were willing to expend about twice the amount of the money judgment, measured by the reasonable value of our time, to recover this money judgment for our client. Twice what the judgment was worth - but the client got twice the money the insurance company was willing to pay.

Rarely does an accident and injury client have to go to trial to get justice. But if you do go to trial, as this example shows, your contingent fee lawyer "subsidizes" the trial in all but the very largest cases. We do it because we believe in justice.

At Ches Crosbie Barristers, contingent fee agreements protect the consumer and provide access to justice. Which is the way it ought to be.

Difficult Choices For Copter Crash Victims Include US Lawsuit

The known evidence is pointing more and more strongly to potential negligence on the part of Sikorsky Helicopter Corporation, based in Connecticut, United States of America.  Today the Globe and Mail published a story that it had obtained documents showing that the Sikorsky S-92 “failed a critical test of whether the aircraft can keep flying if the oil in its main gearbox leaks out….  Certification documents show that the S-92 couldn’t meet a specification that calls for the main gearbox to run for half an hour without oil – a requirement known as “dry run”.”  I wrote about the 30 minute dry run requirement in “Families Review Legal Options”.  The story quoted an experienced test pilot who said that until three weeks ago, he would have assumed the S-92 would fly without oil pressure for 30 minutes – which probably is exactly what the pilot of Cougar Flight 491 assumed as he was making for safety at Cape Spear.  “Now I know different.”

The laws of Newfoundland and Labrador are not generous in wrongful death cases, in fact they are downright backward.  I have to deal with this in the Breast Cancer Testing Class Action.  How about some attention to law reform here, Danny Williams, Q.C.?

A very important question is whether the victims of a product defect which causes death and injury in Newfoundland and Labrador, Canada, can sue a product manufacturer which is based in the United States of America.  I know from experience in other cases that the money damages in a US court can be ten times the damages available here.

So last week I contacted a leading US aviation liability lawyer in the United States for advice.  Bottom line:  there is no black and white answer, but the chances of bringing suit in the US are greatly improved if the Cougar/Sikorsky family members are guided from the start by sound Canadian and US legal advice on how to achieve the fullest measure of justice. 

The decision to accept Workers Compensation or not is a complicated decision to be based on many individual factors.  The decision must be made within 6 months in death cases, 3 months in a case of injury, so there is time to sort through the options.  Families should obtain a package of information from the Commission, and obtain the best advice they can, from the Commission, union representatives, and other trusted advisors.

One of these advisors should be a personal injury lawyer with experience in product defect cases and the ability to access top legal expertise in the complicated world of aviation disaster law.

There are strong reasons for all the families and their legal advisors to stick together in these early months and develop a common strategy.  The potential benefits of acting together are great.  Loved ones lost in the tragedy would expect it.

If this sounds expensive, lawyers who do this kind of work usually work on a “no cure no pay” or contingent fee basis, meaning the fee will be a percentage of the settlement or court award.  Anyone looking for a lawyer should interview more than one lawyer, taking care to discuss qualifications, case strategy, and fees.  You don’t just want a good lawyer, you want the best lawyer for your case!

How to Get More Money for your Injury Claim: Giving Evidence at Discovery

There is one reason to take an accidental injury claim.  You want the greatest amount of money to which you may be entitled for your injury.

Rarely, making a personal injury claim may involve giving testimony at trial.  More frequently, and almost always in serious injury claims, a claimant must give personal testimony as part of a process called discovery, also called a "deposition".

You and your injury lawyer are in a partnership, and your lawyer can't do it all.  Your lawyer can't testify for you.  The preparation you do for your oral discovery will pay big dividends.  It will have a big effect on the money you get. 

Oral discovery happens when evidence is taken under oath (or solemn affirmation) with the opposing lawyer asking questions, usually in a law office boardroom. The evidence is recorded and a transcript is typed up.

In a personal injury case, the objective of the other side at oral discovery (broadly speaking) is to meet the claimant and form a personal impression of him or her, to explore inconsistencies between the claimant's medical history and the claimed injuries, and to establish the claimant's version of the story in a way that can be used later if the story changes at trial.

