• KPA Lawyers

Can lawyers actually get in the way of resolving legal disputes?


It might sound a little strange that a law firm would publish a video about how lawyers can actually get in the way of resolving legal disputes, but we hope that the information in this video will help Canadians understand some general information about the financial aspects of legal disputes.


To understand how a lawyer can potentially help or hurt your best interests, it’s important to understand what a lawyer actually does.


Consider the following simple analogy:


Let’s say you sign up for an arm-wrestling contest, and you’re competing for a prize of $10,000. The only thing that stands between you and the prize is one final opponent who looks like he’s about the same size and strength as yourself. You figure that your odds of winning are about fifty-fifty.


However, you decide to read the contest rules, and you notice that you can team up with a partner and split the prize money. Rather than risk losing, and winning no money at all, you decide to team up with a much stronger competitor, and let your partner compete in the final round instead of doing it yourself. Basically, your odds of winning would be significantly increased, even if the payoff is only half the amount of the prize money.


Hiring a lawyer is a little bit like teaming up with a stronger partner. They generally know a lot more about the processes and procedures of the justice system, and their knowledge of the law can help you win cases that you might not be able to handle on your own.


However, what happens if the other side does the same thing?


Think about the arm-wrestling contest. If both competitors decided to team up with tougher and stronger partners, then the playing field becomes equal again, just as it was before either competitor decided to team up with anyone.


However, this illustration doesn’t cover one major difference between our art-wrestling contest example, and the way lawyers work.


That major difference is that lawyers typically charge by the hour for their services. In other words, the longer your case continues, and the more issues that the lawyers can argue about, the more money your lawyer can charge you. On the other hand, if the case is resolved and a mutually acceptable settlement can be reached, then the lawyer’s job generally comes to an end, and the lawyer stops making money from your case.

Of course, there are many ethical rules that lawyers must follow, and it’s not appropriate for a lawyer to allow a case to drag on forever in order to make more money for themselves.


Contingency Fees


Moreover, lawyers don’t always charge by the hour for some types of cases. For example, if you’re involved in a car accident, your personal injury lawyer will usually charge you a portion of whatever money they can win for you. If they can’t win any money, then they don’t get paid. This is called a “Contingency Fee”, and many people prefer to pay their lawyers in this way because it’s obviously a much more affordable way to access a lawyer’s services.


Keep in mind, however, that lawyers in Ontario are not legally permitted to charge a contingency fee for criminal law and family law cases. Furthermore, even this type of fee arrangement has its own problems.


You might think that your lawyer will be more motivated to win as much money as possible because what they will be paid is in proportion to how much money they win. Although this sounds great in theory, this is not how things always work out.


The practice of law is a business, and like any other type of business, companies want to maximize revenue while minimizing time and expenses. For lawyers, this can mean that a lawyer might be tempted to minimize the amount of time and attention that a case receives, and they might also be tempted to encourage you to accept a settlement offer that is less than you deserve, so they can get paid sooner.


Lawsuits also involve financial costs, such as paying for court fees, expert witnesses, medical reports, and more. If the lawyer is providing services under a contingency fee, it means that the lawyer is the person paying for all of these expenses. This financial pressure might make it difficult for the lawyer to continue taking on expenses that he or she cannot afford.


All of these various business factors might result in your lawyer handling the case in a way that you aren’t okay with.


This is hopefully not true for most lawyers, and there are many reasons why a specific case might result in winning a small amount of money, or perhaps no money at all. It is certainly not always the lawyer’s fault and, in fact, the result of a case often depends a lot on things that are outside the lawyer’s control, such as the nature of the evidence, the availability of witnesses, and the judge who decides the case.


Adversarial System


However, the reality of the justice system in many countries, including Canada, is that the system is based on what lawyers call an “Adversarial System”. In other words, legal disputes are dealt with in the justice system by putting two or more opposing parties against each other in a contest, a little bit like the arm-wrestling contest we mentioned earlier.


This system unfortunately has the potential to make lawyers more preoccupied with fighting with each other about every little detail in their cases, instead of working collaboratively to reach a reasonable solution. In fact, some lawyers might feel that they must behave in this way, because they are worried about appearing like they did not fight aggressively enough, or a malpractice lawsuit against them.


When you’re choosing a lawyer, it’s important not to look for the lawyer who appears to be the most aggressive. Most people are better off choosing a lawyer who is willing and able to explore creative solutions to their legal disputes, while minimizing time and expense, if at all possible.


Fortunately, many lawyers in Ontario properly encourage their clients to consider out-of-court options to settle their cases. These lawyers help people find cost-effective and expeditious options to their legal disputes. These other options are often called “Alternative Dispute Resolution”, or ADR for short.


Mediation


One common type of ADR is called mediation.


Mediation is type of meeting between people involved in court cases, including their lawyers, and a professional called a “mediator”. Although mediation is optional in most cities in Ontario, it is mandatory in the City of Ottawa, the City of Toronto and the County of Essex. Everything that is discussed during mediation is confidential, and the conversation is not recorded. The goal of mediation is to reduce financial costs and delays in court cases in Ontario, and facilitate the early and fair resolution of disputes.


Many people involved in civil lawsuits find that mediation is a preferable solution to their conflicts, because it is less expensive than continuing the Court process, and there is more control over the outcome of the mediation session. In other words, if people can’t agree to resolve their dispute through mediation, then the case will need to go to trial, where a Judge will make a decision about what will happen in the case, and the decision may not be entirely satisfactory to anyone involved in the court case.


In family court, where people are often dealing with sensitive issues like separation, divorce, custody and support payments, many lawyers dedicate their careers to helping people resolve their cases outside of family court. This is called “Collaborative Family Law”. For more information about collaborative family law, you can watch our other video, entitled, “What is Collaborative Family Law in Ontario?


Please note that this article is intended for general illustrative purposes only. This article is not intended as legal advice, and we strongly recommend consulting a qualified lawyer before making any decisions that could affect your legal rights. There’s a lot that you can do to help keep your legal costs in an affordable range, especially if you work closely with your lawyer to settle and resolve your legal disputes out-of-court.


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