On October 3, 2024, Paul participated in The Legal Innovation Forum’s panel “The Business of PI: Boosting Success Through Strategy and Partnerships.” The lunch-hour CPD program was part of the Forum’s ongoing programming on the business and operational dimensions of Canadian legal practice, with a focus in this session on plaintiff-side personal injury work.
Most of what is written about personal injury practice is about the law: the doctrines, the leading cases, the procedural rules, the appellate developments. Less is written about the business that runs underneath the law, and the questions it raises are different from the doctrinal questions. How are cases selected. How is investigation funded. How are partnerships built and used. How is the firm structured so that the work that needs to be done at trial in year five of a file is something the firm can still afford to do.
These are questions that every plaintiff firm answers in practice, whether or not the answers are articulated. The Forum panel was an attempt to articulate them.
Why personal injury practice is a business question
Plaintiff-side personal injury work, like medical malpractice work, operates on a contingency fee. The client does not pay as the work is being done. The firm advances the costs of investigation and litigation out of its own working capital, often for years, before any fee is recovered. The cases that win pay for the cases that did not, for the cases that should not have been taken, and for the cases that are still in the system.
That cost structure changes how the practice has to be run. A firm that takes any plaintiff PI case that walks through the door will run out of capital before its best cases come to trial. A firm that takes only the strongest cases will leave meritorious matters to other firms and underutilize the capacity it has. The discipline of choosing well, of investing well, and of building the relationships that make both possible, is the work that distinguishes a sustainable plaintiff practice from one that is not.
Case screening as the foundational business decision
The decision of which cases to take is the most consequential business decision a plaintiff PI firm makes. It is made many times each year, usually under significant time pressure, often with incomplete information. The decision shapes everything that follows: which experts are retained, how much investigation is funded, when settlement discussions begin, whether the file moves toward trial, and how the firm’s working capital is deployed over the years that follow.
The criteria for screening are the same as those used in any plaintiff-side civil practice. The standard of care has to be testable on the evidence available. Causation has to be establishable through the experts the firm can retain. The damages have to support the cost of the file. The limitation period has to be alive. The defendant has to be a meaningful defendant, which in PI work usually means an insured defendant or a defendant with collectable assets, and in medical malpractice work usually means a Canadian Medical Protective Association-defended physician or a hospital with insurance coverage.
A case that meets all of those criteria is a case worth taking. A case that meets some of them may still be worth taking, depending on what other work the firm is carrying. A case that fails most of them is a case the firm should refer out or decline.
The economics of investigation and trial
Investigation in a serious PI or medical malpractice file is expensive. The records have to be obtained and reviewed. Experts have to be retained for a preliminary opinion, often more than one. If the case is going to proceed, formal expert reports have to be commissioned. Damages experts (functional, vocational, economic, future-care) have to be retained where the case is catastrophic. Disbursements add up quickly into the six figures on serious files. Each of those costs is fronted by the firm.
If the case settles, those costs are recovered out of the settlement. If the case goes to trial, the costs continue to accumulate until judgment. If the case loses, the costs are absorbed by the firm. The economics of a plaintiff practice work only if the cases that win are paying enough to fund the cases that did not.
The discipline that follows is that investigation has to be focused, expert relationships have to be efficient, and the work product the firm produces has to be of quality high enough to maximize the chance that the case will settle on terms that reflect what it is worth. A file that is investigated poorly will settle for less than it should have. A file that is investigated well will either settle for closer to its true value or will be ready for trial when the time comes.
Partnerships
The “partnerships” framing of the panel title captures something real about modern PI practice. No plaintiff firm operates in isolation. The relationships that make a practice work include the following.
Expert relationships are the most important. The plaintiff firm that has identified, over time, a roster of credible, independent, well-prepared experts in the specialties that recur in its files has built a structural advantage that no marketing can match. Those relationships are built over years, are maintained through careful selection of which files an expert is asked to opine on, and are protected by the firm’s willingness to walk away from cases the expert cannot support.
Referral relationships are the second category. Plaintiff PI work flows through referral networks: from general practitioners to specialists in PI, from PI generalists to specialists in medical malpractice or product liability, from out-of-town counsel to firms in the major centres. A firm that participates in those networks in a way that adds value to the referring counsel will see the right kind of work. A firm that does not will see the wrong kind, or none.
Vendor and consultant relationships are the third. Medical legal consultants, mediation services, litigation funding providers, technology vendors, and case management platforms all sit alongside the firm and shape what the firm can do. The firms that choose well, that integrate carefully, and that revisit the choices as the practice grows produce more output per lawyer-hour than the firms that do not.
The CMPA context for medical malpractice
In medical malpractice work specifically, the partnerships discussion runs into a structural feature of the practice: the CMPA defends most physicians in Ontario, and it does so with experienced counsel, experienced experts, and the resources to run files to trial when it chooses to. The plaintiff firm across from the CMPA is, by definition, working against a counterparty with deeper pockets, longer time horizons, and repeat-player advantages.
The business response to that asymmetry is to be very disciplined about which cases the firm takes, to invest carefully in the experts and the workup, and to position the file so that, by the time it is ready, the case the CMPA is looking at is one it will want to settle. None of that is rhetoric; it is the operational discipline that makes plaintiff medical malpractice practice possible in Ontario at all.
Practical observations
Programs like the Legal Innovation Forum’s session on the business of PI sit in a space that traditional CLE rarely fills. They take the operational questions seriously, on their own terms, alongside the doctrinal questions that everyone else covers. A plaintiff practice that ignores the business questions will not run for long. A plaintiff practice that handles the business questions well, and the law well, is the combination the panel was trying to describe.
The work of building that combination is not glamorous. It is also not separable from the law. The cases that are well-investigated, well-pleaded, well-mediated, and well-tried are produced by firms that have figured out how to fund and manage that work over the long arc of the files. The Forum’s framing of strategy and partnerships captures the essential elements. The application is what each firm has to work out for itself.