There are two styles of conducting discovery. First, discovery can proceed as a learning exercise, by which the defence attempts literally to learn or "discover" the plaintiff's story through a series of who, what, where, why, when, and how questions.  Second, discovery can be conducted as a cross-examination discovery, in which the lawyer asking the questions thoroughly prepares beforehand to establish areas of examination, in which she believes she can by use of leading questions, one fact at a time, establish points that will hurt the claimant's case.  The cross-examination method requires a level of skill and preparation from the examining lawyer.  Fortunately for plaintiffs, few defence discoveries are conducted according to the cross-examination method, and most discoveries proceed on the basis of who, what, where, why, when, and how questions.

The client can do many things to maximize the chances of giving good discovery evidence.  At Ches Crosbie Barristers, we meet with the client to properly prepare for their oral discovery under oath, and we find that clients who prepare for discovery have a much better experience. Here are some quick tips clients can use for giving a good oral discovery:

1.         You can't win an unwinnable case at discovery, but you can sure lose a winnable case.

2.         You will be under oath. Tell the truth--the insurance companies have access to huge databases, and if you have a prior claim, or a bankruptcy, or if you have posted information about yourself on the internet, they will find it. Never exaggerate.

3.         Be "on guard" the whole time. They may act friendly and professional but they are not your friends.

4.         Be pleasant, polite, and don't show any "attitude" or get in personal conflict with the examining lawyer.

5.         Listen to the whole question. Resist the human urge to interrupt.

6.         Resist the urge to tell them "well, what you really want to know is..." or "the question you didn't ask but should have is..." In other words, don't volunteer answers to questions they don't ask.

7.         Don't answer a question you don't fully understand. Say you don't understand.

8.         Don't try to guess "where they are going with that question." Just concentrate on giving good, truthful answers.

9.         If they don't ask the "right" question, tough for them.

10.       Don't guess. If you don't know, you don't know. You are not required to have an answer to every question.  If you are estimating, please tell them you are estimating.

11.       Trust us to protect you from questions not allowed under the rules. We can also clarify unclear answers at the end.

12.       Before the discovery, tell us what questions you are afraid of.

You are not alone in this.  A good injury lawyer will help you to prepare for discovery, but it is you who has to testify, not your lawyer.  Clients who do a good level of preparation and who are able and willing to follow their lawyer's advice will get the best results from their discovery, leading to more money for their injury claim.

http://en.wikipedia.org/wiki/Cross-examination; http://www.howardnations.com/crossexamination/cross_ex.html
http://www.oba.org/en/pdf_newsletter/DTFGeneralDiscoverybest.pdf

What is cross-examination and why should I care anyway? A Primer for Injury Victims

In my article How to Get More Money for Your Injury Claim: Giving Evidence at Discovery, I briefly touched on the importance of cross-examination.  This article explains more about the role of cross-examination in getting you the money you may be entitled to for your injury.

A famous legal authority once described cross-examination as the most powerful engine for the discovery of truth ever devised by man.  This statement of the critical importance of cross-examination to court process is accepted and even venerated by virtually all experienced lawyers and judges.  So what is cross-examination, and why should you care?

If you or someone you care about has a significant personal injury claim, then cross-examination and what you can do about it could be very important.  Read on.

To most lawyers, cross-examination is a method of asking questions of the other side's witnesses, and it means they can ask "leading" questions.  A leading question is one that suggests the answer ("You stopped beating your wife in 2005?").  But leading questions are only part of the story of cross-examination, and lawyers who think it is the full story often engage in table thumping or nitpicking sessions that give the impression of making a point (which nobody can remember afterwards) or peter out without leaving any impression at all.

Yes, cross-examination involves leading questions.  That is Rule #1 of cross-examination:  (1) leading questions only.  But most lawyers do not understand the other two cardinal rules of cross-examination:  (2) establish one fact per question, and (3) move toward an achievable goal.  This goal should be one which harms your adversary's case.

That's it - the only three cardinal rules of cross-examination.  But leave out any one of them and the lawyer is trusting to luck not skill.

One other thing.  Preparation is required to apply the above three rules to maximum effect.  Lots of preparation.

Should you care?  Any accident and injury client with a case important enough to have a lawyer should know that cross-examination can make or break a winnable case.  And there is something important that you yourself can do to stack the odds in favor of winning, other than choosing a lawyer who will effectively cross-examine the other side. 

