20 June 2014

FIVE PRINCIPLES FOR SUCCESSFUL APPEALS OF ADVERSE TRIAL JUDGMENTS



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

HOW TO BEST SUPPORT YOUR PROFESSIONAL MISCONDUCT DEFENCE

Credit: Jennifer Wilson; University Western Ontario News
Anyone who is a professional risks being accused of misconduct at some point in her or his career. Because the standard for proving that misconduct is generally only proof on a balance of probabilities (just more than 50%), rather than the proof beyond a reasonable doubt standard of criminal allegations, you need to be ready to much more proactively rebut professional misconduct than you would in a criminal investigation situation.

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.

28 April 2014

Criminal and Quasi-Criminal Liability of Employees, Supervisors, Executives and Corporate Directors for Business Events

Image courtesy of Suat Eman, freedigitalphotos.net.
What if this crane collapses, and hits workers on the construction site below it? Could you be liable to charges if you were operating the crane at the time? What about if you supervised its loading immediately prior to the collapse with a load that seemed especially heavy? How about if you own the company that erected the crane? What if you are a corporate director of the corporation that manufactured the crane?

Workplace incidents leading to serious injury or death of workers, pollution releases and contamination, mechanical failure of trucks, trains and boats, and financial or accounting irregularities can expose employees, supervisors, executives and corporate directors to both criminal and quasi-criminal personal liability. While sanctions can range from a small fine at the low end up to imprisonment at the high end, the key point is that you can be found personally liable for events which you might have had very little control over.

A proactive policy of due diligence within your entire business will best protect everyone against charges being laid, and best defend against any charges that are laid. That means properly documented safe working practices, clean environmental practices, mechanical maintenance practices, and generally accepted financial or accounting practices. It’s not enough to just do it - you need to carefully make records of when, where, how and by whom those practices were implemented. Be able to prove that you had reasonable plans, and that you followed those plans.

But in addition to looking out for the company and your colleagues, you also need to look out for yourself. If a government investigation is launched into your business practices, you don’t want to wind up being blamed for the acts or omissions of others. SEEK INDEPENDENT LEGAL ADVICE is the best suggestion that I can offer.

It’s not that your corporate legal counsel will give you bad advice, but his or her loyalties need to first lie with the business - not to you personally. You need to talk to your own lawyer. If you’re lucky, the company will even pay for it - there’s no conflict in the company paying, and it certainly doesn’t hurt to ask. It’s in everyone’s interests at a business that all persons who might personally become targets of an investigation receive timely, knowledgeable and independent legal advice. This kind of independent legal advice comes at a bargain price compared to what hiring legal counsel to go to court might later cost.

And if you do wind up getting charged, again seek out your own lawyer. The company could still certainly pay. In fact, I hope they would pay your legal fees if you were simply acting in the course of your employment or director’s duties. You lawyer might, in combination with legal counsel for the company, work out a deal with the prosecutor whereby the company pleads guilty in exchange for the prosecution undertaking to drop all the charges against the individuals like yourself. Be careful of joint legal representation, where it might be suggested that you plead guilty in exchange for charges being dropped against the company! Even if the company offers to reimburse you for any kind of fine to which you are subject, you will still be the one stuck with the conviction.

11 April 2014

ANIMAL LAW 101 PART III: CONTRACT DISPUTES CONCERNING PETS

Yes, you can indeed adopt a recuse pot belly pig from the SPCA,
but such an adoption still involves contract law. This is Ophelia. 
One of our core courses in first year law school was contract law, because making, breaking and enforcing agreements is at the heart of what makes our economy tick. Animals are as much implicated in contract law as they are in any core area of law, even when they are being “adopted” rather than being bought and sold. There are principally two types of contracts to know about where animals are concerned: (1) contracts for purchase, sale or lease of the animal itself that involve a full or limited transfer of property rights, and (2) contracts for services or goods concerning the care or use of the animal. It helps to understand some of the basics of contract law in order to understand your rights in making, breaking and enforcing animal contracts. 

For the first type of contract involving full or partial ownership transfer, you need to understand that animals are fundamentally moveable property, subject to the same rules as other moveable property (sometimes called chattels) like furniture. A lot of us think of our pets as a lot more than property, and indeed animal cruelty and protection laws increasingly require that those looking after animals meet particular standards of care, but fundamentally every animal can be bought, sold or leased like other moveable property unless some law prevents such a transaction. There are lots of special rules governing contracts for the buying and selling of immoveable property (real estate) in order to make sure that everyone understands who owns what piece of land. But moveable property buying, selling and leasing terms are mostly left up to those concluding the contract — so watch our for what you are agreeing to when you are thinking about any kind of animal transaction.

