Thursday, October 23, 2014

Should I Hire an Out of Town Lawyer?

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. 

Tuesday, October 21, 2014

Can I Appeal an Appeal I Lost?

Interior of Supreme Court of Canada.
Source: Wikipedia.

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.

Monday, October 20, 2014

Should I Appeal My Negative Judgment in Family Court?

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
You often won't have a choice about going to Family Court at the trial level. Either you're the Applicant, petitioning the court for something (divorce, spousal support, child support, child custody), or you're the Respondent replying to an application for one of those things by your ex-partner. Sometimes you'll be happy with the outcome of your family law case at the trial level, but unfortunately you'll often be dissatisfied, either because you didn't get everything you asked for, or because the other side got some or all of what it asked for.

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.

Thursday, October 16, 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)
Administrative Monetary Penalties (AMPs) have been around for a long time, though they used to simply be called civil penalties. I've been unsuccessful in my efforts to find out who invented the term, but in the Canadian context it seems that it was the Canada Border Services Agency that first popularized the term to refer to monetary sanctions imposed for violating government regulations (anything from not declaring that Hungarian salami that was just too tempting to leave behind on your last visit to Budapest, to misclassifying your industrial importation of softwood lumber).

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.