Most personal injury claims don't go to trial.  Over 95% of accident and injury claims settle.  But the majority of significant injury claims (significant enough to have a lawyer) will go to "oral discovery".  This involves going to a law firm boardroom and being examined under oath or solemn declaration to tell the truth.

So what can the personal injury client do to influence the odds of winning in their favor?  Prepare!  The two or three hours spent in oral discovery will strongly influence the amount of your settlement and may be the most profitable few hours in your life.

A good, experienced personal injury lawyer will help you prepare for this important initial event of oral discovery.  How well your claim fares will depend on how good the defence lawyer is at cross-examination, and how well prepared you are to answer it.  The good news for injury clients is that most defence lawyers are not good at cross-examination, and that you can enormously improve your bottom line results if you prepare for your testimony. 

In the next instalment in this series, I will discuss winning cross-examination at the oral discovery and winning the cross-examination at trial.

Surgery: Making a List, Checking it Twice...

Performing surgery on the wrong site is, in my view, per se negligent and something that just should not happen.  Wrong site surgery is easily avoided by following simple checklists:  identify the patient; ask the patient to identify the intended site of surgery; mark the site; correlate the patient's anatomy with the imaging studies; correlate the site of surgery which what is planned as documented in the medical chart.  But believe it or not, there are still times when these simple precautions are not followed and a surgical blunder occurs.

You would think that the victim of wrong site surgery could settle the case without a lawyer (assuming he or she knew the law on quantifying the money damages arising, which might be a stretch...).  Well think again!  Noted Virginia malpractice lawyer Ben Glass is representing a patient who tried to do just that - settle her own case - by making a very reasonable offer.  Ben's client was met with a blunt denial. 

Ben will give this client access to justice though the device of the contingent fee, and I don't doubt that after taking fees and expenses into account, the client will do much better in her settlement or award than as a "do it yourselfer", but the same unreasonable medical malpractice insurers are busy lobbying in the U.S. Senate to pass a law limiting fees that injured patients pay to their lawyers.  (Luckily, a fee cap proposal was defeated in the Senate last week.)  No mention is ever made of limiting fees paid to defence lawyers.  With enough one-sided changes to the rules, insurance companies may eventually get away with denying recovery even for wrong site surgery - negligence per se!

Malpractice Damages Clear $1 Million

A damages assessment released in July by the Supreme Court of Newfoundland and Labrador, Trial Division, enjoys the rare distinction of exceeding the $1 million level.  The plaintiff in Courtney v. Cleary sued his family doctor for unreasonably delaying a diagnosis of throat cancer.  The injuries suffered by the plaintiff, involving “commando” surgery and long-term disability, were far more significant than they needed to be with timely diagnosis and treatment.

A recent edition of Brown’s Economic Damages Newsletter has calculated the damages awarded, with pre-judgment interest but excluding the general non-pecuniary damages award, as $920,939.  The non-pecuniary damages award for pain and suffering and loss of amenities was $165,000, and this would attract interest also.  The total would be in the area of $1.1 million.

The newsletter contains a careful analysis of the economic part of the decision and those interested can find out more by clicking the link above.  The only other decision in a personal injury case awarding more than $1 million in damages was the one I achieved in the Williams case, overturned by our Court of Appeal.  The Court of Appeal overturned us unfairly on an issue which was neither pleaded nor argued on appeal.  I was unable to obtain leave to appeal to the Supreme Court of Canada, which is given in only about 1 in 10 civil cases.

Should the Courtney decision be appealed I wish Mr. Courtney and his lawyer the best of luck, because in this province no matter how good the plaintiff’s case and no matter how well reasoned the trial judge’s decision, an appealed plaintiff should never refuse luck or prayer.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 8

why Most Medical Malpractice Victims Never Recover a Dime - Part 7

Limit on Recovery for Pain and Suffering

The law imposes a limit to recovery of pain and suffering damages.  No matter how seriously injured you are, the maximum recovery you can obtain is currently $330,000.  This amount for pain and suffering might be awarded in such cases as catastrophic complete paralysis or severe brain damage.  This limit or cap has been set by the Supreme Court of Canada and is constantly adjusted for the effects of inflation.  The vast majority of awards for pain and suffering are well below this cap.