Contract Principle #1 - MAKING THE CONTRACT: You need an offer, acceptance of the offer, and consideration in order to achieve a binding contract. The way this would work in animal terms could be:

BUYER: “I will buy your Norwegian Fjord horse team from you (the offer) for $4000 (the consideration from the buyer).”
SELLER: “I will sell you my Norwegian Fjord horse team (the consideration from the seller), for your offered price of $4000 (the accepted offer).” 

This may seem simple, but the contract making process can bring lots of grief to both buyer and seller if there is no real meeting of minds on what is being exchanged, an offer expires before acceptance, or what is thought to be acceptance is really a new counter offer (because a new condition has been added). 

Contract Principle #2 - CAN IT BE A WRITTEN OR ORAL CONTRACT?: An oral contract is fully enforceable, but can be difficult to prove without witnesses, and may lead to misunderstandings. Notwithstanding that I’m a lawyer who earns my living by drawing up written contracts for people, I can tell you there’s nothing wrong with the “handshake deal” for most moveable property so long as you cover off the basic requirements for a contract. Probably writing down the basic provisions of the offer, acceptance and consideration, dating the document, and then having the parties sign the document, would be a better practice to avoid future misunderstandings

Contract Principle #3 - ALL ANIMAL EXCHANGES ARE SUBJECT TO CONTRACT LAW: Even a rescue animal adoption is subject to contract law principles. If the rescue animal you welcome into your home just shows up on your front porch, with a pathetic mewing sound, contract law isn’t engaged so long as it is clear the animal doesn’t belong to anyone else. But if someone “gives” it to you, or you get it from a shelter, contract law is working its magic, even if you don’t see that magic. Someone giving you the animal likely has acquired some property rights in it, which they will be transferring to you.

The reason to be aware of contract law principles even when a "free" animal is involved is for situations involving questions like what if the people giving you the animal decide they want it back? What if they decide later that they want to be paid for it? What if they decide later that you aren’t a fit animal adopter, and they demand that you turn the animal over to an animal shelter? What are your rights in such cases? What if you are the person making the demands — can you do that to the person to whom you’ve given the animal? The answers lies in the terms of the contract for the transfer of animal ownership. 

If the transfer was made with no conditions attached to it, you’re probably in the clear. However, if you only have an oral contract for transferring ownership, and the other party claims there were conditions, you might be put in the unenviable position of proving there weren’t conditions. Sure, if the matter went to court the burden of proof would rest on the party claiming there were conditions, but what would happen if that party produced two witnesses to claim there were conditions, and you had no witnesses? A simple (even handwritten) transfer on paper (even by e-mail) without conditions would be your best defence to future claims of breach of contract. 

If there were conditions attached to the transfer, and you agreed to them (usually by signing a contract), you’re probably stuck with the conditions, unless you can demonstrate that they are “unconscionable.” That term doesn’t mean that you simply don’t like them. Or regret to agreeing to them. Or that most people wouldn’t have agreed. It comes down to something incredibly oppressive, and even then a court might uphold the terms if you voluntarily agreed, and it was clear enough what you were agreeing to. If, however, the wording of the contract is unclear, then that is a completely different situation where some legal advice might help discover what the reasonable interpretation of the contract should be. 

Contract Principle #4 - BUYING A PIG IN A POKE MUST STILL LEAD TO A PIG: Commercial animal sales or leases are also subject to basic contract principles, including fitness for purpose. This means that if you are purchasing a dairy cow where all parties understand the purpose of the cow will be to produce milk, and that cow fails to produce milk, or you are purchasing what is claimed to be a fully trained horse suitable for riding, and in fact the horse is far too wild for anyone to ride, then your vendor has breached the contract by not providing the thing sold. It would be insufficient for a vendor to claim that the contact was only for a living cow, or a living horse, if in fact the contract (and the higher amount of consideration paid) was for an animal for a specific purpose. 

Contract Principle #5 - ALL CONTRACT BREACHES ARE FROWNED UPON: Just because you believe the other party has breached its side of the contract doesn’t necessarily give you the right to breach your side of the deal. So if you’ve contracted to acquire an animal within the next week, and the animal is in fact delivered in two weeks, you can’t refuse to take the animal and honour your side of the deal, unless it was made very clear in the original contract that the contract would be terminated if the animal could not be delivered within a week. You might be entitled to some modest damages, but not to just walk away from the contract. 

