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How Does Personal Injury Law Differ in the US and Canada?

personal injury related to "whiplash" or soft tissue injuries, Washington law typically affords higher trial judgments and settlements for injuries involving broken bones, psychological injuries, and wrongful death. Many Canadian lawyers will act for Canadian clients injured in the US with a view toward settling their personal injury claims, but indeed, that's all they can do-try settling your case. Without the license to initiate litigation in the US, Canadian lawyers will have difficulty maximizing the value of a cross border personal injury case in settlement, and are simply unable to force such a case to trial without engaging counsel in the US.

There are significant differences in the way lawyers prepare their cases for trial in the US vs. Canada. In British Columbia, experts are asked to prepare reports which are tendered at trial in lieu of expert testimony. In Washington, lawyers typically provide notice of an expert's testimony, and the expert is then deposed before a court reporter before testifying live at trial. Most Washington cases proceed in front of a 12-person jury, requiring a lawyer who's a good story-teller, to relate a client's life story to a group of strangers and ask them to award compensation to last his client's lifetime. Selection of the right story-teller is critical.

There are also significant differences in the burdens of proof, particularly in products claims. In BC, a company's liability for manufacturing a defective product is measured by a negligence standard, while in most US jurisdictions, liability for defective products follows a theory of "strict liability"-if the product is proven to be defective, the company is liable. Period. Once liability is determined, the defendant company can then be forced to pay the full range of personal injury damages-pain and suffering, loss of enjoyment of life and health, past and future medical expenses, past and future wage loss or loss of opportunity to earn income. In the most egregious cases, companies can further be forced to pay punitive or aggravated damages.

While BC personal injury awards are typically lower, there is one factor which makes litigation north of the border more attractive-the ability to recover "costs". In Washington, an injured party has no ability to recover litigation expenses, such as the cost of producing medical records or the cost of having experts testify in court. It is critical to hire a lawyer with experience in litigating US personal injury claims in order to keep litigation costs to a minimum while meeting the plaintiff's burden of proof.

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