How to Find the Best Personal Injury Lawyers and Compare Legal Fees in Ontario
We trust that the general information set out below will provide you with some useful tools that you can use to find the best lawyers for your case and obtain the highest compensation. We hope that the information will be self-explanatory such that you will not need to contact our office.
While you may be contacting us, please be cautioned that there can be important deadlines for mandatory notices and limitation periods under the law that may bar your claims regardless of whether you are legally represented or not. In some cases, mandatory notices to potential defendants or reports to the police might be required within as little as 24 hours (for example, some auto accidents involving unidentified motorists), or 7 days following the accidents (for example, some auto accidents involving poor road maintenance), with possibly some limited exceptions to extend such timelines. The information above and on our website is only general information and may not be applicable to your factual situation, and should not be relied on without first consulting and retaining a qualified lawyer for specific legal advice that may be applicable to your specific situation.
General Information on Finding the Best Lawyers and Comparing Legal Fees
The right lawyer for a catastrophically injured person should be highly experienced, committed and professional. For catastrophic cases, hiring the right lawyer is the most important step.
When a lawyer or a judge unfortunately needs an injury lawyer, who are they going to call? Surely they will check out for the right lawyer, and they will not go to a lawyer or law firm just because they have the biggest advertisements. We would like you to have a good chance of finding on your own the right lawyer for your case. We believe the right lawyer will likely get you more money in your pocket, treat you more fairly with the highest levels of decency and respect. They likely make fewer mistakes in your case that may cause you more delay and suffering. Importantly too, they may even charge you lower percentage fees. Because the right lawyer will also likely get you a higher settlement because of their high experience and dedication, they may end up giving you significantly more money in your pocket for your care and losses. They may ultimately cost you far less in some serious or catastrophic cases.
The best lawyer or the right lawyer for a particular case can be any lawyer, young or old, who is willing to spend a lot of time to do a lot research, read a lot of cases, go to meet and ask a lot of questions from the experienced, leading lawyers, spend a lot of time reviewing and learning about the very complex laws and procedures, the endless medicine, the complex facts and learn how all of these will intertwine and be argued and accepted in a contested hearing or trial.
In practical terms, from our experience inside the field of personal injury, the chance of finding a young lawyer with less than 5 years of experience who has all of the qualities required to represent a catastrophic case well is around 1%. In other words, that lawyer is very hard to find or nearly non-existent. The chance to find a young lawyer with less than 10 years of experience who will expertly protect a catastrophically injured victim is around 5%. In other words, it is rare, as 95% of the time, it is not the right lawyer. Even for senior lawyers with 20, 30, or 40 years of practice, the chance of finding the right and expert lawyer by a catastrophically injured victim is still rare, at probably less than 10%. It means 90% of the time, you may still not get the right lawyer.
What about a lawyer who is referred by a good friend or a loving family member? That is a convenient start, but it is only a start. There is no reason not to review the quality of that lawyer by using our guidance below. Friends and family may have had a good experience in dealing with the lawyer on a real estate matter, or a business matter, or a much less serious injury claim. However, dealing with catastrophic injury cases is like dealing in a foreign language that none of the friends and family can understand and judge the lawyer before referring to you.
As an example, in one of the reported cases, a caring family had hired a large and reputable law firm to deal with some business matter, and later referred a family member to the injury lawyers in the law firm when the family member was catastrophically injured. The injured person made a remarkable recovery given the initial severe brain injuries. After five years, the injury lawyers pushed to settle the case for $400,000 shortly before trial. Despite the trial was to start in less than a week, a new lawyer was able to obtain a postponement of the impending trial and re-worked the case. After several years, the new lawyer won a verdict for more than 10 times the amount the family lawyers would have settled for. Our point to you to remember here is this: our guidance below is simple to do but it offers very important protection for you. We do not fault the family. They had more trauma than anyone can imagine on their plates. The law is complex and dependable legal representation can be elusive. If the family had the benefit of our simple guidance, with the opportunity and headspace to consider it, we trust that they would have a better chance of realizing that the injury lawyers they referred their family member to had little proven expertise and commitment. They were not certified specialists and have not won any significant injury verdicts. Therefore, they seemed lacking in both experience and commitment.
Following is the simplest guidance we can offer which provides the best chances for you to find the right injury lawyers. Our guidance is objective as it relies mainly on two criteria that are verifiable.
1. Is the lawyer certified by the Law Society of Ontario as a specialist in civil litigation? (20% - 25%)
Certification as a Specialist by the Law Society is the highest professional certification in Canada for lawyers practicing in Ontario, and is the only official recognition of expertise in Ontario. This is also the only official certification where the records of complaints and legal malpractice by former clients against the lawyer, along with any extensive and leading expertise, and professionalism of the lawyer are examined by the Law Society before certification is awarded. According to the Law Society, Certified Specialists are recognized leaders in their fields. Less than 1% of Ontario lawyers are Certified Specialists in civil litigation.
To check for yourself if a lawyer is certified as a specialist in civil litigation by the Law Society, visit the Law Society of Ontario at www.lso.ca. Or, for ease of access, click on this link below and it should lead you to the list of certified specialists in civil litigation for your own review and consideration:
https://www1.lso.ca/specialist/#/specarea-list/cvl
This list of specialists includes specialist lawyers who practice many areas of civil litigation, not just personal injury on behalf of injured persons. As of June 2021, the list shows 269 specialists in civil litigation while we estimate that there are about 40,000 lawyers who are registered with the Law Society. The specialists are listed in alphabetical order, firstly by the cities where their main practices are located, and secondly by their names. Out of the 269 specialists, many of them are "defence" lawyers, defending lawsuits brought by injured persons. Defence lawyers typically are hired by insurance companies although some of them occasionally represent injured persons. Whereas "plaintiff" lawyers are those who mostly represent injured persons. There are currently about 100 specialist lawyers on the list who appear to be plaintiff lawyers.
From this list of specialists, unfortunately, you may need to click on their names to see if they have a website that you can visit. Or you can google them for their firm websites. Then visit their websites to view and consider their biographies, compare their record of winning verdicts etc...
By selecting a certified specialist in civil litigation who is a plaintiff personal injury lawyer, you probably have secured a 20% to 25% chance that your lawyer is the right lawyer for your case. A much higher chance than just any random personal injury lawyer even with 20 or 40 years of experience.
2. Does the lawyer have a record of winning a large verdict? (40% - 45%)
We observe that the legal marketplace is very confusing for the catastrophically injured. To reduce confusion, our explanation below on the difference between a settlement and a winning verdict should help.
A settlement amount is not a good indicator to predict experience and commitment
It should be noted that a settlement is not a winning verdict because it is not a verdict in the first place. A verdict is an Order actually issued by a court or a tribunal following an actual trial or hearing, whereas a settlement is an agreement between the parties to resolve the dispute, and to walk away without further contesting for larger amounts by the injured person.
A lawyer with 8 years of practicing law can settle a catastrophic brain injury to a 20 year old victim, who needs extensive future care for the rest of his or her life, for an amount of $2 million. That may sound like a lot, and a good result to a lot of people. However, a more experienced and committed lawyer may not accept that amount. The same case may result in a large winning verdict of more than $8 million. A good settlement to an experienced and committed lawyer can be $4 million or more, not $2 million.
No one knows whether the $2 million settlement is adequate, good, or terrible because no one is allowed to look at the personal medical information of the injured person, other than the injured person's lawyer. Privacy laws are very strong, and same for the protection of lawyer-client confidentiality.
Without reviewing the personal information, the medical needs, and other details of the injured person, generally no one else can or should have confidence in concluding that the settlement was a good result for the victim. What if at the time of the accident, the 20 year old victim had straight A+ grades in his or her first two years in a top university program that would strongly support more than $3 million in projected future income loss alone, before even considering medical treatment and attendant care needs which can exceed another $8 million, for a total of more than $11 million? Our point is that any confidence in the levels of experience and commitment of the lawyer who settles for $2 million cannot be objectively supported because no one else can review the full private and confidential information of the injured person. A large settlement amount may sound impressive and look attractive, but is of little assistance to a seriously injured person in their search for their best lawyers. There is a possible exception where a settlement may indicate an excellent result achieved through high experience and commitment - that is when a settlement is at least about $8 million, which is about 50% of the highest verdicts possible (about $15 to $20 million) under the law.
In any event, in our observation, a lawyer generally does not need high experience and commitment to settle, and to walk away from fighting for a higher amount. But a lawyer does need very high experience and commitment to battle on, to contest and win a large verdict. In our guidance, we believe that it is important to focus on a large winning verdict as an objective demonstration of experience and commitment of the lawyer, not settlement.
A large winning verdict is the best indicator of commitment and experience
A record of winning a large verdict carries the highest chance of all factors. It should add an extra 40% to 45% to your chances of having found the right lawyer. Just as a specialist surgeon should not be seen as an experienced and leading surgeon if he or she has not gained judgment and experience through successfully completing complex operations. In personal injury law, the most complex operation in our experience is the successful conduct of a complex and difficult hearing which is vigorously fought by an expert lawyer hired by an insurance company, leading to a large winning verdict for a catastrophically injured victim.
