23 October 2014
In days of old, your only lawyer choice was the one whose office you walked or drove by everyday, because s/he was in your neighbourhood. While the Yellow Pages and print advertising might have provided you with slightly more choice, almost all those lawyers you saw in print were going to be locals, as mostly only locals were willing to pay the high advertising fees required to reach a particular narrow geographic market.
The Internet changed all that.
Now, you've got a choice of millions upon millions of lawyers worldwide. But as children know from their experience in candy stores, too much choice can be as debilitating as too little choice. How's a legal consumer to decide in a world that has gone from famine to feast of choice?
Those who are most scared of choosing incorrectly might still go with that neighbourhood lawyer you travel by everyday. And many will stick with the tried and true method of lawyer recommendations from friends. You might wind up quite satisfied with the results from those methods. However, the problem is that legal practice (just like medical practice) is becoming highly specialized, and legal fees are increasingly spreading out across of broad spectrum of price points, meaning the local or the referral might not always be your best total value choice.
In the old days, the simple country lawyer did everything, just like the simple country doctor. Neither could afford to specialize, and their clients couldn't easily connect with any alternatives. While the surgeon/paediatrician/family doctor is long gone, the general practice lawyer does continue. You might in fact be served quite well by one, but increasingly they mostly do non-litigious solicitor work: real estate, wills & estates, incorporations, contract drafting. A lot of that kind of work is, in any case, often best done by a local in town lawyer, who has experience with the local legal landscape.
For legal fields requiring more concentrated expertise, like appeals, tax, customs, the environment, criminal, constitutional, professional discipline, or entertainment law, it might be worth your considering hiring an out of town lawyer. There are a few reasons for doing so.
1. The out of town lawyer might have particular experience and knowledge that you are seeking.
Don't assume that even if you reside in a large city you'll be able to find available and appropriate legal expertise for your needs. For example, in a highly concentrated field like constitutional law, you might find that the local lawyers with expertise can't act for you because of conflicts of interest, or because of their current workload, or because you can't afford their rates.
Canadian lawyers now have very flexible inter-provincial practice rules (other than in Quebec), so that an Ontario lawyer can likely come to do your criminal appeal in Vancouver, and a Winnipeg lawyer can draft you television script contract in Nova Scotia.
2. Regardless of whether you are in a smaller town or larger city, you might have found that you do not personally get along well with the available lawyers in your town, or might have found that the lawyers you have dealt with won't provide you with the level of personalized and responsive service that you require
The lawyer-client relationship is a very personal, almost intimate one, where both lawyer and client need to have confidence in the other in order for the relationship to flourish. There being all sorts of personality types, it's natural you won't get on with all lawyers you meet. Plus you might find some firms - big or small - offer overly impersonal service, where you don't hear often enough from the lawyer, and your communications aren't promptly returned.
The Internet is an amazing facilitator of personalized and responsive service. Some of my best clients, with whom I have the best relationships, I've never met. The clients found me on the Internet, liked my level of responsiveness (sometimes being able to get back to them within minutes of being contacted, and usually within the same day), appreciated my experience (obtained practicing in most of Canada's major cities and provinces, at all levels of court), and found my rates reasonable.
Speaking personally as a consumer, I don't care if I'm able to look a vendor in the eye when I purchase something. What I want is to hire someone who is knowledgable, who treats me with respect, who can answer all my questions, and who provides good value in the product or service I need.
3. There may be comparative economic advantages to hiring an out of town lawyer
Becoming obsessed with avoiding travel charges from lawyers can turn out to being penny wise and pound foolish (as my Scottish immigrant parents would say), as any travel charges will usually comprise only a very small portion of a total litigation bill. If, for example, the out of town lawyer possesses three times the expertise at half the hourly rate or block fee of the local lawyer, travel charges increasing your total bill by 15% should not be a concern.
