Suing on Principle (Only the Lawyers Win)

Before you proceed with or defending a lawsuit based upon principle, you must ask yourself: is this a good idea?  Most of the time, the answer will be no.

Throughout my career, clients have instructed me to proceeded with litigation based on principle, and not upon monetary damages. 

For example, I had a client once sue a party over a $500.00 invoice because of they were upset with the defendant, then only to be enraged that (shocker!) their legal fees were in excess of that AND they ultimately ended up settling for less than what we claimed.

Parties who experience the time, uncertainty of ligation and most importantly the expense of suing, usually find out quick that it is less compelling to do sue someone because they’re upset over the situation.

Is it really that important to go through litigation for a Judge to potentially say you’re right?

A person who sues or defends a law suit on principle (see client above) are usually acting emotionally.  People who are emotional do not always think reasonably and make decisions they may not necessarily make normally.  This can be a big problem for them.

There is no place in litigation for emotions and your emotions can end up costing you a lot more than hurt feelings.  It can really hurt your pocketbook with no return.

Murray Brown, Licensed Paralegal

mbrown@andriessen.ca

What I’m looking for in a Bencher

If you’re not an Ontario Lawyer, then this Blog is not for you. This is about our upcoming Bencher Election for the Law Society of Ontario. Benchers are elected representatives of Ontario Lawyers and regulate the conduct of Lawyers in Ontario.

I’m looking for a Bencher who will not hit me with a surprise agenda. I didn’t appreciate the vote from LSUC to LSO coming out of the blue and don’t want that to happen again.

I’m looking for a Bencher who supports the LPP. It’s a better, more consistent lawyer who emerges from the LPP rather than from Articling.

I’m looking for a Bencher who believes there is a difference between paralegals (who I value) and lawyers and that allowing paralegals to practice in complicated areas of Family Law, without a law degree is not access to justice, it’s access to the perception of justice.

I’m looking for a Bencher who is willing to tackle the complicated issue of too many lawyers in Ontario and not enough jobs for those lawyers.

I’m looking for a Bencher who is willing to advance an advertising campaign, aimed at High School Students warning them of the job shortage and possible massive student loan debt they’ll incur to become lawyers.

Are you that Bencher? If so, let me know!

Inga B. Andriessen, JD

iandriessen@andriessen.ca

Always be Honest with Your Lawyer or Paralegal

It is very important that you are always honest with your lawyer or paralegal about the issues in a court case.  Even if it makes puts you in a bad light.  Full disclosure is key in a successful client/representative relationship.

If you are not honest with your legal representative, they can’t help you.  Not only that, failing to tell  the truth will only hurt you and cost you money in the long run.

It may also cause you to lose your legal representative if it is serious enough, and you it might have difficulty finding someone else to help you with your case.

If you don’t tell the truth, not only does it weaken your case, it makes your representative look bad.  Judges don’t remember a party to a litigation, but they sure do remember a lawyer or paralegal.  The reputation of a lawyer or paralegal is very important, especially when you appear before the same Judges or Deputy Judges over and over like we do.

I was recently caught off guard when I met with a client to draft a Defence, and the information they provided was incorrect, I think because they did not want to admit any wrongdoing.  I don’t think that they lied intentionally, but I was sure caught off guard when the plaintiff approached me with facts and evidence that contradicted what our client said, and what we plead in our Defence.

Thankfully, I was able to get it settled and all is well again.

Moral of this blog: always tell the truth to your representative no matter what.

Murray Brown, Licensed Paralegal

mbrown@andriessen.ca

Employment Law – Check with us first

I always find it funny the cycles that our law firm goes through.  It could be a few weeks, a few months, or even sometimes a year before we deal with a certain type of law.  Whether it be Construction Liens, registering a Certificate of Pending Litigation onto a property, or a will drafting, we always have those periods of time where that’s all it seems to be. 

The one thing that does seem to be consistent is employment issues.  I think that’s because we are the full-service business law firm to our clients. We assist in incorporating, to drafting employment contract, and even employee handbooks. 

We always impress upon our clients to reach out to our offices before they terminate employees.  Even then, you’d be surprised when we got those emails from our clients stating that they terminated an employee without consulting our offices, and then having to respond to a lawyer for failure to provide the right amount of notice, or pay in lieu of notice.

Scenario:

The ask from the client: We terminated an employee without cause, they weren’t performing as we expected, and we have a letter from their lawyer saying we owe them $2,000.00.  What do we do?

Question.  Did they sign the contract that we drafted for you? 

Response 1.  Contract?  Were they supposed to sign the contract? 

Response 2. Yes they did, it was signed a week after they started.

Response 3. Yes, and there was a change made to the amount of notice required to be provided. 

None of these are the responses that we want to hear. 

There are so many different moving parts when it comes to hiring and terminating employees and for that reason, we carefully draft the employment contracts for our clients.   