Learning how to do surgery is one thing. Actually applying the knowledge through an assessment of the patient's unique and complex medical characteristics in real time, on the operating table, leading to a successful result is the ultimate validation of the highest skills and judgment that may be sought in a surgeon.
In catastrophic injury law, the most valuable skill and judgment of a lawyer is his or her assessment of whether or not the best offer to settle by the insurance company is much lower than a likely potential verdict, under all of the circumstances of the case. The insurance company will set "the bet" by making its best offer, for example two million dollars in a catastrophic brain-injury or paralysis case, and in its expertise, has decided that the victim will not be able to beat that offer. The company has done thousands of cases and has extensive experience.
The victim's lawyer has to draw upon his or her best ability to assess the strengths and weaknesses in the case. What is the best experience to allow the lawyer to do this assessment? How does the lawyer know or have confidence that he or she likely has a significantly stronger case and higher likely verdict than the insurer's best offer?
There is no short cut to gain this experience, the experience of evaluating whether one has a winning case - a much higher verdict than the insurer's best offer - or not. This is the ultimate experience in injury law and it is not easily gained. It requires many attributes, one of which is a deep care for the well-being of the victim's lifetime. It is this care for justice that drives a lawyer to contest many offers that she believes as being genuinely unfair for her client. It is this care for justice for her client that enables a lawyer to reject a two million dollar offer, and her own large and immediate legal fees, in order to reject the offer, fight on and ultimately win a larger multi-million dollar verdict. She could have lost it and the payment for all of her legal fees too, but in her best professional dedication and expert assessment, justice for her client requires her to put the client's interests first, and not settle.
We wish to briefly digress here to pay our professional respect to one special lawyer, Ms. Nancy Ralph. Our narrative in the previous paragraph portrays her professionalism and dedication to her clients. In a span of just a few months in about 2006, she won not one but two record verdicts in personal injury law in Ontario. An unprecedented accomplishment that has not been and likely will not be repeated. Importantly, she was also generous with sharing her professional knowledge, readily and freely on her website. She has since retired, having exemplified the best aspirations of a professional.
In our experience, no lawyer can win a contested multi-million dollar verdict without the highest levels of expertise, of courage, and of dedication to the catastrophically injured victim who is helpless and who relies on the lawyer as the last line of defence for a reasonable level of lifetime care and compensation. There are no windfalls in catastrophic injury cases. A large verdict occurs because the victim reasonably needs it for care, all based on clear medical needs. But a large contested verdict is never won without highest degrees of expertise, courage and dedication on the part of the consummate legal professional.
A lawyer who wins a large verdict, in a complex case that is contested by an insurance company, does the legal profession proud. A lawyer should appreciate such a question from the injured and proudly provide a copy of such a contested verdict. Regardless, you have the right to ask the lawyer for a copy of the contested verdict (there is a difference between a contested and an uncontested verdict: an uncontested verdict is a verdict where there was no opposing lawyer and the verdict was therefore uncontested).
3. Does the lawyer charge a fee that reflects risks, complexities, time, expertise and results?
While the first two steps above can be objectively determined, with regard to the third step, the precise contingency fee percentage that is reasonable cannot be readily or summarily determined, especially at the early stages where a contingency fee agreement is entered into. Below is some general information we can offer from our experience for your consideration on evaluating fee percentages.
1. For those who are very seriously, fatally, or catastrophically injured in a car accident while not at fault for causing the accident, a contingency fee of 15% or less is in the low range; 16% to 25% in the middle range; and 26% or more in the high range.
2. For those who become wheel-chair dependent and who are not at fault in the accident, a fee of 10% or less is in the low range; 11% to 20% in the middle range; and 21% or more in the high range.
3. For those who are not at fault, and whose injuries are not serious and are invisible (such as soft tissue injuries causing some chronic pain), a fee of 25% or less is in the low range; 26% to 40% in the middle range; and 41% or more in the high range.
4. For those cases where the question of who is at fault is not at all clear, there will be increased risks of damages being reduced proportionately to reflect the degree of fault, or liability, on the injured person. If these risks are significant, additional 5% to 10% of fees may be added to the above fee ranges for categories 1 and 2. As to the category 3 above, if the injured person is at fault for the accident, it may become hard to even find a lawyer to represent them.
5. For those involved in medical malpractice cases against doctors or hospitals, the liability issues are typically much more complex, regardless of the degree of suffering or damages. The typical fee in medical malpractice cases is about 40%. Variations in the nature of the liability issues, and the extent of damages, would suggest that a fee range in medical malpractice cases is from 33% to 50%. It is estimated that more than 90% of the medical malpractice complainants cannot find a lawyer who would agree to represent them even if they are willing to pay a higher contingency fee such as 75% or more (there is no express maximum cap under the law on the amount of contingency fee, other than the legal restriction that the total fee cannot be more than the total settlement amount exclusive of disbursements and taxes).
6. For those involved in slips and falls, and long term disability claims other than being related to car accident claims, the fee percentages are more similar under category 3 above, with small adjustments of up to about 5% lower or higher depending on the seriousness of the injuries and impairments, and of the clarity of the liability issue.
7. For those cases that are uncommon and are not captured in the above categories, the contingency fee amounts may be higher as a result of higher risks and higher levels of complexities, time, and expertise involved. The first six categories above should capture a large majority of injury cases, but there are exceptions.
8. For all of the above cases from categories 1 to 7, it should be noted that the percentage rates usually include work up to and including the first level of hearing (a trial or a substantive hearing at the Licence Appeal Tribunal), but usually do not include any further appeal to the Divisional Court, the Court of Appeal of Ontario, the Supreme Court of Canada, and any further hearings as a result of these appeals. Comparison of fee rates should consider these extra levels of work and experience involved.
Expertise and Commitment Are the Two Most Important Factors - Not Fee Percentages Alone
(A) Expertise
1. It is worth repeating and emphasizing that it is very important when comparing the amount of fees between lawyers to remember that the percentages do not matter as much as the expertise of the lawyers and their record of professional commitment to do the best for their clients.
2. As further illustrated and argued below in our writing to the Law Society of Ontario, a mediocre lawyer who charges a 30% fee, but has only 30% of the experience required, and obtains a settlement of $500,000 is far worse for the injured person than compared to a lawyer who is a Certified Specialist with the Law Society of Ontario and who, for the sake of illustration, charges a higher fee of 40% (although in practice, their rates are typically the same or lower than those of mediocre lawyers), but puts in 100% of the specialized experience required, and obtains a settlement of $1,500,000. The mediocre lawyer therefore charges about $150,000 while the Specialist lawyer charges about $600,000. But more importantly, the mediocre lawyer gets about $350,000 to the client while the Specialist lawyer gets more than $800,000 to the client - a difference of more than $450,000 for the client - more than double what the mediocre lawyer achieves.
3. Therefore, while a comparison of fee percentages is important, the comparison should not be between apples and oranges, or between mediocre lawyers and lawyers with proven expertise and winning verdicts. The reminder here is to focus on finding lawyers who are objectively-verified as having specialist experience, with a proven record of courageous and skillful representation leading to large winning verdicts.
(B) Commitment
1. Even when the comparison of fees is between lawyers with expertise and large winning verdicts, it is important to remember that ultimately the fee percentages are still less important than the honest commitment of the proven lawyers to put in the hours, days and weeks of intense work as may be required at times for the best results to their clients, despite their busy schedules and their past successes.
2. In complex or catastrophic injury cases, high experience must be combined with high commitment to obtain the best results for the client. But how do we evaluate commitment? It is difficult, but it is not impossible, as further discussed below and elsewhere on our website.
3. It is worth re-emphasizing and a further illustration of commitment with an example. In a catastrophic brain injury case, a lawyer with more than 20 years of practice obtained a final offer from an insurance company for $600,000. Twenty years of practicing law can be considered to be a lot of years and therefore good experience by the general public. But this lawyer did not have much expertise and was not experienced specifically in claims involving catastrophic brain injury. This lawyer pushed the client to accept $600,000. The client changed representatives and retained a second lawyer.
4. The second lawyer had relevant expertise and was able to obtain a final offer for $2 million to settle, which was a very good result. If this lawyer wanted to settle, this lawyer could have easily convinced the client to settle for $2 million, and the lawyer would have secured a fee payment of about $600,000, finally getting paid after several years of working on the claims. The client already had a bad experience with the first lawyer. The client could see the big difference in the quality of work and experience of the second lawyer, and would have accepted any recommendation from the second lawyer to settle. What would this second lawyer do at this important point - to settle or to fight on?
5. What the second lawyer should do at this point depends mainly on his or her professional ethics, specifically the honest commitment of the lawyer to the client's best interests. The lawyer must be fully equipped, not only with expertise, but more importantly with commitment to do what is best for the client, and not what is desired by the lawyer which for most lawyers would be to get a quick and very large payday of about $600,000. Should the lawyer risk everything, reject the offer, and proceed to a long, difficult and expensive hearing to hopefully win an amount that is more fair and reasonable to the client, one that will pay for a much higher quality of life than a $2 million offer could do for the badly injured client?
