Our Take on Things

Nail down the terms of the contract before the contract is breached

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So, lets say you have a contract with, oh lets say your spouse. We don’t handle family law here, but let’s say it’s a prenup.  Imagine if you can, that you have stepped out on your spouse during your relatively brief marriage, more times than you have fingers and in a desperate attempt to remain married you offer to pay more money for a longer term of service, er marriage. 

Timing is everything  – and offering 60 million for 2 more years to your spouse after many ” transgressions” is not the time to renegotiate that contract.

Similarly, in the commercial world, negotiating the consequence for breach of contract needs to take place before the contract is breached.  It is not enough to meet someone, agree to provide a service for a fee, shake hands and walk away. 

While in that ” honeymoon ” stage, you need to have a contract signed that clearly sets out what happens if either party doesn’t do what they say they would do.   Pay a lawyer to create this contract, it is much less expensive to do it at that point, than to pay a lawyer to litigate it after the breach of the contract.

Of course, getting back to my prenup example, I have a funny feeling that lawyers are going to make a lot of money off that situation.

Inga B. Andriessen,  Sr. Lawyer

The Most Reliable Law Firm Ever

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Have you been following this ridiculous Rogers/Bell/Telus wars regarding ” the most reliable ” title ?

Wow. A tonne of legal fees have been spent on this and at the end of the day – how important is this victory?

Most business people I speak to are not swayed by advertising on cell phone plans/networks at all – they are swayed by word of mouth – finding out which plan works best for those whose cell phones appear to have good coverage.

The point of this blog is not to talk about cell phone companies (though I love my Fido) – but to point out that sometimes it’s only the lawyers who win – and aside from us, who really wants the lawyers to win?

When considering litigation that is not due to breach of contract, but more based on ” principle ” you must stop and ask, what tangible benefit is going to be recovered? This doesn’t just have to be money, but you do need to ask how much money you want to spend on a moral victory.

I always describe my job as getting paid to pick a fight – but I also am quick to point out to a client when I’m the only one who is going to win that fight and I think it is that trait that truly makes our firm the Most Reliable Law Firm Ever!

Inga B. Andriessen
Sr. Lawyer

What to expect at a Pre-Trial or Settlement Conference

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A Pre-Trial takes place in Superior Court; a Settlement Conference takes place in Small Claims Court – while the names are different the function is the same and I will refer to them both as ” pre-trials ” in this blog entry.
 
A pre-trial takes place before trial – it is a meeting with a Judge who will not be the trial Judge – this allows the Judge to hear about settlement offers and honest assessments of the case by the lawyers involved. 
 
Some Judges want clients in the room for the pre-trial and others prefer to meet with the lawyers, leaving the clients in the hall until instructions are needed.  Many Judges are now punishing clients who do not attend at the Court House for the pre-trial by making them pay the legal fees of the opposing party, the reason behind this is settlement is the goal, if at all possible, of the pre-trial Judge.
 
In a Superior Court matter, the lawyers file a memorandum with the Court prior to the pre-trial.  This memorandum outlines the position of their party and what, if any, settlement discussions have taken place to date.
 
During the pre-trial the Judge will provide an opinion as to the strength of each case – some Judges will blatantly tell a party they are likely to lose – others will warn that the cost of litigation is high to both sides and settlement is a better option.
 
Why consider settling if you have a strong case?  Well,  winning is great, but getting money is better – so if the other party is on the verge of financial collapse, a settlement that is paid immediately is better than a larger Judgment which might not be enforceable if the other party decalres bankruptcy.
 
Risk is another consideration in settlement: Judges are not predicatable and while you may have a strong case a Judge may disagree and find against you.  The certainty of a settlement is often a better solution, particularly when you consider the legal costs of a trial.
 
The statistics kept by the legal industry suggest 90% of all cases settle before trial – in my experience pre-trial can be an important component in that process and is a positive aspect of the litigation process.
 
Inga B. Andriessen
Senior Lawyer
 

Think about the consequences of your actions

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The shocking events of this week involving the death of a Cyclist allegedly at the hands of lawyer and former Ontario Attorney General Michael Bryant are to say the least horrific.  The actions that took place in the span of a few minutes have permanently altered the lives of many people and this is something that everyone can learn from, including those engaged in running businesses.
 
As a litigator I am generally approached to handle a situation that has gone wrong.  The work of our solicitor, Scott R. Young, tends to focus more on preventing those wrongs from taking place.
 
 Here are a few examples of situations in the corporate/commercial realm that could benefit from a few moments of calm reflection before acting:
 
1.    A valued employee quits unexpectedly.  As the employer, do not immediately react with the shock you are feeling and say something you will regret: this isn’t going to make the person reconsider and you may end up in a law suit.  Better to reflect quietly, then respond.
 
2.    An employee needs to be terminated for what you believe is cause, but you do not want to go through the three month procedure your lawyer has suggested.  As the employer, do not lose your cool and fire the employee on the spot with yelling, etc.  Contact our firm, discuss the options and calmly, privately, address the issue – if you don’t you may end up in a law suit.
 
3.    In a lawsuit the other side has made a “take it or leave it offer” that is very low.   As the party to a law suit, do not let emotion factor into your decision and demand to counter back with an unreasonable offer. Listen to your lawyer’s advice, we are paid to analyze the situation without emotion.
 
In all aspects of business, it is better to take a few minutes to think before reacting – I’m sure everyone involved in the incident that is in the news wishes cooler heads had prevailed: when they don’t the results can be a disaster.
 
 
Senior Lawyer

Tips when being cross-examined

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Being examined as a witness is generally a traumatic experience for most. Not many people wake up in the morning and decide a nice grilling by a lawyer would make a great way to spend the day.

So, remember that if you are going to be examined as a witness in a court action, you are not the first. The butterflies and dry mouth are perfectly natural fear responses.

Our job (aside from winning the case) is to try to lessen the trauma for you. We will meet with you prior to your examination to review the documents and your recollections of the events that are at issue. If we expect the examination by the other lawyer may be particularly grueling, we may roll play for a portion of the meeting and ask you all sorts of provocative and nasty questions in the hopes of getting your blood boiling – just so that you can realize when really being examined not to take the bait.

Here are some basic tips on how to act when being cross-examined by another lawyer:
– dress professionally, as it really does help.
– ask for a glass of water when going into the witness stand at court or when at the reporters office for a discovery – it helps cure that dry mouth problem.
– wait for questions to be asked before responding and consider the answer that you want to give – a sip from the water glass will buy you a few more seconds.
– if you don’t know the answer to the question, say so or ask for the question to be clarified.
– If you know that there is a document that will help you with your memory in answering the question, refer to it and ask to see it.
– Be careful of the sentences that start “Wouldn’t you agree …”. Agreeing without thinking is usually is a bad thing when being cross-examined, so consider the question asked and answer it honestly and carefully.
– Answer the question, stop talking and wait for the lawyer to ask the next question
– Don’t ramble on. Sometimes lawyers will intentionally not ask another question and will just look at you. They are trying to goad you into talking more than you should.
– Do not ever fight with the lawyer who is asking you questions. You will rarely win that battle of wits. When you lose your cool, you’ve lost more than just that.
– Don’t use “uh-huh”, “nope” or “yup”. Those are not words. And avoid nodding or shaking your head, as there is a reporter present whose job is to type out what you say.
– If you get tired, ask for a break.

Paul H. Voorn