Contract Principle #6 - CAREFULLY CONSIDER REMEDIES FOR BREACH: The best contracts stipulate the remedies for breach right in the contract terms, like a return of the animal or a refund of the purchase price Some animal contract disputes will wind up in small claims court, depending on the amount of damages sought. But be aware that small claims courts usually can only award damages, and not force the transfer of an animal from one person to another person. Such a transfer will usually require the intervention of the superior court of justice, which can become a quite expensive proposition. 

Family law issues can become intertwined with contract law remedies involving animals where a domestic contract (sometimes called a prenuptual agreement) stipulates what happens to family animals upon the break down of a relationship, but one or both parties aren't happy with the contractual outcome, and thus wind up seeking resolution from a superior court. 

Contract Principle #7 — CONTRACTS FOR SERVICES OR GOODS INVOLVING ANIMALS SHOULD BE SPECIFIC: If you are contracting for something that is not unique, you may need more details in the contract specifying the precise details of the thing that is the subject of the contract. Thus while a contract for transfer of ownership of a particular animal may be sufficient by naming the animal (and its purpose, if any), a contract for “dog walking” will likely need to be quite particular as to how many dog walks are being purchased, when those walks will take place, the locations of the walks, and any other details that are important to one or both of the contracting parties in order to develop and maintain a mutually harmonious contractual relationship. 

In the end, contract law is all about fostering harmonious human relationships, based on people keeping their word to each other, and giving them places to go in the form of the courts to obtain fair resolution to disputes, rather than having to take the law into their own hands. 


24 February 2014

MUST I GIVE OUT MY SOCIAL INSURANCE NUMBER (SIN) TO A PRIVATE BUSINESS?

Canada's Just Retired Privacy Commissioner, Jennifer Stoddart.
Photo Credit: Office of the Privacy Commissioner of Canada. 
Social Insurance Numbers (SINs) used to be tossed around like middle names. Everyone had one, and although you had to ask people in order to find out what their number was, no one really thought much about sharing them. In fact, in a lot of places they were even used an an identification number. When I was in the Canadian Forces, we had to write our SINs on the top right corner of all of our tests - it seems the military had thrown out the "serial number" and replaced it with what something it thought was more efficient. How times have now changed.

Every Canadian's SIN is part of his or her core biographical data. Someone who already has your name, date of birth and address might only need your SIN to get up to all sorts of mischief on the identity theft front. The Office of the Privacy Commissioner of Canada goes to so as to suggest that you never provide your SIN to a private sector organization, unless it is required by law to collect it. And there's only one reason it legally needs it: income reporting, such as when you open an interest bearing bank account.

It's actually contrary to Canadian law for a private business to demand your SIN as a condition of providing you service, unless it is collecting the number for income reporting purposes. Certainly some parts of the private sector like collecting SINs as part of personal identification and to increase credit score searching accuracy, but they CANNOT demand your SIN, unless it is for income reporting.

So the next time someone demands your SIN, ask: why? If the answer isn't income reporting, then just politely decline. If you are then told you won't be provided with the service unless your provide your SIN, call their bluff. Tell them they will be violating Canadian law (the Personal Information Protection and Electronic Documents Act - PIPEDA) if that is the sole reason you won't be provided service.

I know it isn't easy to hang tough on an issue like this. I had to recently call the bluff of a large company on this very issue. First, they claimed I had to provide my SIN to get service. I said "no" and told them that they would be violating Canadian law to refuse. They then came back, and demanded two years of audited financial statements (something even more personal, and costing big bucks) as an alternative to providing my SIN. I again said "no" and insisted that such a demand was likewise contrary to Canadian law, because it was effectively a denial of service. Two weeks later they caved: no SIN, no audited financial statements, just my signature at the bottom of a form agreeing to a credit check. But hey, even me, the privacy lawyer, felt the pressure. So you'll need especially steely resolve to resist simply caving on the SIN front.

Service Canada has put together a useful FAQ on the topic at the following page: http://www.servicecanada.gc.ca/eng/about/reports/sin/cop/section4.shtml

02 January 2014

WHY A REAL ESTATE TRANSACTION IS THE SECOND BEST BARGAIN YOU'LL EVER RECEIVE IN LEGAL SERVICES

If you read my last post on wills being the best bargain you'll ever receive in legal services, you might be wondering why I rank real estate transaction as the second best bargain - instead of perhaps the first best bargain. There are a few reasons.