6. It is the commitment to the client, and not the desire to immediately get a very large fee, that will be the test for this second lawyer. Guided firmly by professional ethics, the lawyer took the expertly-calculated risks in the client's best interests, recommended rejection of the final offer of $2 million and fought on. The lawyer went through a long hearing, won a large verdict, and the client's best interests were protected by the lawyer's commitment. The client's future quality of life was much improved with more than $8 million in compensation achieved, as a result of the lawyer's commanding professional ethics and expertise.
7. How can you find a lawyer experienced and committed like this second lawyer?
8. The good news is that there is a relatively easy and objective way to try to find such a lawyer by yourself: you look for the record of winning verdicts of a lawyer. When any lawyer wins any verdict, large or small, in 100% of the cases, there is a paper trail which documents the verdict. For every verdict, there is an Order or Judgment formally made and dated by a court or a tribunal, 100% of the time. If a lawyer has won a large verdict, they should be proud to give you a copy of the actual Order or Judgment granted by a tribunal or a court for your confidence and ease of reference. Such an Order or Judgment will state the exact amount to be paid, and describe whether or not the verdict was contested by any opposing party or insurance company.
9. If the second lawyer had folded, and accepted the final offer of $2 million, there would not be any contested hearing, and there would not be any winning verdict. So for a lawyer who has practiced law for 40 years but had never contested in an actual hearing, therefore settled in 100% of their cases, there would be no record of a winning verdict. Such a lawyer had never done what the second lawyer had done.
10. The point here is that if you look for a lawyer like the second lawyer above, then look for a lawyer with a record of winning a large verdict. A verdict is different from a settlement. A verdict only occurs where there is no settlement reached, following a rejection of the final offer to settle. A lawyer like the second lawyer above is a skillful, committed professional, and commands our highest respect.
11. A track record of winning large contested verdicts is important in reflecting high commitment by a lawyer, but that is still the past and it cannot predict the future. What can you do to promote and ensure future commitment? As to their future commitment, injured persons and their families should interact promptly and courteously with their lawyers in order to become better informed, to support and unite with their lawyers, becoming a formidable team for a committed pursuit of success. Each team member supports and facilitates the others to prepare their best for winning: with the injured persons and their families becoming informed, reasonable and credible witnesses, and the lawyers becoming intimately versed with even the smallest but fundamental facts and evidence from the lives of their clients. Easy, effortless, frictionless co-operation in turn helps to create the environment for future success. In such a team environment, legal work to pursue injury justice is not only a privilege, it is a pleasure.
12. And finally, back to the comparison of fee percentages between experienced lawyers. As noted earlier, a committed lawyer such as the second lawyer above can deliver a superior result (more than $8 million) when compared to an experienced lawyer who would have accepted the $2 million settlement for the same client. Therefore, the client of the lawyer who charges 30% or $600,000 in fee for a settlement of $2 million, actually receives only about $1.4 million. Whereas the client of the lawyer who wins $8 million, even if the lawyer charges 50% or $4 million, actually still receives a much higher amount of about $3.5 million after taxes. The point is that the fee percentages should not be the most important factor. Therefore, to conclude, the most important factors ranked from high to low in our view are (1) commitment - typically shown by a large winning verdict; (2) expertise - typically shown by specialist certification or a large winning verdict; and (3) fee percentages.
From our observations in over 25 years of experience, we estimate that experienced and committed injury lawyers achieve better results when compared to average injury lawyers as follows:
(a) At least 25% larger settlements on average for catastrophic injury cases;
(b) 50% larger settlements in at least 20% (2 out of 10) of catastrophic cases;
(c) 100% larger, or twice as large, settlements in at least 10% (1 out of 10) of catastrophic cases;
(d) 1,000% larger, or 10 times as large, settlements in at least 1% (1 out of 100) of catastrophic cases; and
(e) There are many known serious and catastrophic cases where they were nearly thrown out of court, or were settled for less than $100,000, or $50,000, or for even $10,000. Fortunately, a few of them were able to subsequently find more experienced and committed lawyers, and were lucky enough to overcome their disastrous history, to ultimately achieve much more than $1,000,000. But unfortunately, for the vast majority of the injured victims in these cases, they just would never know that they were further victimized. Justice failed them, silently.
Effective on July 1, 2021, the Law Society of Ontario requires a consumer guide to contingency fee to be provided to every client who enters into a contingency fee agreement. The guide represents a significant enhancement in the protection of the public involving contingency fee agreements. Given that its focus is about contingency fee across many areas of law, it does not appear to contain much guidance relating to the challenges of finding the right lawyers for the seriously or catastrophically injured. That guide may be found by clicking here: "Contingency Fees: What you need to know - A guide from the Law Society of Ontario".
General Information to Understand How Wrongful Life Sentences in Injury Cases Might Occur:
Below is an article adapted from our writing to the Law Society of Ontario to highlight the dangers of wrongful injury settlements in catastrophic injury cases. The effects of such dangers on catastrophic injury victims share many similarities with those who are wrongfully convicted of the most serious crimes. In criminal law and employment law, "wrongful convictions" and "wrongful dismissals" are well-known concepts and experiences. We want to direct greater attention to "wrongful settlements" in personal injury law to improve the well-being and quality of life of those most gravely or catastrophically injured. We urge the Law Society of Ontario, the governing body of all lawyers and licensed paralegals, to consider providing better information to educate the injured public regarding the universally "free" certified-specialist legal care, and regarding how to objectively compare to find the best legal care for catastrophic injury victims.
"PREVENTING LIFE SENTENCES BY LEGAL REPRESENTATION"
Tiffany: 20 years old college student – multiple skull fractures in car accident with catastrophic brain injury – not at fault – permanent facial disfigurement – requires permanent 24/7 supervision and lifelong pain management - aggressive behaviour – suicidal risks - abuses alcohol to control pain - criminal charges for assaulting police and others – permanently disabled from working – Settlement avoided: $450,000 (or approximately $9,000 a year for life)
Donald Marshall, Jr.: 17 years old at time of stabbing death of acquaintance Sandy Seale in 1971 in Sydney, Nova Scotia – wrongly convicted of murder and sentenced to life imprisonment – spent nearly 11 years in prison - released in 1982 and acquitted in 1983 – an inquiry and a royal commission determined legal representation was a material cause of wrongful conviction among many others causes
1. Silent Life Sentences
Wrongful injury settlements may impact lives and families no less than wrongful convictions and incarcerations. In a catastrophic case, a wrongful settlement may practically impose a life sentence of avoidable physical and mental suffering and excessive safety risks as a result of grossly inadequate compensation for care and support.
Victims of wrongful convictions in the criminal justice system know they did not commit the crimes and can further pursue their rights and justice, as Donald Marshall Jr., David Milgaard, Steven Truscott among others did. These men were able to vacate their life sentences by their own voices, amplified by the media and reverberated by inquiries and royal commissions.
Same cannot be said for victims of life sentences in the injury justice system who suffer in near complete silence, rarely ever knowing that they had been victimized. No inquiries, no royal commissions, and no apparent traction anywhere in Canada. They are overlooked, misunderstood, voiceless and defenseless when their legal representatives or the civil justice system failed them. Their catastrophic plight deserves attention and strong proactive prevention.
2. Seriously injured Ontarians have “free and universal” specialist legal care
When Ontarians face serious injuries, they largely do not know that there is such a thing as certified specialist legal care, and that the specialized care is as “free” as any ordinary legal care.
Specialist certification in the legal profession is a relatively recent development as compared to that in the medical profession where knowledge of its existence is practically universal among Ontario families. Public knowledge of specialist certification in the legal profession appears to be limited, thereby impairing their access to specialized legal care when they need it the most.
Furthermore, there is a pervasive public impression that all lawyers are expensive and charge for every minute of time spent, including first consultations. Additional public sophistication is required to know that in injury cases, the practice of offering free initial consultations and no upfront fees among injury lawyers is “universal” (as there is practically no personal injury lawyer who charges fees upfront for services or first consultation). A very large segment of the public does not know that they can afford specialized legal care. The significant extent of this ignorance is reflected by the prominence of advertising slogans such as “No Win No Fee”, “Don’t Pay Until You Win”, “Free Consultation” and the like. Such slogans are perceived to be so attractive to the uninformed public such that many leading injury firms have also adopted some similar variations in their marketing.
Being uninformed, seriously injured persons may be impressed that any lawyer who does not charge for initial consultations or upfront fees represents a “good deal” to be had, or a kind, compassionate hence good lawyer to be retained, without further comparison for true quality. For thousands of Ontarians each year who face serious injuries, they are still left to their own misinformation in navigating an increasingly confusing legal marketplace, many with a lifetime of challenges hanging in the balance.
3. Finding the right lawyer is critical for the catastrophically injured
Why would the public compare quality of legal services when they believe that any real estate lawyer can routinely transfer title when they buy a house? It therefore makes sense to focus only on comparing the prices or fees given the main result or quality is routinely about the same in every case.