Clearly for lower cost legal services (usually the solicitor real estate/ wills/ incorporation type of thing) you would need to be most careful about travel, but solicitors rarely have a need to travel. For high cost litigation services, you should examine reasonableness of travel costs through the lens of likely number of days in court and level of legal fees charged (be they block fee or hourly rate) for your matter.
For example, hiring an out of town lawyer to come into town to do an appeal can make a lot of legal and financial sense. An appeal will usually only last for one day, and because no oral evidence would generally be called on an appeal, no prior in-person in town witness preparation would be required. Therefore, your travel costs to bring in out of town counsel for an appeal would usually only be one return air/train ticket or vehicle mileage, plus meals and a hotel for one night. This should be less than 15% of your total legal costs. For block fee criminal matters, out of town counsel might even build their travel charges directly into your quoted rate.
For other technical litigation matters like tax, customs, professional discipline, and some commercial disputes, out of town counsel might also make sense because the legal arguments will all be created in the lawyer own travel-charge free office and filed with the court in advance, so that the lawyer only need come into town for a few days at most. For federal matters, most proceedings can be moved to Ottawa for hearings upon request, so regardless of where you live in Canada, you could use a lawyer close to Ottawa without worrying about travel charges.
By contrast, bringing in out of town counsel to conduct a four week fact-intensive criminal trial would lead to significantly high travel costs in proportion to legal fees. Though even those costs might be justifiable if you are receiving the level of expertise and service that you desire from that out of town counsel, and her/his legal fees are somewhat lower than local counsel.
Legal fees charged are generally dependant on level of experience, overhead costs, and local market conditions. So, as I've been a lawyer for two decades, who has appeared in the Supreme Court of Canada several times, my fees would in theory be higher than for a second year lawyer who has only ever appeared at lower levels of court. However, overhead costs for space and staff are much higher in big cities than in small towns, and likewise larger cities tend to encourage higher legal fees being charged for litigation (although not necessarily for solicitor work like real estate).
Thus, hiring me (as a lawyer located in a smaller centre), might be very cost effective for you in a larger urban centre like Toronto. I'm by no means inexpensive in my local market, but my expertise combined with location and service may make you conclude I'm a bargain in the big city. For solicitor matters like real estate, however, you'll usually find the best total value in retaining local counsel.
21 October 2014
|Interior of Supreme Court of Canada.|
Regardless of the level of court you start at with your appeal, there will always be a chance of at least one more appeal level if you lose the first appeal. Sometimes, there will be two or even three more appeal levels.
More than a few people at times find all the possible appeals that can happen in a case to be a ridiculous abuse of the judicial process, but those possible appeals are the fundamental injustice check valve for a judicial system staffed by imperfect humans, who are prone to factual and legal errors.
So just as for any trial you lost, after which you asked yourself the fundamental question - should I appeal? - you can also ask the same question after an unsuccessful appeal, regardless of whether you are the appellant or the one responding to the initial appeal. Whether you attempt to appeal further may depend on similar factors upon which the original appeal was dependant: the importance of the result to you, the justice of the case, the availability of grounds of appeal, and your resources to support an appeal.
Just as trial judges can make errors of law, so too can appeal judges. Sometimes, you might win at trial, lose on appeal, and then win on further appeal.
Never assume that there's no way to further appeal an adverse judgment - consult a appeals lawyer, who can advise you on where a further appeal might be brought, and on your chance of success.
Don't assume that the higher your appeal goes, the lesser your chances of success. I've seem some quite shocking reversals even in the Supreme Court of Canada, where a party has won at trial, and at the initial appeal, but then lost at the Supreme Court of Canada.
The trick for any appeal beyond the first initial level is to convince the higher appeals court to hear your appeal in the first place, as the court's "leave" to appeal might be required. Supreme Court of Canada cases almost always require leave, and leave is only granted to about ten percent of those who apply. So you will really need to sell the higher appeal court on the justice (or injustice) or your case, as well on the egregious errors of law. Plus, for the Supreme Court of Canada you'll usually have to demonstrate an issue of national importance.