Employment law is evolving almost on a daily basis, and we strive to keep on top of all the leading cases law.  Before you go ahead and make those changes to the agreements, or before terminating, you would be best served to reach out Inga B. Andriessen before you do anything that could cost you in the future.

Why not start off 2019 right?

Christine Allan, Law Clerk

callan@andriessen.ca

The Good Lawyer (Part 4) – Judgment

Welcome back to our segment of “The Good Lawyer.” One resolution everyone should be making for 2019 is to not settle for less than what you deserve – and since we are a law firm, of course we mean in terms of your legal services!

We’ve already discussed the importance of communication, resourcefulness, and responsiveness in a lawyer but let’s turn our attention this week to… JUDGMENT! When it comes to this trait, as a lawyer, you either got it or you don’t!

You hire a lawyer to advise you when it comes to making some tough calls. These calls can occur on a moment’s notice, so you need to make sure your lawyer is up to the task. Being able to draw reasonable and logical conclusions quickly from (sometimes) limited information, really helps. You can probably see then how decisiveness in a lawyer would be very important – lawyers who sit on the fence are rarely effective counsel. Don’t worry though, here at Andriessen & Associates, we do everything in our power to shove them off that fence.

Good judgment in a lawyer also means being able to accurately advise you when it comes to your likelihood of success. We see opposing counsel show up to court or examinations for discovery ill-prepared all the time. They put on blinders and see only the merits of their own case. A good lawyer uses his or her good judgment to advise you on the best course of action – even if that means settling before trial or not even pursing an action any further. A good lawyer has the good judgment not waste your money on a pointless lawsuit.        

Hmm…new year, new lawyer?

Disclaimer: We, at Andriessen & Associates, have never and will never physically shove any opposing counsel off a fence. We swear.

Robin K. Mann, Associate Lawyer

rmann@andriessen.ca

Balancing the Balance

I love the first couple of weeks after January 1 – it is the time of year you get to see which resolutions are sticking for those who made them.   Many lawyers I know were resolving to have work/life balance for 2019 and finding it hard to keep.

I will not pretend to have mastered work/life balance and will even say anyone who claims they have is a liar.  I do however, have a few suggestions on how to work towards a balance as a lawyer:

1.  Recognize our ethical obligations put our clients first.  This may mean that you have to take on fewer clients in order to achieve balance and it may mean you need to narrow your area of practice so that you are at maximum competency without the need to keep up to date on all areas of law.

2. Use your clerks and assistants.  Many young lawyers want to do all their own typing  and leave their support staff bored and wanting to do work. Lawyers, we are not better at typing, binding and copying than our staff and most Law Clerks are quicker at searching government databases than we are.

3. Create a routine. The only “right” routine is one you will stick to.  I personally now have one where I get up early, work at my home office, workout and then head into the office, discoveries or court.  They key to sticking to my routine?  Having a coffee maker ready to go in my home office.  

4. Recognize you are not always going to be in balance and that is ok.  If you throw in the towel because you didn’t achieve perfection you are undoing all the good steps you took to that high point.  

Cheers to 2019 and continuing to aim for work/life balance!

Inga B. Andriessen JD

iandriessen@andriessen.ca

Residential Landlords, This One’s For You!

There have been many stories from tenants who claim that their landlords terminated their tenancies, claiming personal use, only to turn around and re-rent it for a much higher rate of rent.

In 2017, the rules around a Landlord’s ability to terminate a tenancy based upon personal use changed, making it a little more difficult to do so, and penalizes a landlord who doesn’t act in good faith.

This was done in an attempt to prevent landlords from evicting tenants paying lower rent amounts, then turning around to re-rent for a much higher amount.

A Landlord can only bring an Application to evict a tenant for personal use for themselves, an immediate family member or an individual who is providing personal care services to you or a family member.

An Affidavit must be sworn by the individual who wants to move into the unit, and it must state that they in good faith require the unit for their own use for at least a year.

Additionally, the Landlord must give the tenant one-months’ rent compensation as a result of the eviction or offer the tenant a comparable unit, if available.

So, what happens if a Landlord doesn’t act in good faith, and re-rents that unit within the year?  They’re looking at a Bad Faith Tenant Application, and they’re facing a fine of up to $25,000.00.

An Application to evict a tenant for personal use is not meant to be used to get rid of a tenant for another other reason.  Act in bad faith, and you can suffer some really stiff penalties.

Lately, I’ve been helping a lot of Residential Landlords properly evict tenants to use the premises for personal use.  If you have questions, please feel free to reach out to me.

Murray Brown, Licensed Paralegal

mbrown@andriessen.ca

The Good Lawyer (Part 3)

I know it’s been a few weeks (during which time we’ve eaten all of our Halloween candy and done a lot of black Friday shopping) but here we are again for our third installment of “The Good Lawyer.”

