Tuesday, February 10, 2015


Credit: "Neighbors (2013) Poster" by Source. Licensed under Fair use via Wikipedia
If you go by the number of court cases I'm involved in helping folks defend themselves against neighbour actions or lawsuits over fences and shrubberies, you'll realize that the old adage "good fences make good neighbours" is patently false. I've got lots of examples of neighbours taking great offence when one neighbour decides to legally erect a fence along (but usually not even resting on) property lines. Other cases arise when a neighbour decides to trim a tree overhanging her property, or move a couple of shrubberies, or exercise a longstanding right of way over a neighbour's property to get to her own landlocked property.

In a perfect world, any of these actions would involve neighbours calmly and politely talking out their concerns, and not having to resort to hiring me to go to court for them. But of course we don't live in that mythical perfect world. People hold grudges and nurse petty grievances. People act unreasonably, even when their actions and reactions aren't logical and aren't in their own financial and human relationship best interests.

You might think people would carefully consider whether spending $10,000 (or even $40,000) fighting over a shrubbery, and in the process totally poisoning a relationship with a neighbour whose help you might actually need in the future, was really worth it. But we all know that hearts rule rather than heads, and that emotions get the better of people time and time again, even when what they are doing really makes no sense.

And even if sense does later enter into the equation, once they are $10,000 down the legal litigation superhighway, it can be very difficult to put the brakes on that Litigious Lexus. Far easier to keep the pedal to the metal, and burn through another $10,000 in lawyer gas, and then another $10,000.

I'm happy to say my clients don't start frivolous litigation, or take ridiculous actions against their neighbours. I'm not speaking as someone with blinders on. Rather, I just seem to attract those who are getting the short end of the stick. And I refuse to represent anyone who won't listen to at least some reason, because they won't be clients whom I can help. They're still entitled to legal representation, I just don't have to be the one providing it.

So what's to be done when you're on the receiving end of a property neighbour legal dispute in order to minimize cost and hassle?

1. Try to deescalate the dispute before it gets to court. I know this is easier said than done, but many believe court will offer a quick and inexpensive or at least definitive fix to the problem, and usually none of those assumptions are correct. Disputes can drag for years in court, at huge cost, and then the court might not even offer a ruling on all the issues in dispute.

2. Try to keep the dispute in Small Claims Court, where your legal fees will be much lower because the process is much quicker. Unfortunately, Small Claims Court won't determine questions of rights in land itself. It only determines questions of money owed - such as from cutting down a prized tree that the neighbour didn't have the right to cut.

3. Don't try to represent yourself in court on the dispute. I'm not making this suggestion from the perspective of a lawyer who earns his living from clients who hire me to go to court for them, but rather as a person who sees countless courtroom disasters caused by smart people trying to navigate the highly complex legal system by themselves. No one tries to do open heart surgery by themselves. No one with any sense even tries to set a broken bone by themselves. So why try to do the legal equivalent by yourself? The patient is going to die, or at least wind up far sicker than he was before the start of treatment.

4. Keep scrupulous records of all events and interactions with the neighbour and authorities over the issue. Recording names, dates, places and detailed descriptions, including taking photos (and maybe video) are needed. These records will be key to ensuring your evidence of your side of the story is believed in court.

5. Be constantly considering what a reasonable settlement offer would look like right from the start. "Reasonable" means not just to you, but to the neighbour. What's going to be attractive to the neighbour, but still get you at least some of what you want? Because you really, really want to avoid going to court in such matters, and really want to shorten as much as possible the time such a dispute spends dragging through court.

Sunday, February 8, 2015

Demystifying Why Resolving High Conflict Family Law Cases Takes So Long and Costs So Much

Credit: Thomson Carswell
The Rise in Family Law Self-Reps

There's been lots of talk lately, both in the media and amongst my lawyer colleagues, about the rise of self-represented litigants. There's quite a bit of debate over how rapidly self-representation has increased from preceding decades, and over the causes of self-representation growth. Everyone agrees that the majority of self-represented litigants are involved in family law matters, and that most of those report the main reason for self-representation is inability to continue paying significant legal fees even though they often started with legal representation.

Some suggest that the rise in self-representation is because lawyers have become too expensive or the court system now takes too much time. But if we're to believe literary legal historians like Charles Dickens, who spent years working as a journalist in 19th century courtrooms prior to knocking out his novels that paint lawyers in a very unflattering light, it seems lawyers have always been expensive for litigation because of the enormous hours one can burn through without any final resolution of a case in sight.