The above belief appears to make reasonable public sense in simple residential real estate transactions, but it is seriously mistaken when applied to personal injury law, and especially to serious and catastrophic injury cases. In injury law, there is no inevitable routine result for a serious or catastrophic case as the range of results obtained by one lawyer to another can be quite wide, even in the order of many multiples and more. A settlement for $300,000 by one lawyer can vary frequently and significantly, lower or higher in the hands of another.
We believe that there is little to no dispute that having the right lawyers is the most important factor for achieving the most money in the pockets of injured persons, and the highest satisfaction for them as a result of fewer errors and omissions. Not only we believe that this is self-evident, it is amply supported by reported incidents in the caselaw, as well as personal experiences of many rational and candid litigators.
For Tiffany and Marcoccia, whose cases are further discussed later in our submission, there is likely no dispute. The right lawyers routinely improve on the work of mediocre lawyers in the reported caselaw, but we are not aware of any reported incident the other way around. These two cases are also fine examples of how the right lawyers cost the victims less than the mediocre lawyers, a topic we discuss next.
4. The right lawyer costs less than the mediocre lawyer
We believe seriously injured persons will find that the right lawyers generally charge the same or even lower percentage rates than mediocre lawyers.
It appears to us that the right lawyers frequently charge lower percentage rates because they service more serious cases which have higher fee margins but want to remain competitive with lower rates. The mediocre ones generally use higher percentage rates because they tend to serve smaller cases with lower fee margins but use the same default higher rates when a seriously injured person happens to come to them. Our beliefs are consistent with the percentages we observed in practice and as revealed in reported applications for court approval of legal fees charged to persons under incapacity, and in reported assessments of solicitor-client accounts.
The full costs of legal representation are, however, not measured by the percentage rates or the amounts of fees charged. It is generally best measured by the amount of money remaining in the pockets of injured persons. As discussed earlier, the right lawyers generally secure significantly higher settlements and verdicts than the mediocre ones. After deducting the same percentage rates, the right lawyers generally cost less because more money ultimately finds its way to the pockets of injured persons. The cases of Tiffany and Marcoccia (Marcoccia v. Ford Credit Canada Limited, 2007 CanLII 51528) are clear examples of the right lawyers putting a great deal more money in the victims’ pockets than mediocre lawyers, as further details of their cases are expanded below.
5. How to find the right lawyer objectively
As discussed earlier, the right lawyer for a seriously or catastrophically injured person is a lawyer with the highest levels of experience and professionalism. To be helpful to the public, indicators of the highest levels of experience and professionalism to be compared should be objective, and readily verifiable.
There are two such important objective and verifiable indicators.
(a) Certified Specialist designation by the Law Society
The first is obvious, the specialist certification by the Law Society. For certification, the Law Society has examined a lawyer’s levels of experience for their leading involvement in the field, and highest levels of professionalism via the records of client complaints and malpractice claims against them, among other things.
(b) Amount of the highest contested verdict achieved
The second objective indicator is less obvious but is even more important than specialist certification for catastrophically injured victims. It requires an informed understanding of the personal injury litigation practice and landscape to appreciate that it is not a boastful exercise but a service to the public as an important objective indicator for comparing quality of legal services. It is the record of winning contested verdicts, best exemplified by the amount of the highest contested verdict achieved by a lawyer.
This indicator is particularly relevant to catastrophically injured persons because their claims are the most complex and challenging of all claims to be conducted before triers of fact. Victims ought to compare actual trial experiences by comparing the winning results obtained. The significantly higher the amounts of winning contested verdicts, generally the significantly higher degrees of complexity successfully undertaken by the lawyer.
In Tiffany’s case, the insurer set the final offer at $450,000 and her lawyer folded. He apparently had no prior winning contested injury verdicts. A subsequent lawyer took her case to a contested verdict, winning her critical claim for 24/7 supervisory care. This subsequent lawyer had won multiple contested verdicts before taking on Tiffany’s case. In Marcoccia, the insurer set the final offer at $2 million and yet it was rejected. The jury returned a verdict in excess of $10 million. Marcoccia’s lawyer had won multiple contested verdicts before trying his case.
In Ontario, actions settle in more than 99% of the time, and a plaintiff injury lawyer will have taken less than two cases on average in a career or lifetime to verdicts, where cases include substantive arbitrations at the Financial Services Commission of Ontario. A large majority of injury lawyers will not have contested one substantive hearing to a verdict in their lifetime. How can they be ready, willing and able to competently conduct a catastrophic case to verdict where necessary to protect the best interests of the client if they have no prior hearing experience? Simply put, it is next to impossible in this field. For the protection of the catastrophically injured, they ought to compare winning contested verdicts as part of an informed comparison of the quality of legal services.
A winning contested verdict is also not a label that is susceptible to being bought or sold for a fee and marketed to uninformed victims. A lawyer must pay about $4,000 each year to be listed as “Best Lawyers”, for example, but a winning contested verdict can only be forged through resolute and skillful dedication to the client’s best interests over the lawyer’s interests to settle in order to protect sure fees and sure recovery of large, out of pocket disbursements. All contested verdicts, including jury verdicts, carry public citations and are demonstrably verifiable by way of public orders and judgments issued. They are objective and usefully comparable as an important indicator of experience and professionalism for the consumer.
Settlement amounts on the other hand carry little value in objectively estimating experience and professionalism. The same lawyer who conceded at $450,000 for Tiffany may easily obtain a $2.5 million settlement for a young quadriplegic victim (where damages are easily and significantly more than $8 million). Similarly, for amounts of winning verdicts in uncontested, default, or summary proceedings, or where a lawyer was not lead counsel.
6. Competitive confusion in the marketplace
Ordinarily, the consumer has relatively little contact with the personal injury field. However, when they unfortunately need representation, the marketplace for the seriously and catastrophically injured is confusing and treacherous, especially since they rarely ever had any experience in dealing with it before.
Across all advertising platforms, the task of comparing quality of legal services by a seriously injured person is made difficult by the indiscriminate claims by an overwhelming number of firms and lawyers of the highest levels of expertise and monetary results regardless of how recent their calls to the bar may be, or their non-existent record of winning contested verdicts. In their competitive confusion, little regard is given to comply with the rule against claiming “expertise” or being “specialized” unless the lawyer is a certified specialist. Little regard is also given to the rule requiring a disclaimer where alleged past results are marketed.
Many firms and lawyers further seek a competitive edge through the use of a confusing multitude of labels from third-party such as Top Lawyers, Super Lawyers, Great Lawyers, #1, Best Lawyers, Lawyer of the Year, of the City, of the Decade, top 500, top 100, Multi-Million Dollar Lawyer etc. … (Amy Salyzyn, President of the Canadian Association for Legal Ethics, notes that clients "have a hard time self-evaluating the potential quality of legal services before hiring a lawyer". She reports a longer, but still incomplete list of ranking labels from private companies which increases confusion for the public: Future Star, Rising Star, Litigation Star, Highly Recommended, Most Frequently Recommended, Consistently Recommended, Repeatedly Recommended, Recommended, Recognized Practitioner, Recognized Lawyer, Senior Statesperson, Lawyer of the Year, One to Watch, Up and Coming, One of Leading 500 Lawyers in Canada, One of Top 50 Trial Lawyers in Canada, One of Top 50 Women in Litigation, Band 1, Band 2 ... Her article may be found here: https://www.slaw.ca/2020/09/23/supercalifragilisticexpialidocious-lawyers/.)
While competitive confusion may be a creative sport for many, the confusion materially impairs the ability of a seriously injured victim to compare quality of legal services. The confusion therefore victimizes those most in need of the most competent representation.
7. Final Words
Access to justice in injury law has its own unique and serious challenges. In family law justice, a serious problem is the ability to pay for legal services. In injury justice, seriously injured persons have the ability to pay from their misfortune but face serious challenges in finding the right lawyers. Particularly for the catastrophically injured, the legal marketplace is treacherous when they search for able representation with lifelong consequences at stake.
One of the greatest regrets a catastrophically injured victim may have is not finding competent representation. Tiffany was nearly one of those with irreversible regrets. By a stroke of luck, her remaining “flashes of reason” struck at the right time. At the conclusion of a pre-trial conference, she rejected her lawyer’s recommendation to accept the final offer of $450,000 from the defendants. She consulted another lawyer who helped to adjourn the trial, but not without a stern rebuke and legal costs ordered against her by the pre-trial officer, one day before the scheduled trial.
Her case was re-worked. Based on the same injuries and impairments, and after 10 tortuous years of avoidable suffering including increased suicidal and other grave dangers while living alone without supervisory care, an arbitrator ordered that she be entitled to 24/7 attendant care benefits and further determined that she had suffered unfairly without full supervision for the past 10 years. Weeks before her new tort trial was to begin, the defendants agreed to fund the permanent 24/7 supervisory care that she deserves.
In her final words before the arbitrator, she expresses hope for others in the future, that no one else should have to go through what she went through after a serious accident. As we now strive to guide the vulnerable in their darkness, may their hopes be our guide, and the prevention of life sentences by legal representation our light.
We trust that the general information set out below will provide you with some useful tools that you can use to find the best lawyers for your case and obtain the highest compensation. We hope that the information will be self-explanatory such that you will not need to contact our office.
While you may be contacting us, please be cautioned that there can be important deadlines for mandatory notices and limitation periods under the law that may bar your claims regardless of whether you are legally represented or not. In some cases, mandatory notices to potential defendants or reports to the police might be required within as little as 24 hours (for example, some auto accidents involving unidentified motorists), or 7 days following the accidents (for example, some auto accidents involving poor road maintenance), with possibly some limited exceptions to extend such timelines. The information above and on our website is only general information and may not be applicable to your factual situation, and should not be relied on without first consulting and retaining a qualified lawyer for specific legal advice that may be applicable to your specific situation.
General Information on Finding the Best Lawyers and Comparing Legal Fees
The right lawyer for a catastrophically injured person should be highly experienced, committed and professional. For catastrophic cases, hiring the right lawyer is the most important step.
When a lawyer or a judge unfortunately needs an injury lawyer, who are they going to call? Surely they will check out for the right lawyer, and they will not go to a lawyer or law firm just because they have the biggest advertisements. We would like you to have a good chance of finding on your own the right lawyer for your case. We believe the right lawyer will likely get you more money in your pocket, treat you more fairly with the highest levels of decency and respect. They likely make fewer mistakes in your case that may cause you more delay and suffering. Importantly too, they may even charge you lower percentage fees. Because the right lawyer will also likely get you a higher settlement because of their high experience and dedication, they may end up giving you significantly more money in your pocket for your care and losses. They may ultimately cost you far less in some serious or catastrophic cases.
The best lawyer or the right lawyer for a particular case can be any lawyer, young or old, who is willing to spend a lot of time to do a lot research, read a lot of cases, go to meet and ask a lot of questions from the experienced, leading lawyers, spend a lot of time reviewing and learning about the very complex laws and procedures, the endless medicine, the complex facts and learn how all of these will intertwine and be argued and accepted in a contested hearing or trial.
In practical terms, from our experience inside the field of personal injury, the chance of finding a young lawyer with less than 5 years of experience who has all of the qualities required to represent a catastrophic case well is around 1%. In other words, that lawyer is very hard to find or nearly non-existent. The chance to find a young lawyer with less than 10 years of experience who will expertly protect a catastrophically injured victim is around 5%. In other words, it is rare, as 95% of the time, it is not the right lawyer. Even for senior lawyers with 20, 30, or 40 years of practice, the chance of finding the right and expert lawyer by a catastrophically injured victim is still rare, at probably less than 10%. It means 90% of the time, you may still not get the right lawyer.
What about a lawyer who is referred by a good friend or a loving family member? That is a convenient start, but it is only a start. There is no reason not to review the quality of that lawyer by using our guidance below. Friends and family may have had a good experience in dealing with the lawyer on a real estate matter, or a business matter, or a much less serious injury claim. However, dealing with catastrophic injury cases is like dealing in a foreign language that none of the friends and family can understand and judge the lawyer before referring to you.
As an example, in one of the reported cases, a caring family had hired a large and reputable law firm to deal with some business matter, and later referred a family member to the injury lawyers in the law firm when the family member was catastrophically injured. The injured person made a remarkable recovery given the initial severe brain injuries. After five years, the injury lawyers pushed to settle the case for $400,000 shortly before trial. Despite the trial was to start in less than a week, a new lawyer was able to obtain a postponement of the impending trial and re-worked the case. After several years, the new lawyer won a verdict for more than 10 times the amount the family lawyers would have settled for. Our point to you to remember here is this: our guidance below is simple to do but it offers very important protection for you. We do not fault the family. They had more trauma than anyone can imagine on their plates. The law is complex and dependable legal representation can be elusive. If the family had the benefit of our simple guidance, with the opportunity and headspace to consider it, we trust that they would have a better chance of realizing that the injury lawyers they referred their family member to had little proven expertise and commitment. They were not certified specialists and have not won any significant injury verdicts. Therefore, they seemed lacking in both experience and commitment.
Following is the simplest guidance we can offer which provides the best chances for you to find the right injury lawyers. Our guidance is objective as it relies mainly on two criteria that are verifiable.
1. Is the lawyer certified by the Law Society of Ontario as a specialist in civil litigation? (20% - 25%)
Certification as a Specialist by the Law Society is the highest professional certification in Canada for lawyers practicing in Ontario, and is the only official recognition of expertise in Ontario. This is also the only official certification where the records of complaints and legal malpractice by former clients against the lawyer, along with any extensive and leading expertise, and professionalism of the lawyer are examined by the Law Society before certification is awarded. According to the Law Society, Certified Specialists are recognized leaders in their fields. Less than 1% of Ontario lawyers are Certified Specialists in civil litigation.
To check for yourself if a lawyer is certified as a specialist in civil litigation by the Law Society, visit the Law Society of Ontario at www.lso.ca. Or, for ease of access, click on this link below and it should lead you to the list of certified specialists in civil litigation for your own review and consideration:
https://www1.lso.ca/specialist/#/specarea-list/cvl
This list of specialists includes specialist lawyers who practice many areas of civil litigation, not just personal injury on behalf of injured persons. As of June 2021, the list shows 269 specialists in civil litigation while we estimate that there are about 40,000 lawyers who are registered with the Law Society. The specialists are listed in alphabetical order, firstly by the cities where their main practices are located, and secondly by their names. Out of the 269 specialists, many of them are "defence" lawyers, defending lawsuits brought by injured persons. Defence lawyers typically are hired by insurance companies although some of them occasionally represent injured persons. Whereas "plaintiff" lawyers are those who mostly represent injured persons. There are currently about 100 specialist lawyers on the list who appear to be plaintiff lawyers.
From this list of specialists, unfortunately, you may need to click on their names to see if they have a website that you can visit. Or you can google them for their firm websites. Then visit their websites to view and consider their biographies, compare their record of winning verdicts etc...
By selecting a certified specialist in civil litigation who is a plaintiff personal injury lawyer, you probably have secured a 20% to 25% chance that your lawyer is the right lawyer for your case. A much higher chance than just any random personal injury lawyer even with 20 or 40 years of experience.
2. Does the lawyer have a record of winning a large verdict? (40% - 45%)
We observe that the legal marketplace is very confusing for the catastrophically injured. To reduce confusion, our explanation below on the difference between a settlement and a winning verdict should help.
A settlement amount is not a good indicator to predict experience and commitment
It should be noted that a settlement is not a winning verdict because it is not a verdict in the first place. A verdict is an Order actually issued by a court or a tribunal following an actual trial or hearing, whereas a settlement is an agreement between the parties to resolve the dispute, and to walk away without further contesting for larger amounts by the injured person.
A lawyer with 8 years of practicing law can settle a catastrophic brain injury to a 20 year old victim, who needs extensive future care for the rest of his or her life, for an amount of $2 million. That may sound like a lot, and a good result to a lot of people. However, a more experienced and committed lawyer may not accept that amount. The same case may result in a large winning verdict of more than $8 million. A good settlement to an experienced and committed lawyer can be $4 million or more, not $2 million.
No one knows whether the $2 million settlement is adequate, good, or terrible because no one is allowed to look at the personal medical information of the injured person, other than the injured person's lawyer. Privacy laws are very strong, and same for the protection of lawyer-client confidentiality.
Without reviewing the personal information, the medical needs, and other details of the injured person, generally no one else can or should have confidence in concluding that the settlement was a good result for the victim. What if at the time of the accident, the 20 year old victim had straight A+ grades in his or her first two years in a top university program that would strongly support more than $3 million in projected future income loss alone, before even considering medical treatment and attendant care needs which can exceed another $8 million, for a total of more than $11 million? Our point is that any confidence in the levels of experience and commitment of the lawyer who settles for $2 million cannot be objectively supported because no one else can review the full private and confidential information of the injured person. A large settlement amount may sound impressive and look attractive, but is of little assistance to a seriously injured person in their search for their best lawyers. There is a possible exception where a settlement may indicate an excellent result achieved through high experience and commitment - that is when a settlement is at least about $8 million, which is about 50% of the highest verdicts possible (about $15 to $20 million) under the law.
In any event, in our observation, a lawyer generally does not need high experience and commitment to settle, and to walk away from fighting for a higher amount. But a lawyer does need very high experience and commitment to battle on, to contest and win a large verdict. In our guidance, we believe that it is important to focus on a large winning verdict as an objective demonstration of experience and commitment of the lawyer, not settlement.
A large winning verdict is the best indicator of commitment and experience
A record of winning a large verdict carries the highest chance of all factors. It should add an extra 40% to 45% to your chances of having found the right lawyer. Just as a specialist surgeon should not be seen as an experienced and leading surgeon if he or she has not gained judgment and experience through successfully completing complex operations. In personal injury law, the most complex operation in our experience is the successful conduct of a complex and difficult hearing which is vigorously fought by an expert lawyer hired by an insurance company, leading to a large winning verdict for a catastrophically injured victim.