The types of cases which have large enough settlement value to justify investigation for merit and with which we have been successful include:

• birth injuries causing cerebral palsy
• delay in treating bacterial meningitis
• spinal cord or brain damage resulting in quadriplegia, paraplegia or other paralysis
• surgery resulting in serious damage to nearby structures or organs
• undiagnosed heart attacks
• other failures to diagnose serious conditions where timely intervention would have avoided a bad outcome
• pathology negligence, including cancer misdiagnosis
• wrongful death, where there is significant financial loss to surviving dependents (remember, the wrongful death laws in this province are backward and allow no damages for pain and suffering)

Why Most Medical Malpractice Victims Never Recover a Dime - Part 6

Why Most Medical Malpractice Victims Never Recover a Dime - Part 5

Why Most Medical Malpractice Victims Never Recover a Dime - Part 4

In 2008, Medicare funded by the United States stopped paying hospitals for several conditions and infections acquired after a patient is admitted.  Under this policy, the costs can’t be passed on to the patient.

The idea is to make doctors and hospitals more responsible.  It is felt that many problems are preventable and shouldn’t be occurring in the first place if proper procedures are being followed.  The list of what isn’t covered includes:

• pressure ulcers,
• objects left in the patient following surgery,
• air embolism,
• catheter-associated infections,
• surgical site infections, and
• falls and trauma.

This has caused quite a stir among hospitals and doctors in the United States.  U.S. Medicare expects to save millions of dollars and force changes that could save thousands of lives.  Canada should find ways to follow suit.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 3

Why Most Medical Malpractice Victims Never Recover a Dime - Part 2

Why Most Medical Malpractice Victims Never Recover a Dime

My new book is off to the printer.  While we wait to get the printed copies in about two months’ time, I’ll post it up in serial form.  Enjoy!

Who is Behind This Book - and – “Why Should I Listen to You?”

You have done yourself a giant favor by obtaining this book.  The information I give you here will help you if you believe you or a loved one has been injured or killed by medical malpractice.  I personally guarantee it. 

There’s a lot of misleading information out there about medical malpractice claims.  This book will set the record straight, and it’s not a pretty record.

I wrote this book so that you could have good, solid information about malpractice lawsuits, hiring a lawyer or dealing with an insurance company.  Forget the hype.  This book is not about hype.  It’s about the tough, hard fought world of medical malpractice and what you can do to improve your odds of winning if you have a legitimate case.  Even if the doctor committed malpractice, I can’t help you if your case is too small.  The way the malpractice laws are written, there simply is no room for small cases. 

If the doctor or hospital did commit malpractice involving a negligent breach of the standard of care, and you have been seriously or permanently injured by that malpractice - I can help. 

My name is Ches Crosbie and for 20 years I have been representing individuals against doctors and hospitals.  Today I only handle large malpractice and injury cases.  You may know me from my involvement in the Breast Cancer Testing Class Action against Eastern Health, and the Cameron Inquiry.

If you want a divorce or a will, or have a traffic ticket, I can’t help you.  I am one of the few plaintiff lawyers in Atlantic Canada recommended by peer review publications as having a recognized competence in medical negligence.  I am frequently invited to speak to other lawyers on a variety of topics at continuing legal education programs around the country.  I have written numerous articles for lawyers and consumers.  My firm’s popular website has a lot of useful consumer articles and links on a variety of subjects.  Visit www.ChesCrosbie.com if you want to continue your research on malpractice, class actions, and accident claims.

We are different.  We turn down way more malpractice cases than we accept.  But if we agree to investigate your case for merit, and it passes our demanding test and we accept it for litigation, you know you have a high probability of success.

Not Giving Up on VLT Class Action

On Saturday December 19, 2009 the Telegram ran a front-page story on the Piercey family's renewed effort to obtain class action certification.  The story was called "Crosbie not giving up on VLT class action", and the reporter was Barb Sweet. 

The earlier attempt to obtain certification was based on the Trade Practices Act.  Justice Dymond ruled that as a crown corporation, the Trade Practices Act did not apply to Atlantic Lottery Corporation.  So, now we are back, this time with allegations based on breach of the Criminal Code, and breach of s. 52 and s. 36 of the Competition Act prohibiting misleading advertising.  Also, unjust enrichment, breach of contract, and breach of duty to warn in tort.

We hope to have a date for the certification hearing set in a case management meeting with Justice Dymond, on January 18, 2010.  Certification is what determines whether a class action can go forward or not.

You can read the Telegram story at the above link.

