If you have started a personal injury lawsuit in Ottawa or elsewhere in Eastern Ontario, you may eventually hear, “your case is going to pre-trial.”
In essence, a pre-trial is a court conference where settlement is a major focus, but it is also used to help manage the case if it proceeds to trial. The parties, their lawyers, and a judge discuss whether the case can be resolved before trial and, if it cannot, what needs to happen to get the case ready for trial.
Pre-trial is one of the important steps in a civil case.
What Happens at a Pre-Trial?
Judges have a lot of discretion in how they run a pre-trial. Every judge runs their pre-trials a little bit differently, and they can occur virtually or in-person.
Here are some common actions that will typically happen though:
- Each party will submit brief summaries of the case for the Judge to read beforehand (pre-trial briefs).
- The judge will usually make few comments about the litigation process and the case. They may also ask the lawyers to say a few words.
- The judge will typically identify the strengths and weaknesses of each party’s position. Sometimes the judge shares their finding right away, other times, it happens later on.
- Often, the judge will put the plaintiff and their lawyer in one room and the defendant and their lawyer in another and speak to each side individually. This is called “caucusing”. The judge will take offers back and forth and try and work out a settlement – sort of like a mediation. The difference is, there’s not a lot of time spent waiting around at a pre-trial. Offers are exchanged quickly and your lawyer and the judge will be asking you to make very quick decisions.
If your case settles, the pre-trial ends. If the case does not settle, the judge and lawyers will talk about “trial management”. This is mainly just a discussion on what steps need to be taken before and during a trial to ensure everything goes smoothly.
When Does a Personal Injury Pre-Trial Happen in Ontario?
In Ontario personal injury cases, a pre-trial generally takes place after discoveries have occurred and expert reports have been exchanged. This would typically be several years after you start your case.
By the time the matter reaches pre-trial, both sides usually have a clearer understanding of the case.
Is a Pre-Trial the Same as a Trial?
The pre-trial is not the trial itself.
No witnesses are giving evidence, and the Judge can’t make a final decision about the case. In fact the pre-trial discussions are “without prejudice” meaning you can’t bring them up later at the trial. Parties are free to make concessions at a pre-trial to try and settle the case without giving up that part of their claim/defence should the matter go to trial.
Your pre-trial Judge cannot and will not later be the Judge at trial. When you go to trial, neither you nor your opponent can bring up what the Judge (or anyone else) said at the pre-trial.
Do I Have to Accept the Pre-Trial Judge’s Recommendation?
You don’t have to agree with it, but you ought to consider it. The judge is a neutral third party who has seen a lot of cases like yours. It’s important to consider their perspective. Another judge with the same opinion could just as easily be the judge at your trial.
That said, the judge is giving their opinion based on a small snapshot of the case. A different judge could have a different opinion, particularly after hearing all the evidence at a trial.
Your case may be decided by a jury, and not a judge. Juries are highly unpredictable. One or two key findings of fact by a jury can often change the outcome drastically. The jury’s findings will be based on:
- what the evidence is,
- what the witnesses have to say,
- how likeable you are, and
- ultimately, who tells a more believable story – you or the defence.
How Do I Know Whether to Accept the Judge’s Recommendation?
Just because your pre-trial Judge has a favourable view of your case doesn’t mean you’re going to win at trial, nor does an unfavourable view mean you’re going to lose.
Almost every personal injury case has a ton of moving parts. 10 different Judges or juries could reach 10 different conclusions about your case. Ultimately, you should take your guidance from your lawyer, who will evaluate the evidence and tell you the risk and likelihood of all the possible outcomes.
Your lawyer will be frank with you about the risk/reward analysis. Make your settlement decisions considering all the information (your lawyer’s analysis, the judge’s opinion) and your comfortability with risk.
How Should an Injured Plaintiff Prepare for a Pre-Trial?
Typically, injured Plaintiffs do not need to speak at a pre-trial (other than perhaps to tell the Court their name, say hello, etc.). The Judge may ask you if you have anything to say. It’s quite proper to say that you have nothing to add. You should discuss it with your lawyer beforehand if you do want to say a few words.
Your job at the pre-trial is to listen and give instructions to your lawyer about settlement offers.
You should prepare by considering the strengths and weaknesses of your case, and thinking about settlement and the potential risks/rewards of proceeding to a trial should the matter not settle. As I mentioned above, the pre-trial happens very fast and you’ll be asked to make quick decisions.
You should always keep an open mind – but it’s not helpful if you’re turning your mind to settlement for the first time in the pre-trial. It’s good to ask your lawyer questions and get their opinion well in advance of a pre-trial.
It’s also a good idea to review the rules about courtroom etiquette.
Will My Personal Injury Case Go To Trial If It Does Not Settle At The Pre-Trial?
Sometimes, but not necessarily.
A pre-trial can be an important turning point in an Ottawa personal injury lawsuit. It gives both sides an opportunity to assess the case realistically, receive judicial feedback, and explore resolution before the time, cost, and uncertainty of trial.
Even if your case does not settle at a pre-trial, the pre-trial often helps foster further settlement negotiations after the fact. Sometimes there may even be another pre-trial where the parties try and settle again.
