CLIENT INTERVIEWS AND PRE-PLEADING MATTERS
personal injury action,
In
a
or
serving
the
the steps that you take
the Statement of Defence
relationship
attaches
set of
a
or
negative,
steps
the Statement of Claim
can
determine whether
and whether you
secure
a
good
litigation.
result for your client in the
suggests how
issuing
to
vital. These initial
positive
with your client is
This paper
are
prior
to
precedents
principal steps
that arise
that may assist you in your
practice.
approach
the
prior
pleadings,
to
and
Before the Initial Interview
Where
possible,
you should conduct
potential opposing parties (if
if there is
responsible lawyer
Consider
informing
consulted
by
firm
the
Many
conflict
a
conflict check
you know their
arrive for the initial interview.
databases.
a
or
offices
firm does
a
before the
have
now
potential clients
and the
potential clients
computerized conflict
potential conflict you should inform
the
of this.
the other
legal professionals
potential clients.
in your office that you have been
You may want to
clients have consulted you without first
This
the
identities)
accept consultations regarding the collision
working.
on
speaking
or
request that
no one
incident about which the
with the
lawyer
plaintiff
and defence work.
potential
with whom you
request may be particularly important in avoiding
mixture of both
else in the
a
are
conflict if your
Consider
meeting briefly
going
call before
that there
or
potential
the
on
lawyer
and the person who took the initial intake
to the initial interview. You may find out the
extremely distraught,
report"
with the
clients
are
can
cultural
go
a
linguistic barriers.
or
long
potential clients
way toward
a
A
are
"scouting
successful initial
interview.
Contact the
potential
relevant documents in their
sophistication
Assemble
chronology
or
firms
individuals find
a
individuals with
or
applicable
the
package
on
the
bring
a
it to the interview.
authorizations, retainer form, and any other
summary information sheets
Benefits Schedule
Depending
all
you may want to ask the client to prepare
typically provide
provide injured
to the interview.
of events and
the initial directions,
documents that you
developed
possession
potential clients,
of the
written summary
bring
clients before the initial interview and ask them to
a
to
potential
clients.
Some firms have
regarding personal injury
applicable Statutory
copy of the
sections of the Insurance Act.
of this information to be
claims.
a
Other
Accident
Many injured
useful reference.
Initial Interview
The initial
meeting
plaintiff's firm,
is
an
extremely important part
the initial intewiew is the first real
the claim is worth
taking
on, whether the
of
personal injury practice. For the
opportunity
potential
to determina whether
clients will be easy to deal
with,
they
and whether
are
consulting
with
to information
access
becoming
yourselves
to "sell"
through
injury litigation
meeting.
Most of the
questions
an
important opportunity
potential clients. With increased
They
services and law firms.
apply
considerations
are
about the firm's
of the
experience
for the
personal
in
legal professionals they
initial contact with
appointed
pressure to maintain
Everyone
has
a
simply
approach
a
defendant.
already
proceed
potential clients,
interested in their
number if
they
points.
with the insurer.
You
to
can
then follow up with
immediately
you risk
story"
clients "tell their
giving
personal experience
run
through
them the
and that
they
a
greetings,
to
fit and
see
questions
and take
investigate
the
checklist of information
impression
will
they
as
require
the standard information that you
matter further, if you
with the
insurer, but there is the additional
to the initial interview. After the initial
potential
let the
take notes of the relevant
through
an
positive ongoing relationship
different
a
you may want to
the clients
by
to act for the defendant
are
accurately.
There may be less pressure to "sell" your firm to the defendant if you have
been
also
past, and you should expect that
reasonable and should be answered
are
clients
legal advertising, potential plaintiffs
than in the
specific experience
questions
same
legal
about
legal professionals
and the
These
to the
the internet and
may be very direct in their
potential
witnesses. In addition, where the
sophisticated
more
less deferential to
they
good
number of firms, the initial interview is
a
lawyer
for you and the
are
will make
simply
that you
are
be treated
not
as a
hire your firm.
