It's about persuading decision makers of the strength of your case in a 'very human system'
This article was produced in partnership with Bogoroch & Associates LLP.
For Linda Wolanski, lawyer at Bogoroch & Associates LLP, advocating on behalf of individuals who have suffered wrongs and been injured is a privilege — but her path to the role of advocate wasn’t a straight one.
The first four years of her career were spent on the defence side, which "was a great way to learn because your clients are big insurers who can absorb loss,” Wolanski says. She articled at an insurance defence litigation firm and discovered early on that she loved being in court and thrived under the pressure of “having unexpected facts thrown at you and needing to think on your feet quickly.”
“It was exciting,” she sums up.
But when you go to trial for an injured person, they only have one case and it’s important they get the best representation possible. This is because the opposing side is typically an institutional defendant with substantial financial resources, Wolanski points out. As plaintiffs’ counsel, one has to be prepared to invest considerable legal resources and disbursements in order to put forth a compelling and winnable case, and that’s something Richard Bogoroch, founder and managing partner of Bogoroch & Associates, is willing and able to do. After ten years of working together, when Bogoroch asked Wolanski to join him at his own firm she didn’t hesitate. Their working relationship now spans over three decades.
“Richard is committed to excellence, and believes in access to justice as a core value — we take on cases that are complex, challenging and which may not have a guaranteed recovery if we believe the case has merit and that the client has suffered compensable harm,” Wolanski says. “We’ll do the legal work, invest in the case and give that client the opportunity to obtain a just result, which is the ultimate goal. I find working on behalf of injured victims personally gratifying and rewarding.”
As soon as they come through the door Wolanski aims to thoroughly understand her client and their situation, and then the fun begins, she says. Wolanski relishes obtaining key admissions at the discovery stage, gathering evidence from experts and treating physicians, emphasizing strengths and minimizing weaknesses in order to build the strongest case possible.
In her 36 years of practice, Wolanski says the introduction of mandatory mediation and therefore the possibility of early resolution has been the greatest benefit to her personal injury and medical malpractice clients. It focuses all decision makers early on in the litigation, and everyone is there for a purpose — to see if they can come to a reasonable compromise that mutually benefits the parties. The biggest challenge clients face in civil litigation today is delay. It takes years to be able to even set your case down for trial, and even after that “you’re lucky to get a trial date within two years, which is really unacceptable and a huge advantage to the insurers.”
"That’s the big stick in our business — insurers respond if there’s something pressing,” Wolanski says, noting Bogoroch & Associates’ practice is to move cases as expeditiously as possible. “If they’re on the verge of trial, for example, they’ll be more responsive in terms of assessing the risk, analyzing the case and trying to get it resolved.”
Personal injury is an area where you have to be strategic in order to persuade the decision maker of the strength of your position, Wolanski notes, and you’ve got to read the room, wherever you are. If you’re talking too fast in court, for example, and the judge can't write down what you’re saying, you’re wasting your time, Wolanski says. Look at the jury, look at the insurance adjuster at a mediation and see what’s resonating. It’s a human system, she notes, as insurance adjusters, mediators, juries and judges “come with their own set of experiences and inherent biases. It’s all about assessing the decision makers and what impact you can have on them.”
“The key to being successful in many of our cases is being able to prove the facts that support your case — those are the building blocks. It’s may not always be the law that determines the outcome, but rather, it’s what you can prove factually. I was taught early on that the facts are really important and that has held me in good stead.”
Wolanski has tried a number of accident benefit cases before the Financial Services Commission of Ontario that are important in terms of giving accident victims more access to justice, including one of the first special award cases that held insurers more accountable to insured persons in terms of how they adjudicate accident benefit claims. In another case, her client had a post-concussion injury but returned to work at a family business. Wolanski argued that was sheltered employment, not competitive employment, and the arbitrator agreed. This entitled the client to income replacement benefits beyond the two-year definition change. The decisions stand out to Wolanski because it could be followed in subsequent cases to make it easier for plaintiffs’ lawyers to advocate for their clients.
Wolanski regularly serves as one of the articling principals at the firm, and while the first few years of practice have a steep learning curve she says Bogoroch & Associates offers a big advantage to young lawyers: opportunities to go on discoveries, mediations and pretrials. Advocacy skills are critical, but law school is very academic, Wolanski notes. Part of the job is giving the articling student instructions and guidance in terms of how to work in the real world.
Bogoroch & Associates also offers articling students and junior lawyers another advantage: access to the considerable wisdom Wolanski has accumulated over the course of her stellar career, which she’s only too happy to share with the next generation of lawyers who have the privilege of fighting for the rights of their injured clients.
“My practice has been incredibly diverse and that's why it’s been so interesting,” Wolanski says, noting even though it’s a demanding and challenging area it’s one she’s passionate about. “I’ve done every aspect of personal injury and medical malpractice litigation you can imagine and I’ve been lucky to have that wide range of experience, but I’m still learning all the time.”