Learning how to do surgery is one thing. Actually applying the knowledge through an assessment of the patient's unique and complex medical characteristics in real time, on the operating table, leading to a successful result is the ultimate validation of the highest skills and judgment that may be sought in a surgeon.
In catastrophic injury law, the most valuable skill and judgment of a lawyer is his or her assessment of whether or not the best offer to settle by the insurance company is much lower than a likely potential verdict, under all of the circumstances of the case. The insurance company will set "the bet" by making its best offer, for example two million dollars in a catastrophic brain-injury or paralysis case, and in its expertise, has decided that the victim will not be able to beat that offer. The company has done thousands of cases and has extensive experience.
The victim's lawyer has to draw upon his or her best ability to assess the strengths and weaknesses in the case. What is the best experience to allow the lawyer to do this assessment? How does the lawyer know or have confidence that he or she likely has a significantly stronger case and higher likely verdict than the insurer's best offer?
There is no short cut to gain this experience, the experience of evaluating whether one has a winning case - a much higher verdict than the insurer's best offer - or not. This is the ultimate experience in injury law and it is not easily gained. It requires many attributes, one of which is a deep care for the well-being of the victim's lifetime. It is this care for justice that drives a lawyer to contest many offers that she believes as being genuinely unfair for her client. It is this care for justice for her client that enables a lawyer to reject a two million dollar offer, and her own large and immediate legal fees, in order to reject the offer, fight on and ultimately win a larger multi-million dollar verdict. She could have lost it and the payment for all of her legal fees too, but in her best professional dedication and expert assessment, justice for her client requires her to put the client's interests first, and not settle.
We wish to briefly digress here to pay our professional respect to one special lawyer, Ms. Nancy Ralph. Our narrative in the previous paragraph portrays her professionalism and dedication to her clients. In a span of just a few months in about 2006, she won not one but two record verdicts in personal injury law in Ontario. An unprecedented accomplishment that has not been and likely will not be repeated. Importantly, she was also generous with sharing her professional knowledge, readily and freely on her website. She has since retired, having exemplified the best aspirations of a professional.
In our experience, no lawyer can win a contested multi-million dollar verdict without the highest levels of expertise, of courage, and of dedication to the catastrophically injured victim who is helpless and who relies on the lawyer as the last line of defence for a reasonable level of lifetime care and compensation. There are no windfalls in catastrophic injury cases. A large verdict occurs because the victim reasonably needs it for care, all based on clear medical needs. But a large contested verdict is never won without highest degrees of expertise, courage and dedication on the part of the consummate legal professional.
A lawyer who wins a large verdict, in a complex case that is contested by an insurance company, does the legal profession proud. A lawyer should appreciate such a question from the injured and proudly provide a copy of such a contested verdict. Regardless, you have the right to ask the lawyer for a copy of the contested verdict (there is a difference between a contested and an uncontested verdict: an uncontested verdict is a verdict where there was no opposing lawyer and the verdict was therefore uncontested).
3. Does the lawyer charge a fee that reflects risks, complexities, time, expertise and results?
While the first two steps above can be objectively determined, with regard to the third step, the precise contingency fee percentage that is reasonable cannot be readily or summarily determined, especially at the early stages where a contingency fee agreement is entered into. Below is some general information we can offer from our experience for your consideration on evaluating fee percentages.
1. For those who are very seriously, fatally, or catastrophically injured in a car accident while not at fault for causing the accident, a contingency fee of 15% or less is in the low range; 16% to 25% in the middle range; and 26% or more in the high range.
2. For those who become wheel-chair dependent and who are not at fault in the accident, a fee of 10% or less is in the low range; 11% to 20% in the middle range; and 21% or more in the high range.
3. For those who are not at fault, and whose injuries are not serious and are invisible (such as soft tissue injuries causing some chronic pain), a fee of 25% or less is in the low range; 26% to 40% in the middle range; and 41% or more in the high range.
4. For those cases where the question of who is at fault is not at all clear, there will be increased risks of damages being reduced proportionately to reflect the degree of fault, or liability, on the injured person. If these risks are significant, additional 5% to 10% of fees may be added to the above fee ranges for categories 1 and 2. As to the category 3 above, if the injured person is at fault for the accident, it may become hard to even find a lawyer to represent them.
5. For those involved in medical malpractice cases against doctors or hospitals, the liability issues are typically much more complex, regardless of the degree of suffering or damages. The typical fee in medical malpractice cases is about 40%. Variations in the nature of the liability issues, and the extent of damages, would suggest that a fee range in medical malpractice cases is from 33% to 50%. It is estimated that more than 90% of the medical malpractice complainants cannot find a lawyer who would agree to represent them even if they are willing to pay a higher contingency fee such as 75% or more (there is no express maximum cap under the law on the amount of contingency fee, other than the legal restriction that the total fee cannot be more than the total settlement amount exclusive of disbursements and taxes).
6. For those involved in slips and falls, and long term disability claims other than being related to car accident claims, the fee percentages are more similar under category 3 above, with small adjustments of up to about 5% lower or higher depending on the seriousness of the injuries and impairments, and of the clarity of the liability issue.
7. For those cases that are uncommon and are not captured in the above categories, the contingency fee amounts may be higher as a result of higher risks and higher levels of complexities, time, and expertise involved. The first six categories above should capture a large majority of injury cases, but there are exceptions.
8. For all of the above cases from categories 1 to 7, it should be noted that the percentage rates usually include work up to and including the first level of hearing (a trial or a substantive hearing at the Licence Appeal Tribunal), but usually do not include any further appeal to the Divisional Court, the Court of Appeal of Ontario, the Supreme Court of Canada, and any further hearings as a result of these appeals. Comparison of fee rates should consider these extra levels of work and experience involved.
Expertise and Commitment Are the Two Most Important Factors - Not Fee Percentages Alone
(A) Expertise
1. It is worth repeating and emphasizing that it is very important when comparing the amount of fees between lawyers to remember that the percentages do not matter as much as the expertise of the lawyers and their record of professional commitment to do the best for their clients.
2. As further illustrated and argued below in our writing to the Law Society of Ontario, a mediocre lawyer who charges a 30% fee, but has only 30% of the experience required, and obtains a settlement of $500,000 is far worse for the injured person than compared to a lawyer who is a Certified Specialist with the Law Society of Ontario and who, for the sake of illustration, charges a higher fee of 40% (although in practice, their rates are typically the same or lower than those of mediocre lawyers), but puts in 100% of the specialized experience required, and obtains a settlement of $1,500,000. The mediocre lawyer therefore charges about $150,000 while the Specialist lawyer charges about $600,000. But more importantly, the mediocre lawyer gets about $350,000 to the client while the Specialist lawyer gets more than $800,000 to the client - a difference of more than $450,000 for the client - more than double what the mediocre lawyer achieves.
3. Therefore, while a comparison of fee percentages is important, the comparison should not be between apples and oranges, or between mediocre lawyers and lawyers with proven expertise and winning verdicts. The reminder here is to focus on finding lawyers who are objectively-verified as having specialist experience, with a proven record of courageous and skillful representation leading to large winning verdicts.
(B) Commitment
1. Even when the comparison of fees is between lawyers with expertise and large winning verdicts, it is important to remember that ultimately the fee percentages are still less important than the honest commitment of the proven lawyers to put in the hours, days and weeks of intense work as may be required at times for the best results to their clients, despite their busy schedules and their past successes.
2. In complex or catastrophic injury cases, high experience must be combined with high commitment to obtain the best results for the client. But how do we evaluate commitment? It is difficult, but it is not impossible, as further discussed below and elsewhere on our website.
3. It is worth re-emphasizing and a further illustration of commitment with an example. In a catastrophic brain injury case, a lawyer with more than 20 years of practice obtained a final offer from an insurance company for $600,000. Twenty years of practicing law can be considered to be a lot of years and therefore good experience by the general public. But this lawyer did not have much expertise and was not experienced specifically in claims involving catastrophic brain injury. This lawyer pushed the client to accept $600,000. The client changed representatives and retained a second lawyer.
4. The second lawyer had relevant expertise and was able to obtain a final offer for $2 million to settle, which was a very good result. If this lawyer wanted to settle, this lawyer could have easily convinced the client to settle for $2 million, and the lawyer would have secured a fee payment of about $600,000, finally getting paid after several years of working on the claims. The client already had a bad experience with the first lawyer. The client could see the big difference in the quality of work and experience of the second lawyer, and would have accepted any recommendation from the second lawyer to settle. What would this second lawyer do at this important point - to settle or to fight on?
5. What the second lawyer should do at this point depends mainly on his or her professional ethics, specifically the honest commitment of the lawyer to the client's best interests. The lawyer must be fully equipped, not only with expertise, but more importantly with commitment to do what is best for the client, and not what is desired by the lawyer which for most lawyers would be to get a quick and very large payday of about $600,000. Should the lawyer risk everything, reject the offer, and proceed to a long, difficult and expensive hearing to hopefully win an amount that is more fair and reasonable to the client, one that will pay for a much higher quality of life than a $2 million offer could do for the badly injured client?
