Timing is very important in the settlement of an ICBC claim for a reasonable amount. If someone fully recovers from their injuries and is assured by their medical specialist(s) that they will not have more than very minor future problems, then this is a good time to try to settle your claim with ICBC.
Understanding how you will feel, in the future, is a significant part of a settlement negotiation. It is important to remember, that if you are settling for a smaller amount the legal fees are distributed differently than a larger sum. For smaller settlements, it likely is not cost effective to hire a lawyer. For a detailed description of settlement amounts and legal fee distributions, see this blog post – What are the economics of hiring a lawyer .
For a more serious claim with long-term or permanent consequences negotiations don’t usually take place until a few months prior to the claimant’s trial date when:
- the claimant’s future is much clearer,
- a specialist physician is willing and able to make a strong long term prognosis (prediction) for legal purposes about the claimant’s injury and
- the claimant has the most bargaining clout with ICBC.
The financial upside of hiring a lawyer is much greater for injured people who do not fully recover from their injuries.
Most lawyers find that ICBC rarely comes up with a decent offer until close to a claimant’s trial date. It is usually only then when the pressure is very much on ICBC as long as ICBC’s adjuster, manager and lawyer then think that:
- both the lawyer and client are ready and willing to proceed to trial (this is not always the case) rather than to accept an inadequate offer from ICBC,
- the lawyer has at least one very strong opinion from a medical specialist on the claimant’s ongoing injuries, limitations and future possible and probable problems.
- the claimant will present well at trial and
- the lawyer and claimant will likely do well at trial because they have a strong case.
Most medical specialists are not willing to provide an opinion on a person’s long term future until at the very least two years after an accident after the injured person has exhausted all appropriate forms of treatment.
Unfortunately, it takes about 3 years from when you hire a lawyer until the date of the trial that your lawyer secures on your behalf in the Supreme Court of British Columbia. However, 3 years it is not an unreasonable period to have to wait for one’s trial date considering that:
- medical experts are usually unwilling to give a final prognosis for at least two to two and a half years after an accident and
- lawyers have to give 3 months’ written notice to ICBC’s lawyer of the reports their experts give them,
It is usually in the best interest of a significantly injured adult to sue within about 6 months or less after their accident. This is because people want to have their claim behind them as soon as reasonably possible.
If, for example, a claimant with ongoing problems waits until one year and 10 months after his or her accident to hire a lawyer, then ICBC will know that if it then makes a relatively “lowball” offer there is a good chance that the claimant:
- will not be willing to wait yet another 3 years (almost 5 years after the accident) in order to obtain higher compensation close to his or her trial date and
- will therefore likely cave in & accept ICBC’s offer of much less than so-called “court dollars”.
That is why we often suggest that:
- in very serious claims, claimants hire a lawyer soon after the accident and
- in less serious claims, claimants consider whether to hire a lawyer about 3 to 5 months after the accident and
- claimants obtain an assurance from a lawyer before hiring that lawyer that he or she will:
- sue (commence a legal action) soon after being hired and
- make every effort to push for a trial date as early as possible so that their claim will be resolved by way of either a fair settlement or a trial no later than about 3 to 3.5 years after their injury.
Some lawyers are quite lax about suing soon after being hired. This is generally due to the substantial labour cost of suing and setting an early trial date.
Most serious injury lawyers, with a good track record of successful settlements and trials, instruct their staff to sue and set a trial date as soon as possible due to the:
- substantial delays in our legal system due to the number of people who want a trial date,
- need for a pending trial date for lawyers to create bargaining clout for their injured clients and
- need for injured people to have their litigation and dealings with ICBC behind them so that they can fully get on with their lives without the unpleasant feeling that ICBC is looking over their shoulders.
Also see our blog entitled: