Can I afford to hire a lawyer in a birth trauma case?

The prospect of paying for a lawsuit can be overwhelming or daunting. Generally there are two main arrangements for paying your lawyer and related legal fees.

With a Contingency Fee Arrangement (CFA)

In many birth injury cases, a contingency fee arrangement (CFA) is appropriate.  This means that you will not pay your lawyer for his or her time as the matter progresses, but rather, your lawyer will receive a percentage of the recovery if the matter is successfully resolved either through settlement or after trial.

Without a Contingency Fee Agreement

If your BILA lawyer determines that a contingency fee agreement is not appropriate for your case, here are the costs you should be aware of.

A. Costs of the Preliminary Investigation

Before proceeding with a claim, your BILA lawyer will conduct a very detailed preliminary investigation. To do so, your lawyer will obtain all of the relevant medical records, including records from hospitals, doctor’s offices, midwives etc.  Your lawyer will then review these medical records and send them to one or more medical experts for review and comment on the issues of standard of care and causation. The opinions from these experts will determine if the case will proceed beyond the investigation stage. Only by conducting this preliminary investigation can your BILA lawyer properly advise you on the merits of proceeding with a claim.

The preliminary investigation can result in considerable expense. In some cases, your BILA lawyer may request a monetary deposit to conduct this investigation. The size of the deposit will depend on the complexity of the issues, the volume of medical records, the number of experts that must be retained, and other anticipated expenses associated with investigating the case.

In other instances, your lawyer may agree to accept a smaller deposit than would otherwise be necessary to investigate the case. Further, there are some cases where your lawyer may agree to dispense with a financial deposit altogether. These decisions are made on a case-by- case basis.

B. Legal Fees Payable at the Conclusion of the Case

If the preliminary investigation demonstrates that a claim should be advanced, your BILA lawyer will proceed to file and serve a Statement of Claim on your behalf which will start the lawsuit. Thereafter, your lawyer will move the case forward by exchanging documents and productions with opposing counsel and conducting all of the necessary steps to advance the claim.

The vast majority of birth injury cases handled by BILA lawyers that proceed beyond the preliminary investigation will be settled out of court without the need for a trial. In some cases, however, a trial will be necessary. Whether the case is concluded by a settlement or trial verdict, your lawyer will collect his or her legal fees at the conclusion of the case.

BILA lawyers handle birth injury claims differently than many lawyers in Canada. In particular, BILA lawyers strive for early, efficient and optimal resolution of birth injury claims, wherever possible. We achieve this by building the medical and economic evidence in your case at the earliest opportunity with the help of top quality experts. If a trial is necessary, BILA lawyers have the skill, experience and reputation to ensure your claim has the very best chance of succeeding. The fees charged by BILA lawyers are designed to be fair and reasonable, based on our expertise, the results we obtain, and the sophisticated hands-on approach we take to each and every case.

Although every province has different rules for how legal fees are awarded, a plaintiff who is successful in a lawsuit will ordinarily recover from the defendants an amount for damages as well as some contribution towards legal fees. This is true whether there is an out of court settlement or a trial verdict. The contributions to your legal fees made by the defendants are called partial indemnity costs. Partial indemnity costs are intended to cover part, but not all of the legal fees you will have to pay to your lawyer. You will still be responsible for paying the balance of the legal fees.

The portion of legal fees you pay to your lawyer at the conclusion of the case is referred to as solicitor-and- client fees. The solicitor-and- client fees are taken from the settlement funds or the trial award, depending on how the case was resolved. Solicitor-and- client fees usually represent a pre-arranged percentage of the total damages amount.

In some cases, the other side will have to pay a higher percentage of your legal fees. The legal fees paid by the other side at this higher scale are referred to as substantial indemnity costs, and are usually only awarded if the case goes to trial. Where this occurs, the amount of the solicitor-and- client fees you will have to pay will be lower.

In cases involving children or individuals who lack capacity to instruct counsel or understand the process of litigation, a Litigation Guardian will be appointed to act on the their behalf. In most cases, the Litigation Guardian will be a parent or close family member. The Litigation Guardian is required to act in the best interests of  the child or person under a disability. Any proposed settlement in these cases will require the oversight and approval of a judge in the province where the action was commenced.

In addition to overseeing and approving the amount of the settlement, the court will review and scrutinize the solicitor-and- client fees which are to be paid by the minor plaintiff or party under a disability. In this way, the court will ensure that both the settlement and the legal fees are fair and in the best interests of the child or party under a disability. Your BILA lawyer will navigate you through this process and will prepare all of the necessary materials for court approval of any proposed settlement.

There can be cost consequences to losing a case at trial. BILA lawyers work tirelessly to ensure you receive a favourable result. If the case proceeds to trial and the Judge prefers to the defence expert evidence to the plaintiff’s expert evidence, your case may be dismissed. Should that occur, the court may order you to pay partial indemnity costs to the opposing side. Your BILA lawyer will work closely with you to ensure that does not happen. Our past experience, while not necessarily predictive of future outcomes, has demonstrated that this outcome is extremely rare for BILA lawyers.


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