20 October 2014
|In Canada, we don't elect our family court (or other) judges, however who you draw as the single judge |
hearing your family court case can make a lot of difference to the outcome.
Source: Campaign Website of Denise Brown
Compared to a trial where you had to show up, you'll always have a choice over whether to appeal a negative judgment to a higher court (unless you're forced to respond to an appeal by the other party to a case). The questions you should be asking yourself in considering whether to appeal are:
1. how great of an impact will this negative judgment have on me and my family?
2. how long lasting will be that negative impact?
3. am I better off to just wait for a change of circumstances (in my own situation, or the other side's situation), and then reapply to the trial court to vary the negative judgement?
4. what are my prospects of success in an appeal?
5. which court do I appeal to, and what is the procedure?
6. do I need to hire a lawyer to do the appeal for me?
Answers to all of these questions are somewhat intertwined. In terms of impact, a slightly too high (in your opinion) spousal support award against you would arguably have a much lesser impact than losing custody of your children to the other party. The lasting effect of the impact relates to whether this is a final or interlocutory (temporary) family court order - though even temporary orders can become the status quo that is later difficult to change. If you think circumstances will improve for you in the future (like you might be in a better psychological and financial position to care for your children), then you might want to just wait out a negative order and reapply to the court in six to twelve months citing change in circumstances.
As for prospects of success, while really only a lawyer can give you something of an accurate assessment of your case on appeal, you could consider for yourself where the "justice" of the matter appears to lie, and try your best to imagine how unjust to the outside objective observer the negative judgment in question would appear. I know it's tough to be objective about such things, so perhaps ask others what they think. No appellate court is going to care about you having to pay $550 per month in child support, when really you think the figure should have been $500. However, lots of courts might have sympathy for you losing complete custody of your children, when you had presented a viable parenting plan, and there are serious doubts about your ex-partner's ability to parent.
One reason you might stand a better chance on appeal than at trial is that you will often get three judges hearing your appeal, rather than the one judge at trial, thus maximizing the prospects of obtaining a reasonable, rational decision from at least two of them (majority rules). However, you should realize that appellate courts generally defer to trial court findings of fact, because it is only the trial courts who hear the live evidence.
In Ontario, interlocutory family appeals coming from the Superior Court of Justice go to the Divisional Court, NOT the Court of Appeal, and need prior leave to appeal from the Superior Court of Justice. Final family law appeals coming from the Superior Court of Justice go to the Court of Appeal, and might need leave depending on what is being appealed. Thus the which court do I appeal to question is very important, as you may have a very short time limitation in which to appeal, and don't want to be stuck in the wrong court after your time to appeal to the right court has expired.
As for whether you need a lawyer, the answer is probably. I'm very sensitive to the fact that unfortunately employing legal counsel throughout family law court proceedings can become prohibitively expense, because of all the time (and thus lawyer billable hours) that family trial litigation can consume. By comparison, appeals are usually quicker and possibly less costly to pursue - though might only result in the matter being sent back to the trial judge for a new decision based on proper legal principles. Appeals also involve a much more paper-based and technical process (because appeals are more about the law and trials are more about the facts) than for trial family court, thus anyone trying to undertake a family appeal by her or himself needs to be familiar with the Rules of Court, how to conduct legal research, how to prepare a factum of argument and book of authorities, and then how to orally argue the case before the court.
In theory, it's possible for a self-represented litigant to conduct a successful appeal, but you're going to have an uphill battle that from a legal argument perspective will be more challenging than the battle you fought before a trial family court.
16 October 2014
Do I Need a Lawyer to Fight an Administrative Monetary Penalty (AMP)? And What Exactly is this AMP Thing that I Received?
|Source: Reproduced in Evaluation of Administrative Monetary Penalties (Canadian Food Inspection Agency, 2012)|
The reason they're AMPs or civil (and not criminal) penalties, is that they don't arise from conviction after prosecution - that would be a true "fine" in the classic sense - but also unfortunately don't carry with them the same guarantees of procedural fairness implicit in a prosecution, like the right to an oral hearing or (sometimes) the right to raise due diligence as a defence.
