The phrase “court hearing” usually brings to mind scenes from serial courtroom dramas: gruesome murder cases heard in large chambers, or a robe-clad judge banging their gavel and shouting, “order!”
But the reality is—particularly in civil law—the vast majority of cases never reach trial. The most recent statistics, according to the Star indicate that around 95 per cent of pending lawsuits end in a pre-trial settlement, meaning just one in 20 personal injury cases is resolved in a court of law by a judge or jury.
While overlooked, pre-trial proceedings are an essential part of civil lawsuits and the best opportunity all parties have to settle a case. If an agreement between the plaintiff and defendant can’t be reached at this stage and the case goes to trial, all bets are off: the defendant could lose everything, or the plaintiff could leave with nothing.
For Justice Todd L. Archibald, this makes creating a pre-trial environment where all parties feel comfortable crucial.
“I purposely develop a rapport with lawyers and I’ve been doing that for 19 years,” he says. “That’s the approach I have to settling cases – if I have a rapport with the lawyers, I’m halfway to settling the case.”
To Justice Archibald, reaching an agreement in pre-trial is far better than a case being resolved in court.
“When the parties settle, both sides have agreed to something, [and] it’s fantastic,” he says, “and don’t forget, they’re the ones that started the case, they’re the ones defending the case, and they’re the ones that own the case. If they can settle, they’ve come to a collaborative resolution.”
If pre-trial negotiations fail and a case goes to court, the parties involved get all the expenditures and anxieties with it. A three-day civil trial is likely to cost at least $60,000, which is more than what most Canadian families make in a year. Particularly for people who have already experienced traumas of loss or injury, Justice Archibald says, the financial and emotional strains of trial are something to be avoided.
“There’s nothing worse than trial,” he says. “Trials are anxious, there are huge costs and huge stress, and there’s a lot of risk, because you never know how it’s going to turn out.” In some cases, plaintiffs with strong cases who have suffered life-changing injuries can potentially be “shut out” by the jury – meaning they leave with nothing. Fortunately, pre-trials are “extremely effective,” according Archibald.
“Everyone is well-prepared [and] becomes very engaged in the process, and we spend a lot of time with the clients working through the issues in an effort to find common ground.”
Pre-trials are overwhelmingly successful and have become the custom across Ontario as the gold standard of resolving civil cases.
Archibald says that “money can never compensate for a lost limb, but that’s what we’re left with. If you take the heat out of the room and evaporate the anguish, the job’s half done.”
Feature photo: New Mexico Courts
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