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

Yes Virginia, You Do need to Prove your Damages

Our firm recently dealt with a Small Claims Court matter where our client was sued for alleged damages, which the amount sought was an amount that was not supported by the other party’s evidence.

Over time, the claim was amended, the amount increased, but was still not supported by the party’s evidence.

The lawyer representing other party wanted to settle the matter, which our client was open to, but the other party wanted to settle for an amount that was higher than what was claimed and expected to do so without providing supporting documentation to substantiate the amount.

The lawyer went as far to say that they did not want to deal with a large paper trail just to end up settling the matter.  The lawyer had to be reminded that if they continued with the litigation, they would be obligated to substantiate the amount of their claim with evidence in Court, and not based upon what their client says their damages are.  Settlements should be no different.

It is never a good idea to take the word of an opposing party who claims their damages are one amount, especially when their evidence supports another.  It is also a red flag when someone does not want to provide evidence to prove their damages, which technically, under the Rules of the Small Claims Court,  should have been provided when they started their lawsuit.

Whenever you start a lawsuit, make sure you can prove the amount you are claiming with real evidence, or you may not get the judgment you want, or a judgment at all, or even a settlement you can live with.

Murray Brown, Licensed Paralegal

mbrown@andriessen.ca

 

Working Both Sides of Business Law – Litigation & Transactions

When I started practicing law over 26 years ago, I was a purely Business Law litigator.  About three years into my career I became tired of litigating on poorly drafted materials, so I began adding “the boring desk work” to my area of practice and have not looked back since.

The benefit of having a lawyer who handles both sides of Business is law is I am stronger in both areas.  When in Court, I know what documents should have been produced in a sale purchase, but are missing, when drafting closing documents on a sale purchase, I know what Courts will look for in enforcing it.

While both litigating and handling transactions makes a Business Lawyer stronger, the same is not true for those practicing “door law” in the GTA in 2018.  “Door law” means whatever the client needs, you will do.  That is dangerous: criminal law, family law, real estate and of course, business law and all very niche areas.   Lawyers in the GTA pick an area and focus on it: if you’re not focused, you’re going to miss something.

As a new lawyer starting out in 2018, it can be intimidating to turn away work, however, it’s important to focus on an area of law and if you do, your practice will grow.

As a client, you need to be sure the law firm you’re retaining can meet your needs and has experience doing the type of work you’re asking them to do.  The added benefit to the client is that a firm that does one type of work will generally charge less as they’ve done this before and are not charging you to learn how to do something.

As I’ve said many times before: I’m Inga B. Andriessen and I’m a Business Lawyer.  That’s it.  That’s all.  Well, except in my “real life” when I’m a scuba diver, skier, hiker, mountain biker, triathlete, runner, kayaker ….  I’m running out of space here.

Inga B. Andriessen JD

iandriessen@andriessen.ca

What did your lawyer just say?

Do you understand what your lawyer just said?  No?  Can your lawyer explain to you those complicated terms in the contract they just drafted for you?  No?

Well, if you can’t understand your lawyer and your lawyer can’t explain to you what they mean, then I think there is a huge problem.  Maybe the “lawyer talk” is too complicated and maybe only lawyers are the ones who should understand them.  Definitely not:  I think we all deserve to understand.

Our firm believes in understanding what you are signing, and if you can’t understand what we have drafted for you, then we need to fix our drafting policies.

Ever heard of K.I.S.S.”?  I don’t mean that awesome band from the 70’s (oops, how old am I anyways), but the acronym for “Keep It Simple Stupid”.   I remember, especially in college, professors reminding us all the time to K.I.S.S.  I find myself muttering it under my breath when I’m drafting and reviewing just to remind myself.   In our office, the drafting is done so that everyone can understand what it is that is being said.  We strive for plain English in everything that we do.  Of course, there are those legal terms that we just can’t get away from, and those standard terms in contracts that must be there, but for the most part, they should be understood.

So if you have to repeatedly ask your lawyer what it is that is meant by something, maybe they need to re-think their drafting practices.

Christine Allan, Law Clerk

callan@andriessen.ca

 

Nothing is More Terrifying Than Being Left in the Lurch

No, we don’t mean the 6 ft 9-inch, awkward, gloomy butler from the Addams Family. We are talking about being left in a financial bind when your commercial tenant, or someone you do business with, decides they no longer intend to keep their part of your business arrangement. Whether it’s defaulting on a lease agreement or failing to pay invoices, you or your business’ ledgers could be left in the red. Terrifying, we know!