As you listen to the information from the
potential clients,
consider whether there
might
be
representing
conflict in
a
all of them in
determine this until you hear their information.
injured
driver and
example,
as
a
a
defendant
even
though
the
name
injured
to
potential
proceed
claim
with
against
claim
a
against
with the
stop the interview
(if
him
driver
primarily
immediately
concern
that the driver may want to contact his
separate counsel
her
or
own
already done)
not
the drunk driver
as a
injuries.
result of his
important
From the outset of the initial interview, it is
expectations.
that he
If you
or
If you
are
meeting
with
an
injured individual,
claim, particularly if damages
are
that you and the
meeting
with
lawyer attending
seriousness of the
potential
a
potential
potential
to manage
likely
she understands that there will not
resolution to the
personal
passenger to
drunk driver, for
a
the initial interview and it may be necessary to
injured driver, explain
question.
by
struck
injured
are an
the drunk driver appears to have been
insurance company to report the
sure
potential clients
was
for the collision. You should raise this
lawyer attending
and retain
injured
action. You may not be able to
If the
vehicle that
it may be necessary for the
responsible
of the
passenger of
an
you will want to make
be
quick
a
significant
is in
defendant you will have to make
sure
and
implications, including
financial exposure if claims exceed
and easy
liability
are
the interview make the defendant
claim and the
clients'
policy
limits and the
aware
of the
possibility
of
requirement
to
the
cooperate with the insurer in the defence of the action.
It is also
impo•ant
th• outset.
to establish
Many injured
appropriate
boundaries with the
potential c!ient from
individuals feel vulnerable and isolated. You
can
certainly
support and encourage
professional
distance. The
possible.
Not
only
individual but you must also maintain
person has
legal
suggests this could
you
are
to go
sure
with
something
be
someone
beyond asking
If you hear
signage
defendants other than the
make
the
particular
lawyer
is
Once there is
the
they
to
initial
an
exchange of
are
the
a
"standard"
Assuming
to be
periods
the initial interview
negligence
want to retain you.
If
they
retainer form
signed
and limitation
at that time.
of
activities
to
name
principal lawyer,
periods
they
Your
acting,
the
they do,
inquiries
are
not
so
apply.
clients and
potential
to
potential
it may be
may
potential
should inform the
whether
or
to
confirm whether
particulars
suggest that you will need
retained, whether they need
agreeable
are
claim. If
injured person's
information between the
being retained,
you
and
collision, for example, be
and the
legal professionals
prepared
to
operator of the at-fault vehicle, you should
and
that short notice
aware
matter further before
retained.
during
clients
note of this in the information you convey to the
legal professionals,
whether
owner
anything
together
objectivity
affect your
can
reason
surrogate family.
or
about the other driver and obtain full
weather conditions, road conditions,
before the collision.
her life back
or
motor vehicle
a
main
one
a
support you provide.
potential
in
his
but it
other than
injured
to you for
social worker
a
advice and
Be sensitive to any information from the
that
put
needed to
emotionally draining,
the value of the
meeting
come
It is not your function to be
will this become
consequently
injured
compensation
to obtain the financial
the extent
injured
the
clients
investigate
prepared
the
to be
clients must also
appropriate
to have
may indicate that additional
plaintiffs
should be added to the claim
beyond
potential
the
clients with whom you
appropriate
have met. if so, you should follow up with those individuals and obtain
confirmation that
It is
important
they
litigation
would like to be added to any
to make the clients and everyone in your
scope of the retainer.
Most
seriously injured
that
practice
clients have
ensues.
group
a
of the
aware
personal,
host of
financial, medical and legal issues arising from their injuries. You may intend to
act
issues, for example, and
not
only
a
in
CPP
respect of the client's accident benefits and
disability application
that your firm is
important
that there be
as
no
the
case
application.
misunderstanding
review
client, however, may
The
arising
all of his needs
principal lawyer's
letter for the
retainer,
protecting
and LTD
tort
from his
injuries
assume
and it is very
about this. You may want to draft
confirming
the scope of the retainer
a
or non-
may be.
You should inform your clients about the members of the "team" from your firm who
will be
handling
the file. You should inform them that
member of the team and that
they
give
should
they
may be contacted
any team member full
Unless you have this conversation with your clients at the outset,
confused when
they
hear from
have abandoned them
Assuming
or
someone
example
unworthy
a
plaintiff's
cooperation.
they
may be
of your attention.
that the clients retain your firm, you may want to
of
any
else at your office, and may feel that you
deemed their file
the standard checklist of information
by
on
a
proceed
client intewiew sheet
Bill 59 interview sheet is
appended
with
or
compiling
form.
An
to this paper. Th.•re may
be
some
repetition
first, but it is
such
in
useful exercise. It
a
spellings
as name
imposes discipline
the information
Err
on
going through
the side of
sometimes correct
can
physicians'
need to
quantity
to make
the claim
move
when you obtain
individual has
signed
delay
for these records without
Various
Try
to
examples
give
of directions and
the clients
want to consider
preparation
lawsuit. This letter
personal injury actions,
In
One of their most
a
claim.
By providing
the
expectations
and
help
or
they
"standard" letter
you should still obtain
files
so
that you
parties frequently
litigation.
in the
outlining
have
is about the
can
do
your client understand
length
great
why
a
write
change.
Your firm may
the various
knowledge
no
outlining
a
status
can
attached to this paper.
to clients at the initial interview
time line, you
have obtained
employment
are
expect
clear letter at the outset
a
anticipated
or
a
frequent complaints
arise and the
his
of
provided
be
can
example,
request letters
idea of what to
some
checklist also
a
Even if you do not think the
injuries
if the client's
that
details
authorizations and directions for
employment
authorizations for release of tax returns and
important
in
story
defence forward.
or
income loss claim, for
an
errors
sure
release of medical records and other information.
injured
heard the client's
Completing
addresses.
legal professionals
the
on
they
and
having
the checklist after
or
stages of
shortly
of civil
a
after.
litigation.
of time it takes to resolve
some
of the
steps that
will
deal to manage your client's
quick
resolution is often not in
her best interests.
You may want to conside•
ending
the initial interview
by providing
some
standard
"warnings"
requests. It may be helpful to put these in the form of
and
written list that the clients
clients
plaintiffs,
are
You should
activity
they
only people
know that the
unduly
do not become
importance
your clients about the
obtaining photographs
activity
of the
regarding
of
compiling
injuries
statements,
may be
even
potential
if the
people
whose stated
level. You should also inform
and of
the incident that caused their
producible
are
about it and let them
careful lists of expenses
injuries regularly,
Most clients will not realize that any statement
their
example,
nervous
who should fear surveillance
level is much lower than their actual
any statement
For
or
you should inform them of surveillance and how to deal with it.
that
ensure
take home with them.
can
letter
a
they
incurred, of
contacting
you before
signing
injuries
about their
injuries.
make
or
regarding
the incident and
in the tort action and that inconsistencies among
though inadvertent,
their recollection of the incident
or
can
their
be used
by opposing
counsel to attack
lawyer
who attended the
credibility.
Investigation
Following
the initial interview with your
interview should prepare
members of your
not
seem
important
acting
if you
are
memo
promptly
are
issues such
attention.
legal
for
a
memo
team. The
regarding
memo
or
the
the interview and copy it to the
should be detailed. Often facts which may
at the initial interview may prove to be
plaintiffs,
the
principal lawyer
and you should
speak
impending
notice
as
clients, you
to the
or
important
should be
in the
provided
litigation.
with your
principal lawyer immediately
limitation
if there
periods that require prompt
Many legal professionals
requesting
documents
such items
as
helpful
find it
shortly
to send off
obtaining
confident in its
Depending
parties
Nonetheless,
or a
a
must
One of the most
on
witnesses and to contact them.
and it is therefore
advantages
discrepancies
are
prudent
being
to
or
be
affinity
preferred.
in
as
they
a
a
toward the
witness
subsequently gives
legal
of
or
debris
on
the
police
on
media
or
photos of items
are
photographs.
such
as a
traffic
repaired.
identify independent
is to
witness' recollection fades with time
the first firm to contact
In addition,
that it is
It may be critical to
skid marks
early investigation
Generally,
to contact
diligent
photographs
to obtain
as soon
an
as
possible.
independent
between the information the witness
information the witness
likely
rely mainly
the road before
important stages
and
consulted, the site of the incident has been
are
law firm may still be able to obtain
large pothole
prompt
impression
imperative.
attention to this issue is
the time most law firms
cleaned up and the
other
appropriate
the issues involved, it may be
injury. Early
firm that is
the matter forward to trial if necessary.
contemporaneous photographs of such items
highway. By
sign
move
of initial letters
you write for these
sooner
medical records conveys the
and is eager to
case
on
the site of the
have
producing
and
plaintiff's
"battery"
These will include letters for
reports. The
medical records and accident
records the sooneryou will receive them. A
in
meeting.
after the initial
a
to another
gives
There
witness.
are
If there
to you and the
firm, the earlier version will
independent witnesses often develop
firm that first contacts them. When
they
an
allegiance
receive
a
caii
from
they
second firm
a
often find it vexatious and
are
cooperative
less
with the
second firm.
it is
a
matter of discretion
from the
potential
confirming
his
or
witness. You
a
a
confirming
You
so.
can
potential
letter
or
a
diligence
witnesses who may be
given
witness but this may be less
likely
unhelpful
You may not want to
to your
case.
case
law may
The
witnesses.
interviewing
how to go about
opposing
require
you to
produce
opposing
firm to
firm may not have the
principal lawyer
parties
lawyers touching
in the
on
how to go about
interviewing
litigation.
are
her interest to
a
potential
witness.