Why Any Litigation Can Get Expensive

Non-litigation tends to often be quick and easy for lawyers, and thus fairly easy on the pocket book for clients. Thus getting your will done or having a real estate transaction looked after will often only run you from a few hundreds dollars to under $2000, depending on complexity.

I conduct lots of types of litigation for clients, and can tell you that even costs can vary widely depending on time and complexity of a case, with straight forward criminal defence matters usually costing the least, and appeals often costing the most because of the volume of material to be waded through and the amount of documents to be crafted for the court. However, in the middle lies civil trial litigation - including family law - where costs can be unpredictable because they largely depend on the willingness of the opposing party to be reasonable, or take an apocalyptic approach to resolution.

Resonableness as the Key to Cost Control

There are low cost family law cases that can be quickly settled because everyone is reasonable, everyone mostly knows in advance how assets are to be split and how children are to be cared for, and what kind of support is mandated by the law and fundable by the payor. I wouldn't say those cases are rare. But they require lots of good communications between the parties prior to seeing a lawyer, while lawyers are involved, and after lawyer involvement ends. Unfortunately, the conditions that led to the breakdown in the family relationship means that good communication can be difficult to find in those kinds of situations.

High Conflict as the Guarantee of High Cost

Where party communications are poor, and the post-breakup relationship might be described as "high conflict," you need to plan to spend considerable funds on legal fees because of the huge lawyer time commitment that conflict will often consume. One lawyer spending hundreds of hours on a family law case is not unusual, when one considers that same-day preparation time and actual in-court hours could run as high as 10 hours a day, and even a moderately complex family matter could stretch over 10 trial days once all the witnesses and exhibits have been presented in court. That's 100 hours of time right there, not including pre-trial preparation and negotiations, and pre-trial motions, which could easily triple that number to 300 hours. Post-trial or interlocutory motion appeals could add another 100 hours, even if no re-trial is ordered (which is always possible). Thus 500 hour range cases become entirely plausible.

Since most lawyers won't bill more than about 1500 hours in a year, you're talking 1/3 of a year of lawyer time! Truly an astonishing figure, but one that seems unavoidable if the relationship is high conflict, and there are children, asset splits, and spousal support to consider.

Those numbers translate into legal fees just for one party in the $150,000 to $500,000 range! These are truly staggering costs, that few can afford. Thus the completely understandable tendency to self-rep as a case drags on. Sometimes then followed by retaining counsel again after a legal disaster ensues from a misunderstanding of the law.

The "why is this taking so long" factor in each family law case is built on the fundamental inability of any litigant who had not had prior experience with the family courts system to understand just how many delays there can be because of the complexity of the legal procedure.

We can all rail against the wishfulness that family lawyers should all be funded by the government and thus be free (which is the case for very, very low income Canadians for very limited legal services, but if you have even a minimum wage job you likely won't qualify) or that lawyers should heavily discount their services to be more affordable to the public (the reality being that we're still usually cheaper than doctors per hour where in Canada we just don't see most medical bills in a publicly funded medical system), but the root cause of these titanic legal expenses is "conflict."

Take away the conflict, and you can each hire a lawyer for $2500 a piece to draw up a mutually acceptable separation agreement all to be concluded within about 60 days. Or, you can each spend 100 times that amount on lawyers, dragging your case out over 60 months, resulting in a dissipation of all family assets, and a judgment that please no one.

The saddest part of these stories is that where one party wants to be reasonable, and the other doesn't, you can still wind up with the endless high cost result. But I don't believe that even the angriest of unreasonable parties ever sets out from the start to blow $150,000 plus on legal fees just to get revenge. From my discussions with lots of client, no one ever believes it possible that their case could come to cost to much and take so long to resolve. They're labouring under the fatal "it couldn't happen to me, I have a just cause" mistake. The take away from today's post is that where family law is concerned, it can and will happen to you if you can't get over the conflict hump. Trust me, I'm a lawyer, I know.

Friday, February 6, 2015


Credit: graphjam.com

Over half my clients find and hire me through the Internet. We build good working relationships together, often without ever meeting each other, or only meeting when a case is ready to go to a court hearing. 

Because lawyers are at the end of the day just bundles of words, spoken or written, we're a profession ideally suited to the Internet. We don't even need to rely on high bandwidth video streams (though they can be helpful), and instead can just use VOIP voice communications, email, file upload servers and client portals to deliver the services our clients need. 