First, you don't have a choice in Ontario (where I mostly practice) over using a lawyer for a real estate transaction. Other places you can use non-lawyers to close a transaction, but not in Ontario. By comparison, for wills DIY is an option (though not a very good one). 

Second, real estate transaction legal fees will often cost more than wills in absolute terms. Still not much, but more. However, strangely enough people don't seem to complain about real estate transaction legal fees. Perhaps because they are buying or selling a very expensive thing, because real estate agent commission fees will be many times greater than the lawyer's fees, or because they may be making a tidy profit off the real estate sale (if selling) or getting their dream home (if buying), and thus relatively modest legal fees don't seem to them to be a big deal. 

Third, but real estate transactions remain a great bargain in legal services. In fact, real estate lawyer fees haven't gone up in decades! We're not just talking about fees adjusted for inflation, we're talking about real dollars fees. The $1000 transaction fee in 1971 is still the $1000 transaction fee in 2013. Amazing, isn't it. Whereas other legal fees have risen significantly, for various reasons real estate transaction legal fees have not. Notwithstanding house prices have increased many times over. 

It's beyond the scope of this post to explain why these fees haven't gone up, just enjoy the fact that they haven't. And that there isn't any risk of them rising appreciably for the foreseeable future. 

But just like when shopping for a lawyer to do your will, shopping for a real estate lawyer should not generally be a cheapest is best exercise. Lots can go wrong in a real estate transaction. Quite a bit of personal care and attention is required on a lawyer's part to make sure a transaction closing goes smoothly. If you simply go with whomever is cheapest, you stand a good chance of not getting much attention from the lawyer, not because the lawyer is a "bad" lawyer, but rather because with prices that low s/he simply can't afford to give much time to clients when overheads are so high.

Even for those of you reading this post who aren't in Ontario, you should still seriously consider using a lawyer for your real estate transaction. Sure, the advent of "title insurance" has meant that a number of the inquiries lawyers used to routinely make are no longer absolutely necessary, but we all know that insurance coverage often doesn't turn out to be as good or as comprehensive as we initially had hoped it would be. Better to prevent problems in advance through a lawyer conducting diligent inquiries, rather than having to fall back on insurance to compensate you (but not fix the underlying problems) later.

With fees so low, why does any lawyer even bother anymore practicing real estate law? I'll give you perhaps a surprisingly idealistic answer to this one: because many of us believe it to be an important public service. Plus many of us enjoy the client interaction in an area of "happy law" where both buyer and seller are excited by the prospect of the life-changing potential that a real estate sale or purchase brings with it. For many clients, a real estate transaction may be the only involvement they ever have with a lawyer (should they ignore my last blog post, and not consult a lawyer for a will). Sure, the legal fees earned from real estate transactions can also help pay the bills in a law office, but people need to realize what a great bargain real estate legal services are compared to the amount of legal work involved in closing a real estate transaction. 


The purpose of post this isn't to somehow invoke your pity for the poor, overworked, underpaid real estate lawyer. Lawyers are grown up guys and gals who are old enough to make the decision to get out of real estate law if they decide the work isn't worth the earnings. Law is both a business and a profession, and needs to be practiced as such. Clients do us a great favour in trusting us with their legal work, and not the other way around. But a public who increasingly hears horror stories of astronomical legal fees often driven by apocalyptic litigation strategies (like in commercial or family court), needs to realize that there are legal bargains still out there where everyone can feel good at the end of the day that they were able to afford professional legal services at a very reasonable cost, which made their lives better. 

26 December 2013

WHY A WILL IS THE BEST BARGAIN YOU'LL EVER RECEIVE IN LEGAL SERVICES

One of the understandable realities of private legal practice is clients wanting to know how much a legal service is going to cost. Unlike buying a television, usually clients don't ask "how much?" so that they can shop around for the best price, because no two lawyers or the services they provide are exactly alike. Rather, clients seem to ask about price to see if they can afford the service, or to determine if hiring a lawyer to do the work is worth it to them, instead of trying to do the work themselves, or not seeking a legal solution at all to their problem. 

