The hesitance that many survivors of abuse have around the legal system is not surprising. The process, whether criminal or civil, can seem intimidating, confusing and lengthy. The prospect of reliving the trauma again and again has many survivors reluctant to come forward. Concerns about revictimization, whether they will be believed, in addition to fears about the financial cost are all paramount.
As in many things, knowledge is power. In this short blog, I will break down the civil litigation process in a way that is easy to understand. Part of my role as a plaintiff lawyer representing survivors in cases against their perpetrators is to empower them with information about the system, the process, and what to expect, while at the same time providing the confidence that they are not doing this on their own.
Choosing a Plaintiff Lawyer for Cases of Abuse
Litigation is, by its very definition, adversarial. There are two sides that do not see eye to eye. It is important to have a trusted lawyer who will be on the front lines and walk with the survivor through the process. The process can take a number of years, so the lawyer/client relationship is critical.
It is important to understand that a civil lawsuit is a separate process from the criminal system. It is one that focuses on the survivor’s right to seek both compensation for the damage suffered as well as accountability and closure. My firm works on a contingency fee basis, meaning that we are not paid until the end of a case, and only if successful. This alleviates much of the financial worry that many clients have.
How the Civil Litigation Process Works
When Renée Vinett and I first meet a survivor, we ensure that we listen to their story in an environment and at a pace that is comfortable for them. We try to ask for details only once. We review the facts and evidence and provide guidance on whether a viable claim exists. It is important, right from the first meeting, that we make our role clear: we are here to provide support and communicate clearly with the survivor outlining the strengths and weaknesses of a possible case so that they can make the decision that is right for them in choosing whether to advance a lawsuit.
If we are aligned with the survivor that a lawsuit is the right path forward for them, we proceed to issue a Statement of Claim with the Court. In this lawsuit, we claim compensation for the pain and suffering, therapy costs, lost income and other related costs that the survivor (Plaintiff) has endured. Unlike the criminal context, the Plaintiff needs to prove on a balance of probabilities (meaning that it is more likely than not) that the harm occurred as a result of the act(s) of the Defendant(s).
Once the Statement of Claim is personally served on the Defendant(s), the Defendant(s) defend the action by filing a Statement of Defence with the Courts. Then, the discovery process begins. During this phase, documents and information are exchanged between the parties. After preparing our client, we sit with them through the oral examination for discovery process, where they give evidence under oath to the defending lawyer(s) about the events giving rise to the claim, and the impact of the harm on their lives. While this is not an easy part of the process, it is a necessary step for both parties to understand the evidence and evaluate the relative strengths of their respective sides. We do our best in preparation to ensure that this process is approached in a trauma-informed way, sensitive to the unique needs of each of our clients.
What to Expect at Mediation and Trial
The next step is mediation. This is a time when the parties come together to see if the case can be resolved. While many cases settle at this stage, if it does not, all is not lost. This is an opportunity for both sides to take a hard look at their positions, narrow issues that are in dispute, and work towards future resolution. This is not an opportunity for the Defendant(s) to ask the Plaintiff more questions; the lawyers advocate at this stage.
While very few cases proceed to trial, Defendants know that Renée and I will take cases through a trial if they do not offer the right amount to settle a case. This puts pressure on the Defendants to consider our clients’ cases meaningfully, and with the respect that they deserve.
If a settlement is not reached at mediation, we file a trial record and request a trial date from the Court. The matter may be tried by a judge alone or a six-person jury. In advance of the trial date, the parties appear again before a judge who conducts a pre-trial. This judge often canvasses whether settlement is a possibility and facilitates discussions.
Your Case, Your Decision
It is important to know that, while Renée and I give legal advice, the case belongs to our clients. Our clients should feel equipped with the appropriate information to make the right decision for themselves, be it settlement or trial. Throughout this process, our clients’ dignity and autonomy remain our central focus.
We work hard with the hope, through the civil litigation process, that our clients’ experiences are acknowledged, they feel a sense of control, they receive compensation for what they have suffered, and the result provides a sense of closure having held wrongdoer(s) accountable.