There
interaction with
interviewing witness£s. Among other things,
or
potential
so.
Professional Conduct for
disclose his
potential
principal lawyer
witnesses who may become
persons and
intimidating
letter to the
You may want to leave it up to the
You should also discuss with the
potential
confirming
find this
record of the witness' recollection. This
that the Rules and
unhelpful potential
to do
a
statement
a
the discussion.
summary of their evidence.
contact
also send
sign
witness know at the start of the discussion that you will send
following
interview them at all,
witness to
Many witnesses, however,
intimidate the
You will have to discuss with the
potential
potential
ask the
helpful contemporaneous
letter may also alienate
if you let the
can
her recollection.
and will refuse to do
witness. This is
to how to confirm the information you have obtained
as
In
a
unrepresented
lawyer
addition, where
Rules of
is
a
obliged
to
corporation
or
organization
other
has retained
employees
or
agents
corporation
to
liability.
potential liability
caused
a
corporation
of the
professionals acting
motor vehicle
whose acts
must not contact
omissions may expose the
or
legal
investigating
the
lawyer's
a
if your firm is
instruction,
serving
tavern for
a
lawyer
another
These restrictions should also govern the activities of
on
of
lawyer,
a
alcohol to
patron who subsequently
a
collision, for example, you should
of the tavern if your firm knows
has substantial
or
reason
not contact the bartender
to believe that the tavern
has retained counsel.
On defence
files, you will also likely receive
that may include such items
with counsel for the
the
package
injured
adjusters'
as
person. As
have been considered in your initial
and
notes and
from the defendant's insurer
reports and correspondence
report
and that the documents in the
to the insurer
ensure
package
regarding liability, damages
litigation budget.
a
Pre-Pleading
The
package
part of your investigation, you should
complete
from the insurer is
a
Notices
plaintiff's
firm and defendant's firm have similar
investigation
discussed above. From the
goals
of the
investigation
this is
straightforward
Report
and licence
liability
cases,
the
and
plate
search
appropriate
completed
be
are
investigation
obtained.
may
when
plaintiff's perspective,
is to determine the
can
goals
one
conducting
of the additional
Motor Vehicle Accident
In other cases, such
require
Sometimes,
defendants.
as soon as a
the
title searches
as
and
occupiers'
review
of
maintenance contracts
Once the
or
potential defendants
pre-pleading
the issue of
Transportation
One of the most
notice
and
as
identified, the plaintiff's firm
have been
regarding
required by
statutes such
requirements
notice
("Bill 59").
pre-judgment
impression
the
claim.
Municipal
personal injury
in
The earlier you
are
to collisions
occurring
serious about the claim. There
are
delivery
that you meet with the client
the incident and that you ask the
Bill 59 notice
package
From the defence
received
a
obligations
be
right questions
completed
perspective,
notice letter
on
can
regarding
the defence firm to
it is
a
in
important
potential
respond
specified periods after
soon
so
after
that the
fashion.
to determine when the defendant
claim. There are, for
to the
the. defendsnt has received the notice letter.
within
at the initial interview
timely
a
the motor
addition, getting the notice out early
provided
important
on or
able to send this notice letter
is also additional material that is to be
of the notice letter, it is
Act and the
claims is the 120
begin running against
interest does not
that you and your firm
as
must consider
Act.
applies
it
as
vehicle defendants until the notice is served. In
conveys the
impending
the
Highway Improvement
in the Insurance Act
after November 1, 1996
the better,
are
common
requirement
contracts.
notice letters
Sometimes, notice letters
Public
cleaning
plaintiff's
example,
Bill 59 notice letter
some
once
Even if there is
the
notice
no
principal lawyer
claim
prior
to
obligation
whether to
in
particular
a
case, you will want to review with
put the opposing parties
on
notice of
a
potential
litigation.
Summary
In summary, the
steps
Statement of Claim
client
relationships
or
that you take
serving
on
behalf of your client
the Statement of Defence
and successful results in
are
prior
Anna-Marie Castrodale
Neil P. Wheeler
Judy K. Weston, Law Clerk
Lerner & Associates LLP
issuing
the
vital to successful
personal injury litigation
June 3, 2002
to