Why are legal fees so high?
Why do matters that seem straightforward, end up taking weeks and months and years to resolve.
There are many reasons. But, today, I’ll touch on a couple pet peeves that very seldom get discussed in an open and honest way.
First problem – Cautious Jurists:
Well.
This week, a fellow lawyer who knows of my frustration with access to justice contacted me with a rant.
Seems he obtained a Master’s Order directing the Defendant to provide certain information within a specified time frame.
He served the Defendant.
The Defendant didn’t do what he was committed to do, by Order.
So – counsel did what one would expect, he brought application to have the Defendant cited in contempt for failure to comply with the Order and to seek directions arising from that contempt.
Application was filed.
The matter came before the presiding Justice in Chambers – adding insult to injury, it was a Calgary action, so he was required to hire an agent to appear on his behalf – this lawyer being from Lethbridge.
The matter came before the Justice, however, while no materials were filed by the Defendant taking issue with the evidence of the Plaintiff, the Justice declined to make an Order. The Justice, in fact, advised counsel that to make a finding of contempt, the evidence would require proof that the Defendant had “intentionally” failed to comply with the Order – and as a result, made no order at all, and adjourned the matter sine die (indefinitely) to allow the Plaintiff to obtain better evidence of the Defendant’s intent.
So. There.
Bill to client for application.
Another bill coming for, yet, another application.
And more time and more judicial and administrative resources being expended to accommodate a Justice who, it appears, was making an interesting legal point, or perhaps, being careful to assure that justice was extended in a “perfect” fashion.
Cost to the client and the system be damned.
Is this “normal” or “typical”?
Well. In my 32 years, I wouldn’t say so, but neither would I say it is unusual. And this, in my humble opinion, is a great part of the growing cost of litigation. Too much caution, and too little practical consideration of the bigger picture. The cost of “perfect” (that term is used VERY loosely) justice.
To be certain, the “law” matters, and the cause of expediency does not warrant ignoring rules of evidence and procedure which are safeguards to assure proper consideration of the competing interests of the parties before the Court. But, while that is so, at the same time, Courts need to be cognizant that there is no such thing as “perfect” justice, and it’s always going to be flawed, because sometimes the cost of marshaling all evidence and all relevant opinions is just too difficult, or expensive – and a Court has to do it’s best with what it has before it.
In other words, consider pragmatism and cost limitations in fashioning outcomes.
Because, for a growing majority of Canadians, if we don’t they’ll have no justice at all.
Second Problem: Sloppy and Unethical Lawyers
Ok. So I’ve dumped on Judges.
Now, time to look in the mirror. To my profession – the lawyers.
You get an Order. It is required that such an Order be drafted by one lawyer and circulated to the other lawyer or lawyers present in Court. They endorse the Order if they agree that it is reflective of the directions of the Court.
No problem, right?
I wish.
This past month I encountered a difficult case where a Judge made a certain direction and when I drafted the Order, the other lawyers refused to sign it, suggesting it wasn’t reflective of the direction.
So – then – I obtain a full transcript fo the proceedings to my client’s expense – and resubmit the Order with the transcript to fellow lawyers – who ignore, in my opinion, the Judge’s direction and still refuse to sign it.
Well.
I file an application to the Judge to review the order and at the same time, seek directions from the court in a separate application, including a claim for costs for having to go to this trouble.
The result:
- The Good: the original judge signs my Order “consistent with the transcript
- The Bad: no costs.
My clients are not wealthy. The cost for me to argue about the Order and to finally seek to enter the order, and seek further directions was a real cost to my client – for which the Court declined an immediate remedy.
Now – I’ve already complained about Judges, so I won’t say more about the failure to make a cost award. However, in my opinion, this sort of conduct of counsel refusing to endorse properly drafted orders is much more endemic than we would like to acknowledge.
This point was affirmed during a recent Law Society matter where several complaints were reviewed where orders were refused to be endorsed for no particularly good reason – other than what I would all sloth or gamesmanship. And during those considerations, a fellow panel member from Edmonton shared her own opinion which affirmed my own experience of family lawyers refusing to sign orders because “their client instructed them not to”, or for no particularly good reason at all other than payback for some perceived slight or some effort to extort some other benefit in exchange for them doing what they were legally and ethically bound to do anyway.
Sadly, in the area of practice where access to justice is most acute, being family law, the extent of sloppy and even unethical behavior where counsel would seek to be difficult out of a battle of egos, or to extort some benefit for their client in order for them to do what they were ethically bound to do – is relatively common.
And all this costs clients money.
Lots of it.
Too often, as a Bencher with the Law Society, have I reviewed disciplinary files where family lawyers were locked into some ridiculous battle – which had little to do with the merits of the matter, and everything to do with a battle of tender egos.
Lawyers refusing to comply with disclosure requests, or actively lying about availability of disclosure.
Lawyers refusing to respond to correspondence from other lawyers or their own clients.
Lawyers arguing pointless positions in Court.
Lawyers taking “deals” and turning them into “battles” where the clients were relatively content.
Now – don’t get me wrong. Most family lawyers are, in fact, ethical and committed to find timely and cost-effective solutions for their clients – and it’s a very difficult and stressful area of practice. But those who are not honorable, are so pernicious and numerous, that they infect the process in a manner which serves, again, to drive up client costs and waste system resources – in fashion that the system cannot or will not address effectively, whether it is through their regulator or through the Judicial system itself.
And when you are on the other end of these weasels… well, even the decent and ethical lawyer watches their clients’ bills rise accordingly.
Or they advise their client to make a less provident bargain, because the price to make the weasel’s client accountable is simply not worth the benefit to be gained.
Of course, by that point, even the weasel’s client is harmed because THEIR fees have grown as well, for no particularly good reason.
So.
There it is. A little “inside” info on part of what is REALLY going on to drive up costs, but which isn’t often openly discussed.
And if you think having a “weasel” as your lawyer is a good plan… think again. Whatever you think you’ve gained, you’ve probably lost in increased legal fees and increased acrimony with your estranged spouse.
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