The reason you should care about AMPs, and consider hiring a lawyer to defend yourself against a Notice of Violation (the term usually applied to the document specifying the AMP), is that their value is headed dramatically upwards and there may be other difficult to understand consequences for you in the future if you're subject to an AMP. I'm not suggesting a lawyer is needed in all cases, but for business AMPS can sometimes now run into the hundreds of thousands of dollars range, and potentially affecting future licensing to operate the business.
Don't get too hung up on the term AMP. The Canada Revenue Agency has long standing policies imposing hefty civil penalties on individuals and corporations who don't file their taxes on time, or misreport their taxable income, but still doesn't use the AMP term. Municipalities from shortly after the invention of the automobile have been imposing penalties on street parking violations, but have only recently adopted the term AMP, it seems in an effort to move parking ticket disputes out of court and onto a desk where those disputing a ticket can make only written rather than oral submissions.
I'm not suggesting that civil penalties are "bad" per se, since for many people it's better to receive a civil penalty rather than a prosecution for a regulatory transgression. There's supposedly less stigma attached to a civil penalty, but the thing to watch out for is that there isn't necessary a lower monetary value to an AMP (in fact, it's often much higher than a criminal monetary penalty), and there could be other licencing or future freedom of action consequences for you or your business.
You need to understand that all agencies who seek to impose AMPs have set up systems permitting you to contest the AMP. However, you also need to understand that these systems are nothing like traffic court where you get your "day in court" to show up many months later and orally plead your case to the judge or justice. Instead, to contest an AMP you may be expected to produce precise written submissions including documentary evidence within a very short timeframe to a faceless decision maker in a government office. You certainly could do this without a lawyer's help, but you need to carefully consider if you wish to invest the time and effort personally (or as a business) in doing so, and whether your background skill set lends itself to making persuasive submissions based on legal and government policy principles.
Aside from contesting the violation itself, you should know that you might have a greater chance of success in just contesting the amount. Unlike traffic or parking offences which often work on a fixed monetary amount, or criminal fines which have a great discretionary range left to the trial judge, the monetary value of an AMP may often be determined by a complex points formula involving a base rate that is adjusted up or down through the addition of point values (such as on a scale of one to five) and weightings (like 30% for points connected to past violations). Thus while the agency will initially determine the AMP amount based on its calculation of the points, that doesn't mean that the calculation is necessarily correct - you can do your own calculations, and make submissions on why the agency was incorrect in its calculation, but make sure you take the time to study the system before you make any submissions. There is no commonality to AMPS monetary quantum points systems, they vary by agency to agency.
The contesting an AMP process often involves first asking for a review of the AMP by the enforcement body which issued the AMP to you (usually another, higher ranking officer than the one who issued you the AMP in the first place). If you don't like the result of that review, your case can then often proceed to a three member panel who is still affiliated with the agency imposing the AMP, but who will be more independent than the first level reviewers. If you still don't like the result, you can usually further appeal to a competent court - which court you go to will depend on under which Act you were imposed the AMP.
The short answer to the question of whether you need a lawyer to fight an AMP will probably depend on the amount of the AMP, whether or not you believe it was justly imposed, and the true value (financial/moral/licensing) to you of having the AMP overturned. If you do retain a lawyer to contest your AMP, make sure you verify the experience of the lawyer in that specialized field.
09 September 2014
|Pittbull? Probably not. Vizslador (Vizsla/Labrador), yes.|
Photo credit: Natalie Rowe
It's unfortunate that throughout history there have been legislative trends, where legislators around the country, continent or world rush to pass similar laws to address what they believe to be similar problems in similar supposedly popular ways. Thus has come to pass the trend of creating laws to ban particular breeds of dogs, even though there is no scientific way to truly determine dog breed, and the effectiveness of these racist bans in achieving their laudable aim of reducing dog bites is doubtful at best.