Government Decides to Modernize Compensation for Wrongful Death

In my blog and letter to The Telegram in October 2009 "The Shocking Truth About Wrongful Death", I sought to bring the attention of the legislators to the backward state of the law of Newfoundland and Labrador.  Our law makes no provision for compensation of estates for pain and suffering, and no provision for compensation of close family members of victims of wrongful death.  Now in a move which has received less press than it deserves, the legislature has seen the introduction of a private members resolution aimed at much needed reform of this primitive area of our law, and yesterday December 16, the government adopted the initiative and will strike a select committee to make recommendations for amendment of the laws.  My name even got a mention in debates.

Anyone who takes a look at our law of wrongful death will agree that it is not in step with modern conceptions of justice and fairness.  In the interests of needed law reform, I propose Compensation Modernization Act.

The amendments to the Survival of Actions Act are necessary in order to permit estates to claim for pain and suffering experienced by a deceased prior to the death.  This is done in Ontario and elsewhere.

The amendments to the Fatal Accidents Act are necessary in order to permit persons in a close family relationship with a deceased to claim for loss of care, guidance and companionship on a non-pecuniary basis.

When the Supreme Court of Canada reformed the law in 1998 in the Ordon Estate case, it did so on behalf of persons in a close family relationship with deceased persons and with injured persons, in other words persons who had not died of their injuries.  Therefore the inclusion of provisions seeking to extend the right of compensation to close family members in relation to injured persons.

I have for the most part followed the language of the Marine Liability Act, 2001, c. 6, sections 4, 5 and 6, which was Parliament's response to Ordon Estate, inserting a legislative right to compensation in the relevant legislation.  Here are links to the Ordon Estate case and the Marine Liability Act.

 I wish our legislators good luck and God speed with this much needed piece of modern law reform.

A death that still leaves questions - seven years later (Part II)

Imagine our reaction when we were told that our sister’s/daughter’s life was essentially worthless in the eyes of the law; a pretty tough pill to swallow.  Of course had the outcome been different, had she been left in a coma for life or otherwise permanently incapacitated, the potential result would be different.  As Mr. Crosbie pointed out, “…the shocking truth:  it is cheaper to kill than to maim.”

So where has this left our family?  We have tried, with the help of some friends, to pursue the matter directly with Eastern Health.  We naively filed a Freedom of Information request seeking a variety of information surrounding the death.

Guess what?  We are being totally stonewalled by Eastern Health.

Of course, they can see we don’t have a lawyer so they figure we don’t have the resources to pursue this and will ultimately just go away.

Notwithstanding the Cameron inquiry, nothing has changed with regard to accountability and transparency at Eastern Health.  They’ve got one thing wrong though:  we aren’t going way.

A death that still leaves questions - seven years later (Part I)

The following letter to the editor appeared in The Telegram October 17, 2009 as a response to my piece “The Shocking Truth About Wrongful Death”.  It’s time for Premier Williams to do some needed law reform.  My condolences to the Browne family.

I am writing in response to the letter to the editor from Ches Crosbie, published in your Sept. 29 edition, which you headlined “The shocking truth about wrongful death claims.”

Our family is living with the horrible truth of Mr. Crosbie’s assertions.  Our sister/daughter passed away suddenly in the Emergency Department of the Health Sciences Centre on Jan. 13, 2002.  She was 36.  During 2008, we were provided with very credible information (the source of which would not be appropriate to disclose in this letter) to the effect that our sister had died as a result of medical mistreatment that evening. 

After the initial shock of receiving this type of information six years after her death subsided, we felt we had no alternative but to try to seek out the truth.

Suit useless
As our family did not and does not have the resources to pay for a costly discovery and legal proceeding against Eastern Health, we approached a number of local lawyers that deal with these types of cases on a contingency basis – i.e. they would only be paid from a portion of any settlement or judgment ultimately received.

It was then that we found out what Mr. Crosbie was referring to in his letter.  Our sister/daughter had a relatively low-paying job but had no dependents.  She was a source of constant love, assistance and support for our parents, with whom she lived, but they were not her dependents.

We were essentially advised that, even if we were successful in proving wrongful death, the courts would likely only award a relatively small amount of damages and that such an amount would not justify the time and expense (and risk) that a lawyer would incur in pursuing a matter of this nature.