Five Problems with Personal Injury Litigation (and What to Do About It!)
(2013) 40 Advocates Quarterly 492
27 Pages Posted: 5 Mar 2013
Date Written: January 2, 2013
The personal injury litigation system itself is dynamic and highly interdependent. It is an intertwined system of tort law, insurance law and procedural law. If you pull one corner, another unravels somewhere else. For this reason, proposals for reform need to be thought of in holistic fashion. Can the challenges faced by personal injury lawyers and their clients be addressed so that the legal system itself better balances the needs of injured accident victims with the interests of defendants and insurers? This paper explores five problematic aspects of personal injury litigation: 1) the complementarity of tort and insurance; 2) the procedural plug in the personal injury litigation system; 3) the bureaucratic systematization of automobile accident claims; 4) the medicalization of personal injury litigation; and, 5) the troubling absence of regularized jury usage.
It does so from a systemic and practical level in the hope of advancing some constructive change by prompting thoughts about aspects of personal injury litigation that perhaps are too often taken for granted as status quo. While the paper primarily uses Ontario’s experience with personal injury litigation as an example, aspects of the same problems appear throughout all Canadian provinces. This paper also aims to offer some simple suggestions to what, at first glance, may appear to be insurmountable systemic problems. The fact remains that none of these problems is insurmountable because they are all human-made constructs. What can be built can be revised or dismantled. The key is in envisioning how any reforms will actually work in the real world of automobile injury litigation which involves real lawyers, real clients, and real hurt.
Keywords: personal injury, insurance, civil procedure, tort, litigation
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