What is a Pre-trial and Why Do I Need One?

This post was originally published on Nov 3rd, 2010 and updated on June 17th, 2020.  

If you have a personal injury lawsuit in Ottawa or certain other jurisdictions in this Eastern Ontario, you will have a pretrial before your case goes to trial before a judge or a judge and jury.

The reason for a pretrial is to resolve the case through negotiation or to narrow the contentious issues in the case. In a personal injury case, the issues are usually: who was responsible for the collision (liability) and what are injuries worth (damages).

Who presides over a personal injury a pre-trial?

A case management judge or another court official called a case management master facilitates a discussion of the issues and reviews the strengths and weaknesses of each party’s case.

Who attends a personal injury pre-trial?

The lawyers for the injured person and the injured person attend. The lawyer for the defence, usually hired by the insurance company, as well as a representative of the defence, usually a claims examiner or adjuster, will also be present.

When does a pre-trial happen during a personal injury case?

Before the pre-trial is held, parties are required to complete all examinations for discovery, produce all of the required documents and complete any related motions.

What will my lawyer do to prepare for a pre-trial?

Your lawyer will prepare a brief with a detailed outline of the evidence you will be leading at trial. This will include key passages from the transcripts from the examination for discovery, important medical records and expert reports. The brief will also identify the witnesses you intend to call at trial and what they will say at trial.

How will I prepare for my personal injury pre-trial?

You will likely meet with your lawyer before the pre-trial to discuss your settlement position and any developments in the case that arise from the defence lawyer’s pretrial brief.

What will happen during the pre-trial?

Different judges run pre-trials in different ways. Sometimes all the parties, lawyers and the judge will meet in a courtroom. The lawyers will make submissions and the judge will comment and then give an evaluation of the case.

In other cases, the judge will meet privately with the lawyers and go through the case and then come back into the courtroom to speak to the parties about his or her views.

A pretrial may last one hour or it may last several, particularly if the parties are actively negotiating.

What happens after the pre-trial?

If a settlement is reached, the case will not proceed beyond the pretrial.

If a settlement is not reached, the judge will discuss the expected length of the trial with the lawyers and a trial date will be set.

Although the parties will often be disappointed if the case does not settle, having a fixed trial date motivates the parties to continue to work toward a settlement. It also provides a deadline for the resolution of the case—the trial date.