What is a Pre-Trial and Why Do I Need One?

If you have a personal injury lawsuit in the Greater Toronto Area, you will have a pre-trial before your case goes to trial before a judge or a judge and jury.

The purpose of a pretrial is to settle the case through negotiation or to narrow the issues in the case. In a personal injury case, the main issues between the parties are typically: who was responsible for the collision (liability) and what are injuries worth (damages).

Who attends a personal injury pre-trial?

The lawyers for the plaintiff (the injured person) and the plaintiff attend the pre-trial. The lawyer for the defence, usually hired by the insurance company, as well as a representative of the defence, usually a claims examiner or adjuster, will also attend.  Witnesses do not normally attend.

At what point does a pre-trial happen during a personal injury case?

The parties in the litigation (lawsuit) are required to complete all examinations for discovery, produce all the required documents and complete any related motions before they are allowed to have a pre-trial.

How will my lawyer prepare for a pre-trial?

Your lawyer will prepare a pretrial brief which will include a detailed outline of the evidence you will be leading at trial to support your case. This pretrial brief will include important sections from the transcripts from the examination for discovery, important medical records and expert reports. The brief will also identify the witnesses you intend to call at trial and what you expect them to say. Your lawyer will also review the brief received from the defendant.

Do I need to prepare for my personal injury pre-trial?

You will likely meet with your lawyer (either in person or on the phone) before the pre-trial to discuss your settlement position, strategy and any important issues in the case that arise from the defence lawyer’s pretrial brief.

Who presides over a personal injury a pre-trial?

A judge or another court official called a master presides over a discussion of the issues.  That official will review the strengths and weaknesses of each party’s case.

What happens during the pre-trial?

Pre-trials can vary quite a bit from judge to judge. Sometimes all the parties, lawyers and the judge will meet in a courtroom. The lawyers will make submissions and the judge will comment and then give an evaluation of the case.

In other cases, the judge will meet privately with the lawyers and go through the case and then come back into the courtroom to speak to the parties about his or her views.

Sometimes the judge does all the talking.

A pretrial may last one hour or it may last several, particularly if the parties are actively progressing to settlement.

What happens after the pre-trial is over?

If a settlement is reached, the case will not proceed beyond the pretrial, apart from the closing paperwork and the deliver of the settlement cheque.

If a settlement is not reached, the judge will discuss the length of the trial with the lawyers and a trial date will be confirmed.

The parties may be disappointed if the case does not settle.  However, having a clear trial date may motivate the parties to continue to negotiate toward settlement.

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