Kevin Henderson at Top Personal Injury Boutique Oatley Vigmond LLP

The firm has recently been named one of the top personal injury boutiques in our annual survey

Kevin Henderson, a partner at Oatley Vigmond LLP, speaks to Canadian Lawyer. His firm has recently been named one of the top personal injury boutiques in Canadian Lawyer’s annual survey. He speaks about how COVID has changed personal injury practice, the legal and non-legal supports his firm provides clients, the future of jury trials and the human side of being a personal injury lawyer.

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Roselie: [00:00:21] Hello, I'm Roselie Williamson and welcome to Canadian Lawyer TV. Today, I'm joined by Kevin Henderson, a partner at Oatley Vigmond LLP. Oatley Vigmond was recently named one of Canada's top personal injury law boutiques in Canadian Lawyers Annual Survey. Kevin, welcome and thank you so much for joining us. 

Kevin: [00:00:42] Thanks very much for having me. 

Roselie: [00:00:44] So Kevin, give us a bit of background on Vigmond. What areas of personal injury law do you handle? 

Kevin: [00:00:50] So our head office is located in Barrie, Ontario, where we have approximately 100 staff and lawyers helping our clients throughout the province. We meet with them not only at our office in Barrie, but we have consultation offices throughout the province and our regularly meeting with people either at their homes or in hospital, depending on the case. Our practice encompasses all areas of personal injury litigation, which means motor vehicle accident cases, slip and fall cases, medical malpractice and long term disability, to name a few. However, we have had cases involving ski accidents or or other ways of parties injure themselves through someone else's negligence. 

Roselie: [00:01:34] While COVID has changed a lot of things in the legal world, please tell us a bit about that from your perspective. 

Kevin: [00:01:41] So you're right, the pandemic has changed how law is practiced in our area of law. That's primarily seen in examinations for discovery and interlocutory motions before the court. So discovery, we are typically doing those virtually from our office, which allows our client to be at home where they're comfortable and perhaps perform better at their examinations for discovery. The other area is motion. So oftentimes we're bringing motions for police records, for example, and that's a simple five minute appearance in most cases. And before the pandemic, we had ourselves driving from our office in Barrie to wherever the jurisdiction where the action was located. So that could be anywhere from you know Barrie. Or it could be Sudbury or it could be Toronto or it could be London or Hamilton. Obviously, that is a pretty significant time investment for what is a simple motion. The courts are now hearing these virtually so we can have those heard from the comfort of our office. And it allows us to be more efficient in terms of the use of our day when we only have a five minute court appearance.

Roselie: [00:02:55] Do you think some of these changes will become permanent, and if so, which ones? 

Kevin: [00:03:00] So I do think a few changes will become permanent. I think it's more likely that people are going to continue to have examinations for discovery virtually. That's in large part due to the defendants in our cases are funded by insurance companies. And typically we're seeing that insurance companies are trying to cut costs. And one of the ways to cut costs is to cause their lawyers to be more efficient and without having to pay them for travel time or pay mileage. It allows them to be more efficient and have that cost savings for the insurance companies. So I think that will stay the way it is. I also think that many of the procedural motions that I mentioned before will stay virtual because it simply is easier for all parties involved. It saves judicial resources and ultimately becomes an access to justice issue. Areas where it won't continue, I believe, are our trials. So, for example, during the pandemic, we were having virtual trials with a judge alone. And those could proceed because there's no technological issues with a jury, for example. Whereas now we're back to doing jury trials and those are in person. And it appears that for. In large measure that in person judge alone trials are likely to continue. Though there may be days where virtual trials are available or permitted, but it will be on a case by case basis. 

Roselie: [00:04:37] There's also been a lot of changes in how staff and lawyers at firms have been working, including the new hybrid model. Tell us more about that. 

Kevin: [00:04:45] Certainly work has changed since the pandemic. We were quite fortunate because prior to the pandemic we had invested significantly in our technology and we're able to go from a fully in-office to fully virtual work environment over a weekend, essentially. And that allowed us to gradually bring people back to work and have a hybrid model as restrictions allowed. And now we are in a position where there are people that work primarily from the office but there, but also with the flexibility to work from home on occasion, which seems to be satisfying not only that, our desire to have the work completed, but also the desire to ensure staff have a work life balance and have the flexibility to do their work that suits them, but also suits us as a firm. 

Roselie: [00:05:45] What are some of the non-legal resources that your firm has in place in order to help clients with their cases? 

