From time to time, I have also been asked to address lawyers on how to win at trial and maintain a high winning percentage.

Forty-four years ago, during an orientation period, prior to commencing first year law school, we were addressed by the honourable john d. Arnup. I recall him telling us, that a good trial lawyer can expect to win 57% of their cases. I was shocked at how low the number was, and remember thinking, that that is no better than what they say about gamblers, that they are doing well if they win 50 to 55% of their bets.

I suppose what it all means is, that Mr. Arnup was referring to one’s winning percentage, assuming we take every case in our filing cabinet to trial and not be selective.

The point really is, we are not gambling with the futures of our clients – we try to make informed decisions. We must be selective in the cases we try, especially considering the expense and risk.

Therefore, before embarking on a discussion of how to diminish the effects of negative evidence in the hands of the defence, my first advice is to settle the case and don’t try it.

While some may say I have an advantage in that I have practiced on both sides of the fence, defence and plaintiff, I don’t think anyone in this room is incapable of reading OHIP summaries, or pre-accident clinical notes and records, employment histories and tax records, and in doing so, relating to our clients, the risks they are taking if they choose to reject an offer, which is reasonable and proceed to trial.

An explanation of the effect of a formal offer to settle is often the most salutary approach.

As well, our retainers should all contain a clause that indicate, that if counsel and client disagree at any stage, counsel may render an account for an agreed upon hourly rate.

However, there are cases where there is difficult evidence to deal with involving a client who, in your view, is deserving of compensation and yet the defence offer is either too low or non-existent. It is to those situations that I address my comments today.

Pulling the teeth out of the defence evidence

Defanging the anticipated evidence of the defence in one’s opening is absolutely mandatory. If one is up front that your case has some hiccups involved, that the jury or the court will have to decide, then you won’t risk losing credibility with the court who may later ask themselves why you withheld this negative evidence.

Keep in mind that the evidence is far more damaging coming from the defence counsel in the first instance, than it is when presented in your opening with the explanations you will give.

Negative Employment Histories

(1) Depending on the age of the plaintiff, for example not much above the age of 25, I have constantly heard social scientists and vocational experts testify to the fact that this only reflects the immaturity of the plaintiff to date and is not a predictor of the future….. With maturity and the assumption of responsibilities, for instance for a family, or simply providing a reasonable lifestyle for themselves, studies demonstrate that employment histories do become solid with age and maturity. I think this evidence can overcome a poor work history even with a 25 year old who has only worked from time to time.

(2) Once we are dealing with plaintiffs who are in their thirties or above, I am totally convinced that it can be a fatal error to, for example, ask the court to accept that although your client has averaged substantially less money in the years preceding the last two years that predate the accident, that you are going to forge ahead based only on the last two years. I think that is a large mistake and suggest that you must give at least one scenario, through your forensic accountant, to the jury, where the future projected loss of earning capacity does take into account the annual earning average over the last five, or perhaps slightly more, years which pre-date the injuries and accident, with of course an adjustment for inflation.
Obviously, had there been a significant change preceding the last two years, such as a promotion or a new position, which provided increased earnings and job security, then I would not hesitate to present evidence only of a future loss reflecting that earning power.

(3) In my practice, I deal with a good deal of recent immigrants who, let us say, after arriving in this country, are in an accident. Oftentimes there is a language barrier, and they take jobs for which they are overqualified. For example, one often sees engineers working on an assembly line, or formerly successful business people working in jobs which under compensate them.

When defence counsel suggests that future earning losses, should be based on their earning history for the first two years in Canada, I often tell the jury that my friend, should first answer the question for them, as to how much money he thinks he would earn, had he moved to a country where his qualifications were not recognized and he didn’t speak the language.

I don’t think it is going overboard to suggest that these recent immigrants have both ambition (they took the trouble of coming to this country) and a record of success in their country of origin, will likely do reasonably well once they learn the language and obtain a position more consistent with their qualifications and training. I would remind the jury, or the court, that Frank Stronach, the founder of magna, made substantially less than $10,000.00 his first several years in this country.

Whatever the situation, you must disclose it in your opening address and explain and how your vocational expert, and the testimony of others, will explain why the earnings would have increased absent the injuries from the accident.

Inconsistent or Incorrect Discovery Answers

It is unforgivable for counsel heading into trial to not cross-reference discovery answers with the actual evidence anticipated. Where there are inconsistent or incorrect answers, they absolutely must be corrected formally, prior to trial. That takes a lot of bite out of putting the contradictory answer to the plaintiff because it is always open to you to point out that this was corrected well before trial.

For example, oftentimes people are asked about symptoms, which they deny, thinking that they were only being asked about symptoms that caused them disability and not just symptoms that they might have complained of from time to time.

Faes and Investigations

I group these together because, aside from video surveillance that contradicts discovery evidence (which should definitely lead you to settle the case), neither functional abilities evaluations or surveillance, is anything more than a snapshot of the plaintiff’s ability, on the date in question, for the moment in question.

I would tell the court, that not one doctor that the defendant will call, will be prepared to say that where it shows the plaintiff being mildly active either physically or socially, even on a number of different occasions, it does not mean that the plaintiff had then or is now, capable of returning to employment five days a week, for seven or eight hours a day. You will therefore tell the court, that your doctors will also tell them of this fact, and that you intend to ask the same question of any doctors defence counsel may call.

Chronic pain case – the defendant calling evidence that there is no physical explanation for your client’s disability

You must in your opening let the court know, that you intend to call physicians who will testify that chronic pain may be as disabling as any other type of injury, and, there is no known cure.

I also do not hesitate to advise the court that I will file in evidence the directive from fsco, sent to all dac doctors, to follow the supreme court of Canada decision from march 2005, which points out that chronic pain must be considered as a differential diagnosis by any doctor, and, echoing the supreme court of Canada, who basically stated that modern medical evidence supports the fact that chronic pain can be a very disabling illness.

Another medical fact to disclose to the jury is that your doctors, and hopefully the defendant’s, if they are being candid, will testify that it is a characteristic of chronic pain that patients experience both good and bad days. While this makes it very difficult for the plaintiff to return to work, it does explain, for example, why on video, the plaintiff may appear to be moving in a fluid fashion and able to do certain things.

You will also let the court know in your opening, that doctors tell chronic pain patients to be as active as they can be, when they can – and that you anticipate that none of the doctors who will testify, for either the plaintiff or defendant, will contradict that statement.

Prior medical history

Defence counsel tend to get very excited when they review pre-accident medical histories and find such things as headaches, back pain, neck pain, fractures, etc. They really ought not to get that worked up about it because it does not usually mean, especially when accompanied by a return to work preceding the accident, along with a reasonable employment history post-recovery, that somehow the future will be bleak for your client. Always be sure that your doctor will testify that there was nothing in the pre-accident medical history, that could create so much as a reasonable possibility, that the plaintiff would fail to work to retirement absent the injuries sustained in the accident. Let the court know you will be calling that evidence.

Anecdotally, some of the most fun and success I have had in cross-examining defence doctors, is in pursuit of those who choose to contradict the above evidence.

One warning. Don’t fall into the defence trap of talking about people, such as terry fox, who have overcome cancer or some other dread disease, and returned to activity or to work. It tends to beg the question as to why you are telling the court that your client will never return to work. Stick to letting the court know that through your doctors you will present evidence in the form of statistical studies showing that only one in twenty persons who are out of work for two years because of injury, ever return to work. There are other studies which are equally as helpful.

I trust this paper will be of some use to you in the future.