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.


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