6. It is the commitment to the client, and not the desire to immediately get a very large fee, that will be the test for this second lawyer. Guided firmly by professional ethics, the lawyer took the expertly-calculated risks in the client's best interests, recommended rejection of the final offer of $2 million and fought on. The lawyer went through a long hearing, won a large verdict, and the client's best interests were protected by the lawyer's commitment. The client's future quality of life was much improved with more than $8 million in compensation achieved, as a result of the lawyer's commanding professional ethics and expertise.
7. How can you find a lawyer experienced and committed like this second lawyer?
8. The good news is that there is a relatively easy and objective way to try to find such a lawyer by yourself: you look for the record of winning verdicts of a lawyer. When any lawyer wins any verdict, large or small, in 100% of the cases, there is a paper trail which documents the verdict. For every verdict, there is an Order or Judgment formally made and dated by a court or a tribunal, 100% of the time. If a lawyer has won a large verdict, they should be proud to give you a copy of the actual Order or Judgment granted by a tribunal or a court for your confidence and ease of reference. Such an Order or Judgment will state the exact amount to be paid, and describe whether or not the verdict was contested by any opposing party or insurance company.
9. If the second lawyer had folded, and accepted the final offer of $2 million, there would not be any contested hearing, and there would not be any winning verdict. So for a lawyer who has practiced law for 40 years but had never contested in an actual hearing, therefore settled in 100% of their cases, there would be no record of a winning verdict. Such a lawyer had never done what the second lawyer had done.
10. The point here is that if you look for a lawyer like the second lawyer above, then look for a lawyer with a record of winning a large verdict. A verdict is different from a settlement. A verdict only occurs where there is no settlement reached, following a rejection of the final offer to settle. A lawyer like the second lawyer above is a skillful, committed professional, and commands our highest respect.
11. A track record of winning large contested verdicts is important in reflecting high commitment by a lawyer, but that is still the past and it cannot predict the future. What can you do to promote and ensure future commitment? As to their future commitment, injured persons and their families should interact promptly and courteously with their lawyers in order to become better informed, to support and unite with their lawyers, becoming a formidable team for a committed pursuit of success. Each team member supports and facilitates the others to prepare their best for winning: with the injured persons and their families becoming informed, reasonable and credible witnesses, and the lawyers becoming intimately versed with even the smallest but fundamental facts and evidence from the lives of their clients. Easy, effortless, frictionless co-operation in turn helps to create the environment for future success. In such a team environment, legal work to pursue injury justice is not only a privilege, it is a pleasure.
12. And finally, back to the comparison of fee percentages between experienced lawyers. As noted earlier, a committed lawyer such as the second lawyer above can deliver a superior result (more than $8 million) when compared to an experienced lawyer who would have accepted the $2 million settlement for the same client. Therefore, the client of the lawyer who charges 30% or $600,000 in fee for a settlement of $2 million, actually receives only about $1.4 million. Whereas the client of the lawyer who wins $8 million, even if the lawyer charges 50% or $4 million, actually still receives a much higher amount of about $3.5 million after taxes. The point is that the fee percentages should not be the most important factor. Therefore, to conclude, the most important factors ranked from high to low in our view are (1) commitment - typically shown by a large winning verdict; (2) expertise - typically shown by specialist certification or a large winning verdict; and (3) fee percentages.
From our observations in over 25 years of experience, we estimate that experienced and committed injury lawyers achieve better results when compared to average injury lawyers as follows:
(a) At least 25% larger settlements on average for catastrophic injury cases;
(b) 50% larger settlements in at least 20% (2 out of 10) of catastrophic cases;
(c) 100% larger, or twice as large, settlements in at least 10% (1 out of 10) of catastrophic cases;
(d) 1,000% larger, or 10 times as large, settlements in at least 1% (1 out of 100) of catastrophic cases; and
(e) There are many known serious and catastrophic cases where they were nearly thrown out of court, or were settled for less than $100,000, or $50,000, or for even $10,000. Fortunately, a few of them were able to subsequently find more experienced and committed lawyers, and were lucky enough to overcome their disastrous history, to ultimately achieve much more than $1,000,000. But unfortunately, for the vast majority of the injured victims in these cases, they just would never know that they were further victimized. Justice failed them, silently.
Effective on July 1, 2021, the Law Society of Ontario requires a consumer guide to contingency fee to be provided to every client who enters into a contingency fee agreement. The guide represents a significant enhancement in the protection of the public involving contingency fee agreements. Given that its focus is about contingency fee across many areas of law, it does not appear to contain much guidance relating to the challenges of finding the right lawyers for the seriously or catastrophically injured. That guide may be found by clicking here: "Contingency Fees: What you need to know - A guide from the Law Society of Ontario".
General Information to Understand How Wrongful Life Sentences in Injury Cases Might Occur:
Below is an article adapted from our writing to the Law Society of Ontario to highlight the dangers of wrongful injury settlements in catastrophic injury cases. The effects of such dangers on catastrophic injury victims share many similarities with those who are wrongfully convicted of the most serious crimes. In criminal law and employment law, "wrongful convictions" and "wrongful dismissals" are well-known concepts and experiences. We want to direct greater attention to "wrongful settlements" in personal injury law to improve the well-being and quality of life of those most gravely or catastrophically injured. We urge the Law Society of Ontario, the governing body of all lawyers and licensed paralegals, to consider providing better information to educate the injured public regarding the universally "free" certified-specialist legal care, and regarding how to objectively compare to find the best legal care for catastrophic injury victims.
"PREVENTING LIFE SENTENCES BY LEGAL REPRESENTATION"
Tiffany: 20 years old college student – multiple skull fractures in car accident with catastrophic brain injury – not at fault – permanent facial disfigurement – requires permanent 24/7 supervision and lifelong pain management - aggressive behaviour – suicidal risks - abuses alcohol to control pain - criminal charges for assaulting police and others – permanently disabled from working – Settlement avoided: $450,000 (or approximately $9,000 a year for life)
Donald Marshall, Jr.: 17 years old at time of stabbing death of acquaintance Sandy Seale in 1971 in Sydney, Nova Scotia – wrongly convicted of murder and sentenced to life imprisonment – spent nearly 11 years in prison - released in 1982 and acquitted in 1983 – an inquiry and a royal commission determined legal representation was a material cause of wrongful conviction among many others causes
1. Silent Life Sentences
Wrongful injury settlements may impact lives and families no less than wrongful convictions and incarcerations. In a catastrophic case, a wrongful settlement may practically impose a life sentence of avoidable physical and mental suffering and excessive safety risks as a result of grossly inadequate compensation for care and support.
Victims of wrongful convictions in the criminal justice system know they did not commit the crimes and can further pursue their rights and justice, as Donald Marshall Jr., David Milgaard, Steven Truscott among others did. These men were able to vacate their life sentences by their own voices, amplified by the media and reverberated by inquiries and royal commissions.
Same cannot be said for victims of life sentences in the injury justice system who suffer in near complete silence, rarely ever knowing that they had been victimized. No inquiries, no royal commissions, and no apparent traction anywhere in Canada. They are overlooked, misunderstood, voiceless and defenseless when their legal representatives or the civil justice system failed them. Their catastrophic plight deserves attention and strong proactive prevention.
2. Seriously injured Ontarians have “free and universal” specialist legal care
When Ontarians face serious injuries, they largely do not know that there is such a thing as certified specialist legal care, and that the specialized care is as “free” as any ordinary legal care.
Specialist certification in the legal profession is a relatively recent development as compared to that in the medical profession where knowledge of its existence is practically universal among Ontario families. Public knowledge of specialist certification in the legal profession appears to be limited, thereby impairing their access to specialized legal care when they need it the most.
Furthermore, there is a pervasive public impression that all lawyers are expensive and charge for every minute of time spent, including first consultations. Additional public sophistication is required to know that in injury cases, the practice of offering free initial consultations and no upfront fees among injury lawyers is “universal” (as there is practically no personal injury lawyer who charges fees upfront for services or first consultation). A very large segment of the public does not know that they can afford specialized legal care. The significant extent of this ignorance is reflected by the prominence of advertising slogans such as “No Win No Fee”, “Don’t Pay Until You Win”, “Free Consultation” and the like. Such slogans are perceived to be so attractive to the uninformed public such that many leading injury firms have also adopted some similar variations in their marketing.
Being uninformed, seriously injured persons may be impressed that any lawyer who does not charge for initial consultations or upfront fees represents a “good deal” to be had, or a kind, compassionate hence good lawyer to be retained, without further comparison for true quality. For thousands of Ontarians each year who face serious injuries, they are still left to their own misinformation in navigating an increasingly confusing legal marketplace, many with a lifetime of challenges hanging in the balance.
3. Finding the right lawyer is critical for the catastrophically injured
Why would the public compare quality of legal services when they believe that any real estate lawyer can routinely transfer title when they buy a house? It therefore makes sense to focus only on comparing the prices or fees given the main result or quality is routinely about the same in every case.