Everyone can agree that dog bites aren’t good things to happen to anyone, and are particularly tragic for children where a dog attack runs the risk of disfigurement or even death. One legally-certain response to this public health concern would be the banning of all dogs. No more dogs, no more dog bites. End of problem.
Sure, we might then still complain about cat bites or even yak bites, and consider banning them as well, but at least the dogs would no longer be a issue. But even the breed ban advocates never argue that all dogs should be eliminated, just as human racists never argue that all humans should be disposed of, just the bad ones, whom they argue can be identified not by what they’ve done (because we don’t want to let it get to that point) but rather by what they might do.
The pro-ban argument proceeds from the assumption that there is supposedly a racial predisposition to badness, and thus if we just get rid of that race, the risk of badness will be greatly reduced. This argument used to be made for humans, notwithstanding that it is now considered to be highly offensive and scientifically unsound. Now this argument is being applied to dogs.
Its proponents trot out various pseudo-scientific figures and anecdotal media stories of savage attacks by particular dog breeds. The difficulty with the data is that it often doesn’t support the breed ban target as being the most aggressive breed, and there’s no reliable nation-wide hospital data on dog bites by type of breed. Even the academics trying to apply some intellectual rigour to the debate can get stuck relying on media stories to identify breeds associated with serious bites, with the obvious problem that specific breeds might be considered more newsworthy or be misidentified. A certain Stephen King’s Cujo notwithstanding, when was the last time you heard the media bothering to report the story of a vicious St. Bernard attack?
Another challenge of looking at this question under Canadian law, is that a lot of the (mis)assumptions are based on U.S. reports and data. But we do at least have the Canadian Veterinary Journal as a peer review publication whose articles have academic rigour to them. Although now a bit dated, the article “Fatal Dog Attacks in Canada 2000-2007,” Can Vet J. Jun 2008; 49(6): 577–581 is important as it analyzes Canadian rather than American data. The study identified 28 human deaths caused by dogs during the 13 years study period. A pitbull caused only one of the deaths.
In that study, Rottweilers, huskies and mix-breed dogs were all implicated in far more deaths than pit bulls. The study found that dog accessibility to, interaction with and adult supervision of children were the driving factors for fatal dog attacks, and that breed contributed little to nothing in the way of propensity towards fatalities.
Although there is some data out of the U.S. suggesting that quite a few biting incidents have occurred with pit bulls as the instruments, that’s kind of like saying quite a few stabbing incidents have involved steak knives. No one seems to be looking at the kind of owner or training behind the pit bulls, and everyone seems to agree that most any dog (if starting from an early enough age) can be trained to be vicious or loving. In the nature/nurture debate, the data appears to strongly favour nurture as the determining factor. We ban bad drivers of cars, not the cars themselves - even though in anyone’s hands a car is a deadly weapon. Instead of banning breeds, shouldn’t we consider banning more people from the privilege of having any dog?
The most unreasonable part about doggy racism is that there’s no such thing as different dog races from a genetic perspective. Just as with humans, every person and every dog is a mix, with some having more characteristics than others of a particular kind, but with no test to definitively say: oh, you’re definitely of that race.
Now don’t get me wrong. I’m not suggesting that doggy racism is an equal evil to the scourge of human racism. I’m at heart a constitutional and human rights lawyer. Note the word “human.”
I’m also a law-and-order kind of guy. Served for nine years as a Federal Prosecutor. I believe that where there’s a clear cause and effect relationship between something and harm to society, then it’s the responsibility of government to go after that something. Guns of any type kill people — no doubt about it — mainly from suicide or accident, so I’m all for extensively regulating them. But not a lot of dogs are used in suicides, and I’ve never heard someone say “I didn’t realize it was loaded” about a dog.
In addition, animals remain ownable property, and I’m not suggesting that should change, though they clearly have a growing number of their own quite limited rights protecting them from human cruelty. The law has recognized for some time that animals aren’t cabbages or rocks, which you can mostly do with as you will.