From what I hear, rather than focusing primarily on price, picking a lawyer will often involve people coming up with answers to questions like: (1) who do I trust?; (2) who do I think is most skilled and experienced?; (3) who responds best to my needs, like quickly replying to my questions or at least returning my phone calls or e-mails?; and (4) who is most convenient, either because the lawyer offers services through the Internet so that geographic location isn't a factor, or because the lawyer happens to be physically located close to where I live or work? 

Picking a lawyer solely on price may be false economy. If you're retaining a lawyer on an hourly basis, hiring one who charges 30% less per hour, but ultimately bills you 50% more time, will cost you more in the long run. 

Likewise, if you're hiring a lawyer based on a block/fixed fee, which is common in many solicitor matters like the preparation of wills or the conduct of real estate transactions, picking based on price (with a preference for low over high) might mean that you have little personal contact with the actual lawyer because s/he simply can't afford to give you a lot of face time due to the very low fees which mean that in order to pay for a high overhead and still turn a slight profit, a very large amount of business needs to run through the practice that inevitably will be mostly handled by non-lawyers under the overall supervision of the lawyer. 

I've been fortunate that people never decide not to hire me because of fees (hopefully because they value my experience and responsiveness to their needs), except in one area of law: wills. I often conduct litigation on behalf of clients where the bills can unfortunately mount up because of the multiple court appearances and painstaking drafting of voluminous submissions that can be required in court actions, but those clients seem very satisfied with the value for money that they receive. Perhaps because I stay engaged with them to keep them informed of court progress, and collaborate with them on overall strategy. 

However, when it comes to wills, I've found people occasionally choke on cost. It doesn't happen that often, but it does happen. The unfortunate part of the price aversion is that wills are likely the best value and often the least expensive of the legal services that I offer. 

I sometimes counsel prospective clients not to hire me for litigation, even though that's how I mostly earn my living, because the amount in dispute is so small that my fees could exceed their potential exposure to liability. I believe I have a public duty not to profit from people's desperation when being dragged into court, and only take on cases when it seems I can provide value to clients that outweighs the legal risks they are exposed to. 

But going to a lawyer for a will is going to always pay off in the long run. The risks of not seeing a lawyer for your will include hundreds of thousands and sometimes even millions of dollars not going where you intended it to go after your passing. Relatives could fall to infighting over your assets. The government could wade in to impose heavy taxes and fees. Everything could get tied up in court for years. 

I haven't conducted any kind of survey to determine what people expect to pay for a will. But in my personal opinion (not speaking as a lawyer, but as a person who needs a will himself), a lawyer doing your will is probably the best bargain you will get in the legal services world. While the price of a will can vary depending on its complexity, they start at just a few hundred dollars. And that's not just my fees, but many lawyers' fees. Adding in powers of attorney for property and personal care will only slightly raise the price, and there is usually a significant discount for two spouses who have wills done at the same time (in Ontario, spouses always need separate wills). 

To be frank (and I try to be as frank and open as possible with my clients and on this blog), I too prior to becoming a lawyer used to think wills were super simple things that one could whip up all by yourself on a Saturday afternoon when watching a football game on television. But then in law school I started to read about all the will disasters when things hadn't been executed properly, or important clauses had been forgotten, or unhappy relatives whom had been intentionally forgotten decided to initiate decades-long court battles worthy of a Dickens novel to overturn a will that they perceived as unjust. 

Then, when I started drafting up wills in private practice, and reviewed voluminous legal texts on just how I was supposed to do that, I increasingly appreciated all the skill and care that need to go into a properly drafted will or power of attorney. The lawyer needs to learn about and understand your life. That can't happen in a ten minute meeting that is mostly comprised of the phrase: "sign here." Often more than one lawyer-client meeting will be required, the lawyer may need to carefully review a several of your financial documents, and some legal research could even be justified to ensure you get the will you deserve, that is ideally custom-crafted to your own personal circumstances. Not just to the circumstances of some "fill in the blanks" "model client" who doesn't really exist. 

We all know there is an increasing litigiousness in our society. We also know that we are all passing away richer than ever. Now, if you own a home without a mortgage (or at least plan to be mortgage free in the future), you will be passing away rich by historic standards. Now, more than ever, it's vital that your assets go where you want them to go. Plus, with fewer and fewer people getting legally married, common law spouses will not necessarily have the same rights to assets/insurance/pensions of a deceased as would a legally married spouse. 

So see a lawyer about your will. And don't be put off by the cost. It'll be the best bargain you'll ever receive in legal services! Trust me. I'm a lawyer.