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Lawyers must keep costs down

|Written By Gail J. Cohen

MONTREAL -- When she was one of Canada''s premier litigators, Ontario Court of Appeal Justice Eleanore Cronk charged clients about $550 an hour. That was in 2001 but since then, Cronk says, standard rates in Toronto top out at $750 to $800 an hour.

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Today, she couldn't afford the consultation with herself, Cronk told an audience of mostly lawyers and judges at a two-day civil justice reform conference last week.

Lawyers' fees and their role in driving up the current cost of litigation across the country was one of the most hotly debated topics at the conference.

"The pressures from clients, [and] less money from legal aid can be severe, but have to be resisted," said Cronk in her speech opening the event. "To increase partner revenues, billing rates have gone up. We have to find a way to reduce costs while still covering overheads."

Delays, many agreed, are perhaps the biggest reason for the increasing costs of civil litigation. "Does process equal justice?" asked Cronk. Everyone deserves their day in court but that doesn't mean weeks, months, or more.

On a panel devoted to the role of lawyers in managing litigation and costs, the consensus was that productions and discoveries are the biggest areas of delay that ratchet up the cost of litigation.

The panel ? which included Advocates' Society President Linda Rothstein, Ontario Superior Court Justice Colin Campbell, Canadian Bar Association ethics committee member Louis Charette, Justice Geoffrey L. Davies from Australia, and McCarthy T?trault LLP's Thomas G. Heintzman ? not only identified problems driving up costs but attempted to find solutions.

Rothstein said there's a much more pervasive problem than the odd lawyer who treats litigation like trench warfare.

"We as a profession have slowly but surely, without realizing it, been captured by some kind of collective neurosis. There's a significant and pervasive courage and focus deficit in the barrister ranks."

The problem is not that lawyers want to take more time in order to squeeze as many billable hours from the client as possible, she said. Instead, there's a tendency to let documents tell the story and to gather as much evidence as possible even if it is never dealt with again in the litigation. You can't really lose a case by having too much evidence but there is a chance of losing by failing to introduce even a marginal piece of evidence, she said.

"We are much more motivated by fear than greed," said Rothstein.

Judges continue to allow lawyers to carry on and don't put an end to the endless flow of documentary evidence, she added.

Campbell noted that particularly with electronic evidence, "We can't afford to bring all the stuff in every issue all the time. We have to balance the cost benefits."

Changes, though, will require both new rules and a cultural shift in the way lawyers conduct themselves.

Time and again the issue of proportionality came up at the conference in terms of the conduct of trials. Basically the amount of discoveries, trial time, and other resources allocated to a case should be proportional to what it's worth.

In most jurisdictions, particularly Ontario and specifically Toronto, there aren't the judicial resources to have case management in every case and be able to have a judge set limits before a case even begins.

So it's up to the lawyers to do something about it, said Rothstein.

One of the biggest problems clients have is when they come to see a lawyer and ask how much it'll cost to conduct a particular matter. Most of the time, lawyers give a response that's unsatisfactory, such as it'll cost anywhere between $20,000 and $100,000 depending on how it goes. That's a huge difference and is no help for clients if they're trying to decide if they'll go forward based on the costs.

The majority of participants at the conference agreed that lawyers should provide some type of realistic cost and time estimate for clients and then stick to it.

Rothstein suggested creating a strategic litigation plan: a roadmap that spells out how and why you're going to do each step such as motions and discoveries. Have your eye on the end game, she said.

Doing a budget at the beginning and sharing it with clients can also help focus the issues, said Campbell. For instance, a client could choose to litigate only one aspect of the dispute and mediate all the others in order to save time and costs.

Davies from Australia said lawyers should not start with the assumption that a case is going to go to trial but rather that the purpose of the process is to settle and resolve the dispute.

And if the lawyers on each side can agree ahead of time on particular issues such as the number of days for discoveries, that can also contain costs.

In Quebec, new rules have brought in definite timelines and Charette said there need to be cost consequences for not meeting them. Now that the new rules are in place, lawyers' culture is starting to change to rein in delays.

In a paper prepared for the conference, the Advocates' Society recommends increasing the amount covered by the simplified rules procedure to $250,000, specifically in Toronto where most delays occur in Ontario. That's not a huge sum in Toronto and it would put strict timelines on the process for all of these "smaller" cases but would also change the rules to allow brief discoveries in such matters.

Ontario Superior Court Chief Justice Heather Smith noted in an earlier panel that cases that fall off the rails in the simplified rules regime end up having longer trials because there were no discoveries under the simplified rules.

There was a big debate about examinations for discoveries. In Australia and New Zealand they don't have them at all. It's all documents. In some jurisdictions in Canada there are limits on the number of days, often proportional to the value of the case. Quebec lawyer Pierre Fournier said setting such limits really helps to focus the issue and ensure only relevant questions are asked.

There was also widespread agreement that only documents that are directly relevant to the case should be produced. That's how it's done in Australia, and Davies said it has really brought down the costs of litigation.

 "We need to focus more," agreed Rothstein, "not litigate to the point of exhaustion."

But none of their suggestions dealt with how much lawyers are actually charging. While using fewer billable hours would definitely cut costs, Associate Chief Justice Neil C. Wittman of the Court of Queen's Bench in Alberta caused quite a ripple when he suggested "it ought to be unethical to charge clients solely by the hour."

Although Campbell noted that from his experience the litigators who charged the most also had the most efficient arguments, the issue of set fees ? such as those used by many immigration and real estate lawyers for set processes ? didn't stir much debate.

No one was willing to say they charge too much but at the end of the panel discussion most participants agreed that both lawyers and judges should, as much as they can, try to cut down on extraneous motions and discoveries and focus their energy on the swift resolution of disputes.

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