Kevin: [00:05:52] One of our primary functions, particularly in motor vehicle accident cases, is to connect people with treatment that will help get them better. And that's one of our primary resources is we have a vast network of people that we have worked with who are trusted not only by by us, but by the insurance industry to ensure people are getting the treatment they need when they need it and where they need it. And that's one of the most important parts of our job, is to ensure that people try to get better. And I understand that people think that personal injury lawyers don't. Want or need their clients to get better. But our goal is always to get them better because. The sad fact is that there are enough plaintiffs that simply don't get better and need our help beyond that initial treatment stage. 

Roselie: [00:06:47] What sort of impact has the pandemic had on how personal injury cases progress? 

Kevin: [00:06:53] That's an interesting question because it has sped up and slowed down cases at the same time. So in terms of getting a case ready for trial, it has sped cases up tremendously because it allows us because technology has allowed us to do examinations for discovery, virtually pre-trial conferences virtually and motions virtually. So that allows us to. Move cases along quickly because, for example, we could have a pre-trial in one matter in the morning in Ottawa and then one in the afternoon in Windsor. And we can do them both. And there's no need to schedule in extra travel time, for example. So that actually allows us to fill our schedules more significantly to get us to the courtroom door. The challenge has been, though, that. Judicial resources haven't allowed us to get as many cases onto trial lists as we would like. Particularly there was nearly two years where jury trials were not taking place and there was already a backlog. So that backlog is only worsened and there are more and more cases getting to that bottleneck which. So our cases are certainly ready for trial, but it's whether or not we can have a judge and jury ready for us. 

Roselie: [00:08:19] And what is your opinion on the future of jury trials?

Kevin: [00:08:22] I think that there's always going to be a place for jury trials in our system. But I also think that there's a good chance that certain matters won't be tried by a jury for much longer. In particular, I think that. Automobile cases where there are deductibles and legal tests that the jury can't be made aware of are ones that are primed to be no longer tried by juries. It allows a judge who was aware of the law, who's permitted to know about the law, to make a decision that's fair and appropriate for both parties, particularly with jury trials as well as there's a time component. It is more efficient and more timely to have a judge alone hear a case and we can move through things faster. So that might relieve some of the bottleneck that I was talking about earlier that's been caused by the pandemic with all of these extra cases getting ready for trial sooner. I think that ultimately a jury trial can can take place, but it will take take longer and perhaps a judge could hear. One and a half or two cases in the time. That it would take for a jury to hear one case. So I think ultimately there's an efficiency there. And certain types of cases like auto cases, lend themselves well to being a judge alone as opposed to judge and jury. 

Roselie: [00:09:50] Tell me about the human side of being a personal injury lawyer. 

Kevin: [00:09:55] Personal injury law is an intensely human experience. Oftentimes, we're meeting clients when they were just involved in a collision and they've been injured. And their life is in chaos. They don't know if they'll get better. They don't know if they'll be able to get back to work. And they don't know what the future holds. The rewarding part of my job is that I get to. Go on that journey with them and help them improve and help them get to a point where they've gotten their life back to the extent possible. And in serious cases involving brain injury or spinal cord injury, for example, we ideally are in a position where we've gotten them the funds they need so that they can live as independently as possible and have their dignity returned to them. Oftentimes in the medical system and in the legal system, it can often feel like clients are just a number. And our job is to bring that independence and bring that dignity back to them. 

Roselie: [00:11:04] What do you say to clients who are frustrated and want to take a settlement sooner rather than later? 

Kevin: [00:11:10] Unfortunately, it is a function of our system that there is delay. When I have a client that has those concerns, I mean, I do remind them that I work for them. So I am bound to take their instructions. But I also remind them that. You have one opportunity to get this right, and we want to make sure that you're fairly compensated for your injuries. And if ultimately a client says to me, Kevin, I need to resolve my case now, then I work for them and that is their prerogative. However, my job is to give them the advice and outline a timeline where I believe their case will resolve and. To ensure that they're compensated as fairly as possible. A lot of times those types of questions arise out of uncertainty about the process. So what I try to focus on early on is to communicate to them the process and to communicate with them on an ongoing basis so that they understand what the next steps are, so that they can understand that there's wheels in motion and things are working away to their benefit. I also encourage that by way of an open door policy, I tell every client I meet that if they have a question that may cause them to lose a second of sleep, I encourage them to email it to me. I can't I can't guarantee that if they email me at the middle of the night that I'll respond right away, but I will get back to them. It's our job to take that stress off their shoulders, take any uncertainty out of the process to the extent possible. And that allows us to build trust and to keep those lines of communication open so that when a client does come to us with a concern like that we, they can understand where we're going and and why we're going there. 

Roselie: [00:13:10] Well, thank you so much, Kevin. We look forward to hearing more about what your firm has in store in the future. 

Kevin: [00:13:16] Thanks again for having me. It was great. 

Roselie: [00:13:18] And thank you so much for watching Canadian Lawyer TV.