The above belief appears to make reasonable public sense in simple residential real estate transactions, but it is seriously mistaken when applied to personal injury law, and especially to serious and catastrophic injury cases. In injury law, there is no inevitable routine result for a serious or catastrophic case as the range of results obtained by one lawyer to another can be quite wide, even in the order of many multiples and more. A settlement for $300,000 by one lawyer can vary frequently and significantly, lower or higher in the hands of another.
We believe that there is little to no dispute that having the right lawyers is the most important factor for achieving the most money in the pockets of injured persons, and the highest satisfaction for them as a result of fewer errors and omissions. Not only we believe that this is self-evident, it is amply supported by reported incidents in the caselaw, as well as personal experiences of many rational and candid litigators.
For Tiffany and Marcoccia, whose cases are further discussed later in our submission, there is likely no dispute. The right lawyers routinely improve on the work of mediocre lawyers in the reported caselaw, but we are not aware of any reported incident the other way around. These two cases are also fine examples of how the right lawyers cost the victims less than the mediocre lawyers, a topic we discuss next.
4. The right lawyer costs less than the mediocre lawyer
We believe seriously injured persons will find that the right lawyers generally charge the same or even lower percentage rates than mediocre lawyers.
It appears to us that the right lawyers frequently charge lower percentage rates because they service more serious cases which have higher fee margins but want to remain competitive with lower rates. The mediocre ones generally use higher percentage rates because they tend to serve smaller cases with lower fee margins but use the same default higher rates when a seriously injured person happens to come to them. Our beliefs are consistent with the percentages we observed in practice and as revealed in reported applications for court approval of legal fees charged to persons under incapacity, and in reported assessments of solicitor-client accounts.
The full costs of legal representation are, however, not measured by the percentage rates or the amounts of fees charged. It is generally best measured by the amount of money remaining in the pockets of injured persons. As discussed earlier, the right lawyers generally secure significantly higher settlements and verdicts than the mediocre ones. After deducting the same percentage rates, the right lawyers generally cost less because more money ultimately finds its way to the pockets of injured persons. The cases of Tiffany and Marcoccia (Marcoccia v. Ford Credit Canada Limited, 2007 CanLII 51528) are clear examples of the right lawyers putting a great deal more money in the victims’ pockets than mediocre lawyers, as further details of their cases are expanded below.
5. How to find the right lawyer objectively
As discussed earlier, the right lawyer for a seriously or catastrophically injured person is a lawyer with the highest levels of experience and professionalism. To be helpful to the public, indicators of the highest levels of experience and professionalism to be compared should be objective, and readily verifiable.
There are two such important objective and verifiable indicators.
(a) Certified Specialist designation by the Law Society
The first is obvious, the specialist certification by the Law Society. For certification, the Law Society has examined a lawyer’s levels of experience for their leading involvement in the field, and highest levels of professionalism via the records of client complaints and malpractice claims against them, among other things.
(b) Amount of the highest contested verdict achieved
The second objective indicator is less obvious but is even more important than specialist certification for catastrophically injured victims. It requires an informed understanding of the personal injury litigation practice and landscape to appreciate that it is not a boastful exercise but a service to the public as an important objective indicator for comparing quality of legal services. It is the record of winning contested verdicts, best exemplified by the amount of the highest contested verdict achieved by a lawyer.
This indicator is particularly relevant to catastrophically injured persons because their claims are the most complex and challenging of all claims to be conducted before triers of fact. Victims ought to compare actual trial experiences by comparing the winning results obtained. The significantly higher the amounts of winning contested verdicts, generally the significantly higher degrees of complexity successfully undertaken by the lawyer.
In Tiffany’s case, the insurer set the final offer at $450,000 and her lawyer folded. He apparently had no prior winning contested injury verdicts. A subsequent lawyer took her case to a contested verdict, winning her critical claim for 24/7 supervisory care. This subsequent lawyer had won multiple contested verdicts before taking on Tiffany’s case. In Marcoccia, the insurer set the final offer at $2 million and yet it was rejected. The jury returned a verdict in excess of $10 million. Marcoccia’s lawyer had won multiple contested verdicts before trying his case.
In Ontario, actions settle in more than 99% of the time, and a plaintiff injury lawyer will have taken less than two cases on average in a career or lifetime to verdicts, where cases include substantive arbitrations at the Financial Services Commission of Ontario. A large majority of injury lawyers will not have contested one substantive hearing to a verdict in their lifetime. How can they be ready, willing and able to competently conduct a catastrophic case to verdict where necessary to protect the best interests of the client if they have no prior hearing experience? Simply put, it is next to impossible in this field. For the protection of the catastrophically injured, they ought to compare winning contested verdicts as part of an informed comparison of the quality of legal services.
A winning contested verdict is also not a label that is susceptible to being bought or sold for a fee and marketed to uninformed victims. A lawyer must pay about $4,000 each year to be listed as “Best Lawyers”, for example, but a winning contested verdict can only be forged through resolute and skillful dedication to the client’s best interests over the lawyer’s interests to settle in order to protect sure fees and sure recovery of large, out of pocket disbursements. All contested verdicts, including jury verdicts, carry public citations and are demonstrably verifiable by way of public orders and judgments issued. They are objective and usefully comparable as an important indicator of experience and professionalism for the consumer.
Settlement amounts on the other hand carry little value in objectively estimating experience and professionalism. The same lawyer who conceded at $450,000 for Tiffany may easily obtain a $2.5 million settlement for a young quadriplegic victim (where damages are easily and significantly more than $8 million). Similarly, for amounts of winning verdicts in uncontested, default, or summary proceedings, or where a lawyer was not lead counsel.
6. Competitive confusion in the marketplace
Ordinarily, the consumer has relatively little contact with the personal injury field. However, when they unfortunately need representation, the marketplace for the seriously and catastrophically injured is confusing and treacherous, especially since they rarely ever had any experience in dealing with it before.
Across all advertising platforms, the task of comparing quality of legal services by a seriously injured person is made difficult by the indiscriminate claims by an overwhelming number of firms and lawyers of the highest levels of expertise and monetary results regardless of how recent their calls to the bar may be, or their non-existent record of winning contested verdicts. In their competitive confusion, little regard is given to comply with the rule against claiming “expertise” or being “specialized” unless the lawyer is a certified specialist. Little regard is also given to the rule requiring a disclaimer where alleged past results are marketed.
Many firms and lawyers further seek a competitive edge through the use of a confusing multitude of labels from third-party such as Top Lawyers, Super Lawyers, Great Lawyers, #1, Best Lawyers, Lawyer of the Year, of the City, of the Decade, top 500, top 100, Multi-Million Dollar Lawyer etc. … (Amy Salyzyn, President of the Canadian Association for Legal Ethics, notes that clients "have a hard time self-evaluating the potential quality of legal services before hiring a lawyer". She reports a longer, but still incomplete list of ranking labels from private companies which increases confusion for the public: Future Star, Rising Star, Litigation Star, Highly Recommended, Most Frequently Recommended, Consistently Recommended, Repeatedly Recommended, Recommended, Recognized Practitioner, Recognized Lawyer, Senior Statesperson, Lawyer of the Year, One to Watch, Up and Coming, One of Leading 500 Lawyers in Canada, One of Top 50 Trial Lawyers in Canada, One of Top 50 Women in Litigation, Band 1, Band 2 ... Her article may be found here: https://www.slaw.ca/2020/09/23/supercalifragilisticexpialidocious-lawyers/.)
While competitive confusion may be a creative sport for many, the confusion materially impairs the ability of a seriously injured victim to compare quality of legal services. The confusion therefore victimizes those most in need of the most competent representation.
7. Final Words
Access to justice in injury law has its own unique and serious challenges. In family law justice, a serious problem is the ability to pay for legal services. In injury justice, seriously injured persons have the ability to pay from their misfortune but face serious challenges in finding the right lawyers. Particularly for the catastrophically injured, the legal marketplace is treacherous when they search for able representation with lifelong consequences at stake.
One of the greatest regrets a catastrophically injured victim may have is not finding competent representation. Tiffany was nearly one of those with irreversible regrets. By a stroke of luck, her remaining “flashes of reason” struck at the right time. At the conclusion of a pre-trial conference, she rejected her lawyer’s recommendation to accept the final offer of $450,000 from the defendants. She consulted another lawyer who helped to adjourn the trial, but not without a stern rebuke and legal costs ordered against her by the pre-trial officer, one day before the scheduled trial.
Her case was re-worked. Based on the same injuries and impairments, and after 10 tortuous years of avoidable suffering including increased suicidal and other grave dangers while living alone without supervisory care, an arbitrator ordered that she be entitled to 24/7 attendant care benefits and further determined that she had suffered unfairly without full supervision for the past 10 years. Weeks before her new tort trial was to begin, the defendants agreed to fund the permanent 24/7 supervisory care that she deserves.
In her final words before the arbitrator, she expresses hope for others in the future, that no one else should have to go through what she went through after a serious accident. As we now strive to guide the vulnerable in their darkness, may their hopes be our guide, and the prevention of life sentences by legal representation our light.