Hergott: Everyone is an expert

Lawyer Paul Hergott writes about the harm of misinformation.

Everyone’s a legal expert when it comes to ICBC claims.

Or any other legal matter when alcohol starts to flow at a social gathering.

All sorts of advice comes out of the woodwork. Some is helpful, but much of it is actually harmful.

Tidbits of legal advice pop up here and there on television, the movies, on the internet and from others who have pursued fair compensation for their injuries. Those tidbits are taken out of context and offered up as if they are “tried and true” pieces of advice that apply to all situations.

The same thing happens in medicine, but people are much more likely to pop in to see a doctor to get the straight goods than to consult with a lawyer.

I am going to give you a golden nugget of advice that applies to all personal injury claims. Keep it in your back pocket and pull it out at social gatherings.

I am confident in saying that because I’ve felt like a broken record giving this advice day after day, week after week, year after year for over twenty years.

Without exception.

It’s really quite simple: “Try”.

And don’t just “sorta try.” Give it a really good try. Follow the advice of your parents and grandparents: Try your best.

There are two possible outcomes from trying.

One is success. Success, particularly in the context of an injury claim, is a beautiful thing.

Has your doctor recommended that you work with a kinesiologist to develop and participate in a stretching and strengthening program? Try it. Try your best at it. In this context, success is achieving a full, or at least more full, recovery.

Has your doctor pulled you away from work? Be assertive with your doctor to please authorize an attempt to return. If authorized, try. Your best. You might surprise even yourself with a fully successful return to work, or at least a partial return.

If that attempt is unsuccessful, try your best to find some other type of work that you might be able to do. And provided you are medically authorized, try your best at it.

Did you enjoy skiing before the crash? Are you uncertain about your ability to handle that activity? If you have any uncertainty at all about whether or not it is medically safe, ask (beg) your doctor for permission. And then try it. Success in this context is returning to an activity that you love.

Always be trying. And trying your best.

You might achieve success. The other possible outcome? Failure. That’s a horrible outcome. But you haven’t sunk any lower.

Think of it like starting at the base of a ladder. You try to climb. Failure doesn’t put you into a hole, it just leaves you standing on the floor where you started.

And if you make it part way up the ladder, you’re much better off than had you not tried.

By trying, you achieve the very best outcomes: You achieve as full a recovery as possible; lose as small an amount of income as possible; and return as fully as possible to the life you enjoyed before the crash.

But I promised you legal advice. So far, I’ve simply given you common sense.

That common sense advice will keep your losses to a minimum.

Hey! Wait a minute! Doesn’t smaller losses mean a smaller claim? Yes.

What kind of ridiculous legal advice is that!?

Not one of my clients has ever walked out of my office with a big cheque saying: “I’m just so grateful that I suffered all those losses.”

Further, my percentage fees, which are deducted from the settlement, mean that the bigger the cheque the greater the deficit they are left with.

The only one benefiting from a larger claim is the personal injury lawyer.

This might, still, seem more like “apple pie and motherhood” than legal advice. In this case though, as in many, the two are directly aligned.

The law requires you to make your losses as small as reasonably possible. In legal terms, that’s called “mitigation.” Failure to do so will give ICBC a strong legal argument that your claim should be slashed.

The law also requires you to prove your losses. How can you possibly prove that you can’t return to skiing if you haven’t even tried? How can you prove the extent your income earning capacity has been impacted if you haven’t tried your best to get back into the work force as fully as possible?

And the law relies on common sense. How hurt could you be if you haven’t tried your best to get better? How much did you really enjoy playing golf if you haven’t stepped foot on a golf course?

It can be hard. Really hard. Before the crash, you were able to do things without a second thought. Now, you struggle through pain.

Pain and functional limitations often lead to psychological impacts like a depressed mood, lower energy and lower motivation.

The law doesn’t expect you to be superman or superwoman. It expects you to try your best, whatever that means in your particular circumstances.

Please share this really, really important legal advice with those you care about.

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