But the impact of doggy racism isn’t just on dogs; it directly affects their owner humans who are often put in very difficult positions of proving to authorities that their dogs aren’t racially forbidden. Some of these dog owners are very poor, and suffer from a variety of health problems. Their dogs provide them with important emotional comfort. Having an animal to care for has been demonstrated in study after study to improve the animal guardian’s mental state. Breed ban or no breed ban, dog owners have always been legally responsible for bad acts committed by their dogs.
To conclude, I’d like to take you right to one of the breed ban pieces of legislation, the Ontario Dog Owner’s Liability Act. I use the Ontario legislation as my example because that’s where my law firm is located, but we could pick legislation from various spots around Canada or the United States all of which are variations on a common theme. Included in the provisions of the Ontario law is the following:
1. Definition of Banned Dog: “pit bull includes, (a) a pit bull terrier, (b) a Staffordshire bull terrier, (c) an American Staffordshire terrier, (d) an American pit bull terrier, (d) a dog that has an appearance and physical characteristics that are substantially similar to those of dogs referred to in any of clauses (a) to (d).” Unfortunately, the definition in essence involves saying that a pit bull is a pit bull. Mention is made of breed standards of the Canadian Kennel Club, the United Kennel Club, the American Kennel Club and the American Dog Breeders Associations, but none of those organizations are government bodies, they don’t agree on breed standards, the pit bulls being targeted by breed bans rarely have papers, and will very often be mixed breed dogs that happen to share physical characteristics of many breeds. Just like the pit bull itself was considered a mixed breed, until dog breeder organizations started to establish breed standards after much debate.
2. Burden of Proof: “If it is alleged in any proceeding under this section that a dog is a pit bull, the onus of proving that the dog is not a pit bull lies on the owner of the dog.” Thus, according to the definition section we aren’t going to really tell you what a pit bull is - though we’ll know one to see one — and if we claim he’s a pit bull — even though he’s a St. Bernard — you’re the one who’s got to take the time, trouble and expense of proving otherwise.
3. Presumption of Capital Punishment: the Ontario legislation provides for a variety of measures far short of destruction that may be ordered by a court where a dog is found to have attacked a person or domestic animal: confinement to owner’s property; restraint by leash; muzzling; positing of warning signs. However, for pit bulls death is stated to be the mandatory minimum sentence.
While all of this would seem at the very least unfair to pit bulls and their owners if everyone instantly knew from a conclusive test what was and was not a pit bull, the ban might at least be legally implementable. But where there is no testing for “pit bullness,” we’re all just guessing at dog breeds, and a mere unsupported claim by the government that you have a pit bull requires you to prove otherwise if you’re to stop your beloved pet (who has never threatened anyone) from being put to death, we have a legislative travesty. Legislators throughout North America need to reexamine the science behind how best to address the important public health challenge of injuries and deaths caused by dogs, rather than going after family pets based primarily subjective assessments of dog appearance.
20 June 2014
1. BE ON TIME WITH FILING THE APPEAL
It might strike you as strange that it's more important to be on time with an appeal, than to have great grounds of appeal, but really that's how life works in general. The world's best employee who's always three hours late for work isn't going to last long in any job.
Most appeal limitation periods are a maximum of 30 days from the date of judgment. Some are as short as 10 or 15 days. Most count all calendar days (including holidays and weekends), though some only count Monday to Friday working days. It all depends on the wording of the court rules that govern your case.
Some appeal rules require that you serve and file the appeal within the time limit, meaning serve the notice of appeal on the opposing party, and actually file that notice together with proof of service in the correct appeal court. Others require that you only file within the time limit, with service to come slightly later.
If you are thinking: “oh, missing that limit by a few days can't be such a big deal, can it?” think again. You'll at least need to bring a motion before the appeal court to extend time for filing, and offer evidence of a very good reason why you were late. Quite frequently, you'll just be told you're too late.