Although courtrooms and tribunal hearing rooms in Canada remain relatively in-person fora, I still find that Barristers (lawyers who advocate for clients before a court or tribunal) can very effectively represent clients utilizing the Internet since up to 90 percent of courtroom advocacy is really advance fact finding, case analysis, research, written submission preparation, pleadings and affidavit drafting, client communication, opposing counsel negotiation, and court pre-trial case management. Thus when I show up for a hearing anywhere in Canada, I'm superbly prepared because of that instantaneous client and court relationship and knowledge base that was built during the many months prior to the hearing. 

It's true that for Barristers hired through the Internet you might be looking at paying for some long distance travel time and costs, but those costs will almost always be very modest compared to the overall price tag of your case, you may be able to retain a Barrister through the Internet with much more specialized expertise than is available with local counsel, and even the rate charged by the Barrister hired through the Internet may be less than for local counsel due perhaps to lower overhead costs. So don't think you'll pay more by hiring someone from a great distance. You just need to make sure that person can legally practice law where you are located, and is going to bring to the table the levels of skills and commitment that you require for your case.

Even though I refer to myself as a "Barrister," a lot of my best work may be focused on preventing clients' cases from going to court. I do this through negotiations with government or opposing parties such as the Canada Revenue Agency (for tax clients), or the Attorney General (for criminal defence clients), or various federal or provincial government departments (for Aboriginal and environmental clients), or professional regulatory bodies (for professional discipline clients), or counsel representing opposing business or private parties (for commercial, civil and small claims litigation clients). That kind of work doesn't require any travel at all and is superbly suited to the Internet where strong, continuous relationships can be built. There is sometimes no substitute to a final face to face meeting to finally settle a matter, but the Internet avoids all those preliminary abortive meetings that can waste time and money.

Questions to Ask Yourself When Evaluating a Lawyer you Find on the Internet

Evaluating lawyers prior to making a buying decision is always tricky, as unlike a new car you can't read much in the way of online reviews (even if you find a couple, you might not want to trust them unless you finds a very large sample group like for hotels or restaurants on Tripadvisor), and you can't judge just by looking at the lawyer. But things you can ask yourself and test out are:

(1) what kind of detailed information does the lawyer provide on the Internet about his experience?

(2) what kind of free information does the lawyer offer the public on the Internet about the area of law I am concerned with, and is that information understandable?

(3) does it look like the lawyer is a good communicator from what he has written on the Internet (since law is mostly about clear communication)?

(4) how quickly does the lawyer respond to an initial inquiry made to him over the Internet?

(5) how quickly does the lawyer respond to follow up inquiries I might have?

(6) is the lawyer willing to have a brief without obligation telephone or Skype conversation with me so that I can better evaluate if we might be a good fit?

(7) is the lawyer willing to conduct a fixed-priced detailed consultation with me to provide me his opinion on the prospects of and proposed strategy for my case? 

Managing Your Relationship with Your Lawyer Through the Internet

After you've made your lawyer buying decision, the Internet is likewise the ideal means for client-lawyer relationship management. The leading source of client complaints about lawyers (there are stats on this) is lack of communication. Meaning, the lawyer might be working hard on your case, but if he is ignoring your inquiries about case progress, you quite understandably aren't going to be happy. Leaving one telephone message after another without getting any information is completely unacceptable for a professional practice, but can happen if the lawyer is spending 8 hours a day in court, 5 hours a day preparing for court the next day, and a couple of extra hours a day managing his business. 

With the Internet, you can pose client questions directly to the lawyer by email or through the firm's client portal, and the lawyer may be able to provide you an answer within minutes (rather than hours or days), sometimes while sitting in court when voice communications are impossible. The Internet also is a great enabler for clients providing their lawyers instantaneously with all relevant facts and documents in a case, without the risk of multiple time wasting and high cost meetings where the lawyer demands documents you didn't know you needed to bring, the lawyer winds up needing to keep original document you would prefer to hold onto, or the high volume of documents in the case can't be physically delivered to the lawyer in a timely fashion. 

Speaking as Canada's former Director of E-Business Development, where I worked with the UN, OECD and APEC on such issues, I can say with some confidence that in the future all legal service delivery will have an Internet component. But I can't predict when that will happen. However, for those comfortable with being part of that legal service delivery resolution right now, hiring and managing a lawyer through the Internet offers many advantages of improved client communication, improved quality and specialization of service, and possibly even lower cost.