Is the "Low Velocity Impact" Defence Unethical?
The Law Society of BC’s Winter Benchers’ Bulletin is now out and available here. As always there are many good tips and reminders to help keep out of ethical hot water.
Among the various tips is a reminder to litigators that encouraging reasonable settlement is a must. Specifically the Law Society published the following reminder:
Chapter 8, Rule 1(a) of the Handbook prohibits lawyers from instituting or prosecuting proceedings that, although legal in themselves, are clearly motivated by malice on the client’s part and are brought solely for the purpose of injuring another party. Rule 4.01(2)(a) is the counterpart to Rule 1(a) in the new BC Code. In addition, BC Code Rule 2.02(4) requires lawyers to encourage clients to compromise or settle a dispute on a reasonable basis.
Encouraging Compromise or Settlement
2.02(4) A lawyer must advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and must discourage the client from commencing or continuing useless legal proceedings.
This led me to think about the Low Velocity Impact defence used in response to personal injury lawsuits. I’ve discussed this many times. In short the LVI Defence is an argument that a Plaintiff suffered no injury due to the minor nature of vehicle damage following collision.
This defence has been rejected numerous times in British Columbia with Courts stating that it has “no scientific justification“, a defence that does not follow “logic or legal principle” and is a “myth“. Given these findings is it fair to conclude the LVI Defence leads to a “useless legal proceeding“? Is it unethical for counsel to run a trial based solely on the LVI defence? As always, feedback and comments are welcome.
Encouraging Compromise or Settlement
2.02(4) A lawyer must advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and must discourage the client from commencing or continuing useless legal proceedings.
This led me to think about the Low Velocity Impact defence used in response to personal injury lawsuits. I’ve discussed this many times. In short the LVI Defence is an argument that a Plaintiff suffered no injury due to the minor nature of vehicle damage following collision.
This defence has been rejected numerous times in British Columbia with Courts stating that it has “no scientific justification“, a defence that does not follow “logic or legal principle” and is a “myth“. Given these findings is it fair to conclude the LVI Defence leads to a “useless legal proceeding“? Is it unethical for counsel to run a trial based solely on the LVI defence? As always, feedback and comments are welcome.