During our previous discussions on what makes for a good lawyer, we discussed communication and resourcefulness.

Today we will be talking about ….are you ready for it?…. RESPONSIVENESS!

This skill is surprisingly one that not enough lawyers exercise. If your lawyer isn’t responding to your emails or calling you back within a couple of days (in the latest), you shouldn’t stand for it. Many people think that unresponsiveness from lawyers is the price you pay for a good busy lawyer, but that’s simply not the case.

A good lawyer is someone who responds to clients, opposing counsel, legal assistants, and anyone else involved in a case in a timely manner. Your lawyer should be listening to you, you have a lot more knowledge about your case than you realize, and they could be missing out on some vital information. So, if you have a question or some information you believe your lawyer should know, reach out and be heard.

Our motto at Andriessen & Associates regarding responsiveness is quite simple really. Unlike a certain Carly Rae Jepsen, if we say “here’s our number” – just call if you need us, no “maybe”!

Stay tuned for Part 4 of our segment on “The Good Lawyer.”

Robin K. Mann, Associate Lawyer

rmann@andriessen.ca

It’s Never a Good Idea to Drag Your Heels

It always surprised me when a debtor would contact our offices after we garnished their wages, or their bank account.  I never understood why they would ignore the claim that we served.  Did they think we were kidding?  We are a law firm, we don’t believe in jokes.  Just kidding, we do, but not when it comes to our clients’ matters.

I’ve written before about not ignoring your lawyer when it comes to corporate record keeping, but what about litigation matters?  It’s definitely not a good idea to do that either.

Our law firm is known to be tough, and once we have the momentum on a matter, we need to keep that up.  When a claim is not defended, we note the defendant in default right away, and proceed as quickly as we can to get Judgment.

When the matter has been defended, the next step in litigation is Discovery and the exchange of Affidavit of Documents.  In litigation matters, a Discovery Plan needs to be agreed to between the parties.  Again, this is something we move quickly on.   We don’t let the other side drag their heels.  We pick realistic dates in which to complete the necessary steps to get the matter to the Pre-Trial Conference.  The Discovery process is a very important process and can take months to complete, which is why we want to get those dates “written in stone” so to speak.  That way, if a party doesn’t comply, we have a basis to make them comply.

When sending those documents for you to review, don’t sit on it.  The quicker we get through this Discovery Process, the quicker we can get to the end of litigation, whether it be a settlement at the Pre-Trial Conference, or Judgment at Trial.

We always have your best interest at heart, and we make sure the other side knows that.

Christine Allan, Law Clerk

calland@andriessen.ca

Access to Justice – watering down the lawyer relationship is not the answer.

Warning – rant ahead.  Worse, it’s a rant that only lawyers probably care about.  Read on at your own peril.

There are many days, well frankly all of them, that I’m glad I refused to take Family Law in law school so I couldn’t practice it.  I admire my many friends who do practice Family Law.  These lawyers deal with emotional clients in high crisis situations.  It’s a tough area of law.  These days, our Law Society regulator is making it tougher.

Many people in family law situations have decided they would rather spend their money upgrading their car, wardrobe, appearance to find a new “love”, rather than money on a lawyer to deal with dividing their assets and who gets to raise their children.  Priorities people ?

This has resulted in many people trying to be their own lawyer in family law.  This slows down the Courts appearances and leads to a lot of frustration by everyone in the system.

Our Law Society has decided that a new “great way” to resolve this is to have non-lawyers and non-paralegals take a very short course (maybe a weekend) and then they can be a licensed “other” category for providing family law services.

Hey.  Regulator.  How about instead of watering down the quality of legal advice being provided to a person in crisis, we instead address the fact that people are choosing to spend money on things other than lawyers.

In business law, we often encounter people who think they don’t need a lawyer to create a contract, incorporate, terminate an employee, etc.    Those are people who end up paying more to have the issues fixed by lawyers after everything has gone wrong.

Lawyers need to start explaining to their Regulator and the public that we have value.  Stop with the stereotypes that we’re out there to take people’s money and not deliver value.  Remind people that lawyers guide very important life and business choices and that spending money on legal advice early on in a problem will reduce the fees overall.

Obviously, in non-business, low income situations, the lawyers will have to be legal aid funded.  However, it’s time to stop pretending that the family law litigant, driving a BMW, sipping 5 lattes a day and wearing an Armani suit, cannot afford to use a lawyer.

Lawyers are not leeches.  Lawyers are not vultures.  Lawyers provide value.  Lawyers protect rights.  Lawyers should be encouraged to be used

Our Regulator should not water down the requirements for a very important area of law, because it wants to increase “access to justice”.  What this proposal is doing is increasing access to the “idea” of justice.

Come on lawyers – let’s re-market ourselves – we have value to the public.

Inga B. Andriessen, JD

iandriessen@andriessen.ca