Miss the deadline to file the appeal by a few years, and no one is likely going to care about how good your appeal grounds happen to be or even your reason for being late unless you're still locked up in jail. The principle of finality means that courts don't like it when cases where final decisions appear to have been taken get resurrected over and over again.
2. APPEAL TO THE CORRECT COURT
People, lawyers included, frequently appeal to the wrong court. Why this happens is because appellate routes can get complicated.
Criminal appeal routes aren't usually too complicated, but you may still need to choose between your provincial Superior Court and the Court of Appeal if you were convicted in provincial court. In some provinces, you have a choice in where to bring your appeal, however your grounds of appeal might be more restricted if you go directly to the Court of Appeal. The Supreme Court of Canada may also eventually be an option.
Civil appeal routes are a lot more complicated than criminal routes. First you need to determine if your matter is governed by federal or provincial law in assessing your civil appeal options.
For appealing government decisions, you might need to go to one of a variety of specialized administrative tribunals.
Federal civil matters might also need to go to the Tax Court, the Federal Court, or the Federal Court of Appeal. Don't get to thinking that you would logically always go to the Federal Court first, and then to the Federal Court of Appeal – sometimes you jump over the Federal Court, depending on which body you are appealing from.
In Ontario for provincial administrative and small claims matters, one option could be going to the Divisional Court, but if you are appealing a small claims judgment you would go to a single judge panel of the Divisional Court who would hear your case in the location where your other Superior Court judges sit, whereas if you need a three judge panel of the Divisional Court such as when the appeal is from the Landlord and Tenant Board, then those hearings only happen in limited regional centres which is where you need to file the notice of appeal. As a further example of restricted geography for appeals, in bankruptcy matters in Ontario there are only four locations in the province that hold hearings. Thus you need to figure out not only the correct names of the court, but also where it sits so that you file your appeal documents in the correct registry office.
If you're wondering: “why so many different appeal courts?” the answer is similar to the age old question: “why do many different government departments with so many offices?” Courts are split up along both geography and subject matter expertise, just like government offices.
3. FIND A TRUE APPEALABLE ERROR OF LAW, RATHER REHASHING THE TRIAL JUDGE'S FINDINGS OF FACT
You can't just appeal because you lost at trial. You need a good reason for why an appeal court should overturn the trial judge's findings. And the fact that you don't like those findings isn't a good enough reason.
Generally, you need to put your finger on an error of law, or mixed fact and law, that happened during the trial and that may have affected the end result. If you can show multiple errors, all the better.
Usually no new evidence is heard on an appeal. An appeal isn't just a second kick at the trial can. Rather, an appeal is a fairly academic review of the trial process, to ensure that you received a fair trial, and that the trial judge didn't make any significant errors of law during the trial that may have affected the end trial result.
4. GET THE SYMPATHY OF THE COURT BY EXPLAINING THE INJUSTICE
As much as lawyers love technical legal arguments, I've found they tend not to succeed on appeal by themselves. Rather, during an appeal you also have to get the sympathy of the appeal court, by explaining to the court the injustice you suffered at trial, and how the appeal court can advance the cause of justice by deciding the appeal in your favour. Try to make the appeal about more than just you, and generalize it to be about similar injustices that might also befall others.
5. ORDER THE TRIAL TRANSCRIPTS ASAP
Appeals are almost always based on trial transcripts, regardless of whether those transcripts are of a 20 minute highway traffic speeding offence trial, or a 20 days child custody family law trial. You need to be able to afford to pay for the transcripts and order them in a timely way in order to perfect your appeal toward getting a hearing date.
Count on at least $500 per day of trial for transcript costs. But a 20 minute hearing will be very inexpensive - the $500 isn't some kind of minimum charge. You usually don't have to order transcripts prior to filing your notice of appeal, but you should do so soon thereafter, and usually need to provide proof to the appeal court that you have ordered and paid for the transcripts. Most of the time advance payment will be necessary. And make sure you order the required number of copies according to the appeal rules - you can't just photocopy an official transcript for court use.
