10 www.canadianlawyermag.com
Gluckstein Lawyers' Jonathan Burton explains why
every personal injury file carries a psychological
component – and what that means for how lawyers
build their cases
Weighing mental
health damages
INITIAL CONVERSATIONS with clients
tend to centre on one thing: the physical.
Did you break your leg? Have the concussion
symptoms eased? Did you have surgery? For
Jonathan Burton of Gluckstein Lawyers, that
line of questioning captures only part of what
an accident does to a person, and often not
the most consequential part.
Over 21 years in personal injury law,
Burton has watched mental health aware-
ness grow and, in turn, influence how cases
involving psychological injury are built and
argued. The firm is increasingly seeing a
psychological component in injury files, with
clients and their family members grappling
with injury management and the aftershocks
of the accident. He advocates for a shift in
how lawyers approach the intake conversation
from the very first meeting.
"Tragedy, trauma, health – these are things
everyone experiences, and there's a mental
component to all of them, with resilience and
strength at one end, demoralization and dete-
rioration at the other," Burton says, adding that
plaintiff-side lawyers must determine a client's
full functional picture and whether there's a
psychological component to the damages.
"We're hoping that not every person who
comes in has a mental injury, but if they do,
we need to find out because it's part of the
recovery."
The social media Catch-22
Because these cases can take years to reach
trial, lawyers have an opportunity to develop
SPECIAL PROMOTIONAL FEATURE
PSYCHOLOGICAL INJURY
that full picture. The strongest eviden-
tiary record combines testimony from lay
witnesses and medical experts. Colleagues
and friends who knew the plaintiff before
the accident can describe what has changed,
while treatment records from psychologists,
social workers, and psychiatrists can docu-
ment other indicators, including functional
evidence such as withdrawing from a career,
becoming socially isolated, or experiencing
significant weight loss or gain.
The strongest plaintiff is a credible one,
and the same era that has normalized conver-
sations about depression and anxiety has
given insurers and defence counsel an unprec-
edented tool for challenging that credibility.
"You can be sure that the first thing an
insurance company or defence lawyer is going
to do is plug your name into Google and look
you up," Burton says. "It's free surveillance."
The result is a genuine Catch-22. A client
who reports anxiety, a fear of crowds, and
an inability to function in public spaces but
appears in a video at Canada's Wonderland
does not necessarily have a fraudulent claim.
However, that footage exists and may be used
to undermine the client's credibility. Even a
professional who must maintain an active
online presence to keep a business viable faces
the same problem: the image of competence
projected online can be used to contradict the
injury documented in the litigation.
"Tragedy, trauma, health – these are things
everyone experiences, and there's a mental
component to all of them, with resilience
and strength at one end, demoralization and
deterioration at the other"
Jonathan Burton, Gluckstein Lawyers
