Documenting the damages
After a person is seriously injured, their support network of family, friends, doctors, and therapists generally rallies around to help them focus on all the good things left in their life, and on how to recover as much normal function as possible.
Then the lawyer comes in. And since their job is to help their client (now a “plaintiff”) collect full compensation for both present and future losses (damages), the lawyer starts going over what the plaintiff has lost and how their situation might get worse. Does it interfere with the healing process?
It shouldn’t and here’s why:
- Mitigation – However money or injury- focused a plaintiff might become, they have a legal obligation to try to get better (see “The Duty to Mitigate” below). Every lawyer knows this and should, with the rest of the plaintiff’s support team, encourage efforts to do that.
- The rest of the iceberg – Beyond legal obligations or compassion, a lawyer strives for an accurate assessment of their client’s damages, not an exaggerated one. Why? Because a plaintiff’s case generally only settles or wins at trial to the extent that damages claimed are both credible and consistent with all of the other evidence about the plaintiff.
Therefore the lawyer’s contact with the plaintiff may be only the tip of the iceberg in the lawsuit. A good lawyer will meet or communicate with the plaintiff’s treating doctors, caregivers, employer, friends and family members, often without the plaintiff there. With these people the lawyer discusses the plaintiff’s recovery and determines what problems and achievements have been observed. It lets the plaintiff focus on healing while the lawyer builds the case.
Sometimes the objective evidence collected even compels a lawyer to pursue a claim in spite of a client. Many people who sustain serious injuries expect to recover completely. When that doesn’t happen, they and their family members go through stages as if they were mourning the “death” of the previous person. Instinctively they deny that they will be any different from what they were before. With a brain injury, the denial is also often exacerbated by a lack of insight on the part of the accident victim. Everyone else is blamed for the person’s inability to keep his or her temper in check, hold down the same job, or maintain long-term relationships. A good lawyer understands this process and works within it. They remain sensitive to the evolving emotional states of the injured person but also take the necessary steps to document the full extent of that person’s losses, subjective and otherwise.
- Separation of Witnesses – If the lawsuit does finally go to trial, many people assume that the plaintiff must sit through the trial from beginning to end. This is not so. If there is any concern that the plaintiff will be negatively affected by evidence of ongoing deficits and problems, the lawyer will likely arrange for the plaintiff not to stay in the courtroom. With the plaintiff gone, witnesses can speak freely about the plaintiff without worrying that they might hurt the plaintiff’s feelings or further erode the plaintiff’s self-esteem.
Thus, the plaintiff’s feelings are spared where they can be, their positive focus preserved as much as possible, and hopefully a settlement is reached or trial award won that helps the long term healing truly begin.
The duty to mitigate
When a person is injured due to the negligence of someone else, the law tries to have the injured person compensated. But it also places a duty on all plaintiffs to first mitigate (or minimize) their losses by taking all reasonable measures to recover.*
In practice, this means that if doctors recommend that the plaintiff undergo an operation or some other treatment, and there are no significant contra-indications (such as treatment risks which outweigh the proposed benefit arising from the treatment), the plaintiff is expected to proceed with it. If the plaintiff unreasonably refuses to undergo the recommended treatment, damages will be assessed as if the treatment had been undertaken and the plaintiff’s condition thereby improved. This is done even if the plaintiff, untreated, continues to suffer as before.
An interesting issue arises where doctors are divided as to the merits of the treatment. The general rule is that “as long as a plaintiff follows any one of several courses of treatment recommended by the medical advisers he consults he should not be said to have acted unreasonably.” (Janiak v. Ippolito  1 S.C.R. 146 )
Still, the duty to mitigate provides a strong incentive for the plaintiff to try all reasonable treatments before a settlement is negotiated or trial held. Otherwise, they face an argument from the defendant that if they had only tried X or Y treatment, they would not be suffering as much, or would be able to work more, etc. so their damages should be reduced by a corresponding degree.
All of which should, frankly, be in line with the plaintiff’s own goal of recovering as much of their pre-accident life as possible. They try the treatment and enjoy improved health, or they faithfully try the treatment, remain disabled, and their vigorous efforts make their case for full compensation that much stronger.
The key to all of this, of course, is that a good lawyer must be the plaintiff’s advocate from beginning to end. They may press the defendant for ongoing payments, arrange referrals within the medical and rehabilitation community to obtain continuing treatment or to pursue vocational and other types of rehabilitation, and they constantly document what is known of their client’s injuries and recovery. They don’t interfere with, they are part of, the healing process.
*Actually this duty is placed on all plaintiffs who are capable of acting rationally. It does not apply to a plaintiff who was, from the outset, incapable of acting rationally.
Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.
This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.
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