You can successfully conduct an appeal yourself, but an experienced appeals lawyer can greatly increase your chances of success, and save you lots of hassle. Usually appeal fees are quoted on a flat block fee basis, rather than hourly, so at least you'll have some cost certainly over whether hiring a lawyer is both worth it and something you can afford. In determining your ability to conduct your own appeal, you should carefully consider the level of court you will be appealing from: the lower the level of court, the more likely a do-it-yourself appeal might work.
15 June 2014
|Credit: Jennifer Wilson; University Western Ontario News|
You're usually going to need to present written responses to initial misconduct inquiries, and later testify under oath to defend yourself if those allegations progress to a full tribunal hearing. What this means is that you need to practice your profession defensively, being always aware that any action (or lack of action) that you decide upon could potentially lead to a misconduct allegation.
Now I know that taking this advice to extremes can lead to paranoia and working life paralysis, where you'll be afraid to even start work each day for fear that something you do could lead to a discipline investigation being launched against you. But the opposite extreme where you just do what you subjectively think best, without turning over your actions in your mind in comparison to objective professional conduct standards, will equally lead you down a potentially quite dangerous path.
So how to get on with your professional work life, protecting yourself and your livelihood, while at the same time being able to take decisions and enjoy your job? I would suggest there are two principles to follow: the D3 principle, and the TAD principle. These principles weren't created by academics, just by me out of a result of my years of work in the professional misconduct defence legal field.
The D3 principle stands for: document, document, document. This is the principle closest to my heart as a lawyer, and addresses situations after they have happened. I have several professional discipline clients who have, in my opinion, potentially strong defences available to rebut allegations of professional misconduct levelled against them, but who lack anything more than their own personal (and unfortunately sometime vague) recollections about what really happened and who really said what to whom concerning the events in question.
In the teeter-totter that credibility contests can turn into, you don't want to get stuck in the position of only having your own sworn testimony and current recollections of events that might have happened years before to defend yourself with. Having notes taken contemporaneously with events, including detailed dates, times, people spoken with, close paraphrasing of actual conversations, and back up documents are all vital to defending your version of the story.
Now I know document, document, document might seem like an overstated principle, but I find some of my clients don't even get past the first "document" in protecting themselves. You want to preserve all your emails, notes of all your telephone conversations (preferably preserving voice mails), personal notes of your activities, back up documents like video recordings, radio logs, security footage, and witness names and contact details.
I'm not suggesting you do this for every facet of your professional life. But you must do so for situations that set off your spidey sense tingling! You might even at the time write letters to others involved, in order to confirm that they agree with your version of events. Don't just stick your head in the sand and hope that nothing comes of a situation.
The TAD principle is really a more preventative version of the D3 principle: Think, Act, Document. This means that for situations where your gut is telling you there might be some professional ethics risk, you slow down, THINK through the potential ramifications of doing or not doing something (and maybe obtain advice from your professional regulator), ACT only after have taking that time to reflect, and again DOCUMENT your actions, and the thought processes and consultations that went into that Act.
How often are these dangerous situations going to come up? Probably not every day. Though perhaps once a week. And I would suggest certainly once a month. If you aren't wondering if a situation is professionally dangerous at least a few times a year, you aren't trying hard enough.
I've defended teachers, accountants, police officers and medical professionals all accused of misconduct, and the common desire on both my and my clients' parts has always been a desire for better records of the events in question, actually kept by my clients, rather than being potentially selectively retrieved by professional regulatory investigators and prosecutors.
Practicing your profession defensively meaning spotting the problem situations before they explode. You're going to miss a few of them - it happens to all of us. But if you've at least documented most situations, you will greatly enhance your chances of a successful professional misconduct defence, giving your lawyer and yourself something to work with to rebut allegations during an investigation or hearing, rather than just taking blow after blow from the prosecution's evidence, and being only able to offer up a weak "I didn't do it" in your own defence.