Well, from reading last week’s post entitled “When do you need to sue?” you should already know that our firm encourages clients to move quickly. Don’t delay in starting a legal claim for repayment. While we already warned you about the ghoulish two-year limitation deadline you have to bring your claim, there is one more concern to keep in mind when looking for repayment.

A growing trend among corporate tenants is to default on their lease agreement or renege on invoices, declare bankruptcy, and set up a new corporation. Even if the court finds in your favour, the old corporation can show that it now has no assets to pay out – having already moved all its assets into a newly incorporated business. So, while you may be left with a successful court order in your hand, your pockets may be empty. To our firm, this is a scarier scenario than being a resident on Elm Street.

Don’t let this nightmare situation be your realty.

We encourage our clients to act right away, before the other party has a chance to hide their assets and avoid repayment.

We strike while the cauldron’s still hot and so should you!

Robin K. Mann, JD,   Associate Lawyer

rmann@andriessen.ca

When do you need to Sue?

When you are owed money for your services or products, how long do you wait until you sue a customer who doesn’t pay?  Did you know that you only have two years from the date that you are owed your money to do so, and if you don’t, you’re out of luck?

The Limitations Act in Ontario gives parties two years from the date they’re owed money to sue for that money back.  This was done partially so that the Courts would not be bombarded with older claims.  Also, as time passes, people’s memories fade and facts may be forgotten, or even evidence misplaced or lost.

The only time that a debt that is older than two years can be sued on is if the debtor acknowledges the debt or makes a payment.  Then your two-year clock starts again.

So how long should you wait before you sue?  That is ultimately up to you, but you shouldn’t wait long.

At our Firm, our 30-60-90 Sue™ program allows our clients to create easy procedures to help them get paid.  In a nutshell, here’s how it works:

After thirty days an invoice is due, send your customer a friendly reminder that you expect to get paid.

After sixty days, that previous friendly letter should now be a firm one, outlining any accrued interest and that the amount is due immediately.

After ninety days, give them just five days to pay, failing which you will sue them.

Still didn’t get paid?  Sue.

And it didn’t take two years to do it.

You did the work.  Don’t wait two years to get paid because you deserve to get paid now.

Murray Brown, Paralegal

mbrown@andriessen.ca

The Night Before Legal Pot in Canada

‘Twas the night before legal pot and all through the nation,

Big law firms were churning out Cannabis Policies and charging a fortune.

When what to small businesses’ eyes should appear, but a law  firm more practical,

They’ll take it from here.

 

OK, so we’re not poets, but honestly, all of the dramatic emails some law firms are sending around regarding the impact of legalization of recreational Cannabis is a bit much.

If your business already has a written Drug & Alcohol policy, then you’re likely already well covered in the workplace.  You are not allowed to work drunk, similarly, you are not allowed to work high.  It’s not rocket science.

Some firms are suggesting that employers require employees to advise if they are using medical Cannabis.  Really?  Are you also going to ask everyone to disclose when they are on Oxycotin, Percocet or a litany of other drugs that you’re not allowed to drive or use heavy machinery with?  The short answer is no, you’re not and medical Cannabis is a prescribed drug, just like the two others I named.

Some employers are concerned they need specific policies saying you cannot drive a company car while high on Cannabis.  Well, the Highway Traffic Act kind of already says that people – see what I mean about drama?

So.  To recap: legal pot does not mean it is legal to drive or work high.

Inga B. Andriessen, JD

iandriessen@andriessen.ca

 

 

Shareholders’ Agreements. Do you need one?

Usually,  the only time that the answer will be no to the question in the title of this Blog is when there is only one shareholder.

Once your company has issued shares beyond the one shareholder (presumably you), you should have a shareholders’ agreement.  I know what you are thinking, you are only issuing to family members so it’s not necessary.  Always plan for the worst.

A shareholders’ agreement provides for the management and financing of the corporation, and also deals with the rights and obligations of the shareholder amongst each other.  Every shareholders’ agreement is drafted to each particular situation.

For example, if the shareholders are employees of the corporation, it will map out what happens to the shares of that employee if they are no longer employed by the corporation.

Additionally, if shareholders are family members, that shareholders’ agreement will include specific provisions geared towards martial breakdown, and family involvement in the company.

Even though the agreement is tailored to each particular situation, there are standard terms which will be found in all shareholders’ agreements, such as how to transfer shares, how to pay dividends, financing and dealing with directors and employees.  For this reason, it is important that lawyers are involved when drafting these agreements, and also that each party to the agreement has an opportunity to review it with their own lawyers.

So when we ask you if you would like a shareholders’ agreement prepared, you might want to think twice before saying “maybe later”, because sometimes “later” is already too late.

Christine Allan, Law Clerk

callan@andriessen.ca