Hiring a lawyer can be traumatic—better know what you’re in for

You have left a certain amount of money as a retainer; will you ever see any of it again? To what use will it be put? You know you will have to pay for the time the lawyer uses to write letters or make phone calls, but there was also talk of “procedures” and “going to court.”

Just because you disagree over something with your former spouse, your neighbour, your business associate or your sibling does not mean you want to face them in a court of law. And why must it cost so much?

The lawyer’s mandate. You and your attorney must discuss exactly what it is you expect from him. This should be put in a written document signed by both you and the lawyer. His duties and your expectations must jibe. You have a right to know what your chances are of obtaining the result you want.

Establishing lawyer’s fees. It is important that you be aware of your lawyer’s fees. In some cases, this might be based on an hourly rate, in others on a percentage of the amount collected or the amount involved, or on the particular job to be done, such as the preparation of a document, or a combination of the above. These fees are not to be confused with court costs, which are contained in a tariff set up by the minister of justice and can be granted to the party winning a court judgment. It will probably be necessary to provide a retainer to the lawyer and the amount can be substantial. Again, it is very important that the fees, your expectations and what the lawyer has agreed to do be set out in writing.

The mis-en-demeure. This is an initial letter written by the attorney claiming a sum of money or stating a complaint or demanding performance of some obligation. It is usually written “without prejudice,” which means later changes to any of the facts or demands it contains cannot be held against you. It gives the recipient a specific delay to reply.

Reply Received. Experience shows that a reply does not usually say, “You are right, I will pay you (or do what you ask) immediately.” However, it may offer some kind of compromise. You then enter into a negotiation phase between attorneys for which your lawyer will usually charge on a time basis. This charge should have been established at the time of the initial meeting and set out in writing.

No Reply, Refusal or unsuccessful negotiations. You have a choice: either you drop your demand or you commence legal proceedings, that is, you go to court. If you drop your demand, your attorney will invoice you according to your agreement with him.

Going to court. It’s expensive! Quebec follows a Code of Civil Procedure containing more than 1,000 separate articles. Even though only some will be pertinent to your particular case, your lawyer must be aware of which will apply and act accordingly. He will have to prepare written proceedings in the form prescribed by the Code of Procedure. These proceedings together with exhibits substantiating the facts alleged must be registered in the courthouse, where they are stamped. The cost of the stamp varies with the amount at issue and ranges from about $100 to more than $800.

For example, the stamp on a divorce motion costs $170; the stamp on a proceeding claiming $10,000 would cost an individual $375 and a company $425. The proceedings must then be served (delivered) by bailiff on all interested parties, thereby incurring bailiff charges, which vary with the distance traveled.

Legal proceedings must be detailed and state every fact that will have to be proved to the satisfaction of a judge at trial. In some cases, depending on the issues involved and what you are demanding, you may have to swear to and sign an affidavit.

If the opposing side hires an attorney you can be examined on the contents of your affidavit. Such examination takes place in the presence of an official court stenographer at the office of one of the attorneys or in a room in the courthouse. Stenography charges are by the line and can run to several hundred dollars. The opposing side may ask for additional details or documents.

These procedures take time and when they are contested it is necessary to go before a judge in order to be heard. The waiting time to be heard can be several hours and you will be paying for your attorney’s time.

When a case is contested in writing, there are several documents that are required by the Code of Procedure, ending in a joint declaration by the parties detailing how many witnesses they intend to produce, what they will attest to and how long it will take. A few months later, the lawyers are summoned to court and, depending on the predicted length of the hearing, a trial date will be fixed. The date may be anywhere from a couple of months to well over a year.

Sometimes the parties will opt to try a settlement conference presided over by a judge. Here the parties can meet in the presence of a judge with or without their attorneys. The judge sets the rules, which are generally more flexible and less formal than those followed during a regular trial.

I hope the above helps explain why the pursuit of justice costs so much and takes so much time. The Code of Procedure is in the process of being amended to include greater emphasis on mediation procedures in the hope that the delays and expense of court cases can be reduced.

1 Comment on "Hiring a lawyer can be traumatic—better know what you’re in for"

  1. Afetr having been through several civil court proceedings in my time. the only real winner is the lawyer/s. The process is too complicated and weighs in favour of the system rather than individuals. DHL

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