IT’S CAVEAT EMPTOR WHEN HIRING A LAWYER
Terminated staff should study the strategy and the money trail, writes Howard Levitt.
The internet is replete with self-help for first time car-buyers seeking to avoid being taken for a ride, as well as for firsttime homeowners wanting to rid themselves of burdensome mortgages.
But what about guidance for terminated employees — many of whom face the prospect of seeking legal advice for the first time in their lives, and over such a major issue?
A newly dismissed employee is vulnerable to lawyers whose reflex is to over-promise and under-deliver, and whose approach feeds the negative stereotypes about the profession.
Losing one’s job is highly emotional, to say nothing of the inherent financial uncertainty. Self-serving counsel often take advantage of that fear and insecurity to run up disproportionate fees while generating little in the way of actual results.
Consider these two examples my colleagues and I have recently observed from “across the aisle,” in acting for employers.
Example 1: The plaintiff’s lawyer has a case they know (or ought to know) is essentially meritless, and should properly be before the Small Claims Court, with a maximum award of $25,000. Instead, they obscenely overplay their hand, resulting in unnecessary court attendances and months of delay. The matter inevitably ends badly for the plaintiff, whose legal fees will assuredly eclipse any recovery. As well, if the case only receives an award within the Small Claims Court limit, the employee cannot recover costs.
Example 2: Despite a willingness on my client’s part to attend mediation, the employee’s lawyer eschewed early mediation and instead undertakes a number of costly and time-consuming steps in the litigation. This, despite the fact that mediation is mandatory for all wrongful dismissal litigation in Toronto. Plus, it quite often results in a negotiated settlement that makes pragmatic sense for both parties — before the employer’s settlement budget has been substantially eroded by the legal fees from protracted litigation, and while the plaintiff ’s net recovery has not yet been diminished by a substantial offset from their own legal fees. The result? This plaintiff has almost certainly spent tens of thousands of dollars in legal fees, perhaps more, on a case that could likely have been settled on a reasonable and pragmatic basis more than a year ago, but instead has no end in sight.
It is possible that both of these dismissed employees were fully informed as to their lawyers’ approaches and are entirely satisfied with the strategies adopted on their behalf. But I very much doubt that, for the same reason I doubt that any of my own employee clients would leap if I proposed to spend $50,000 of their fees to recover $10,000.
These are both case studies showing what can happen when lawyers prioritize their own fee-generating agenda over their clients’ interests. What, then, should a would-be plaintiff do to guard against legal fees that yield a negative return?
Do your homework and choose your lawyer carefully. Does the lawyer have a reputation for success and results? Purported accolades from surveys (which can be jimmied) or false online reviews look very impressive on a lawyer’s website, but are no guarantee of success. Great lawyering is to be found in a combination of book smarts, street smarts and client-focused service.
Remember that the lawyer
■ works for you. Your lawyer should be accessible and responsive to questions. Their job is to help you understand, navigate and optimize the outcome of matters, which are inherently complicated, stressful and adversarial. As a client, you should understand what your lawyer is doing to advance your interests and why. More fundamentally, you should be satisfied that the lawyer is spending fees responsibly and pragmatically. None of this is to say that clients should micromanage their legal counsel (that is itself inefficient, impractical and costly); however, any client who doesn’t understand his or her lawyer’s overall strategy (as well as the strengths, weaknesses and range of potential outcomes in his or her case) has been done an immense disservice, and should properly be alarmed.
Be particularly wary of lawyers ■ who seem too eager to immediately sue. There are circumstances in which that approach is warranted, but there are many other instances in which — at least initially — the exercise of diplomacy under threat of litigation can yield a quicker and more constructive result. (That does not mean that one should hold off unduly before issuing a Statement of Claim).
Litigation is a powerful tool. Used properly — it can be very effective in generating results.
On the other hand, litigation can be used irresponsibly and/ or unwisely — and sometimes to no useful end except to generate billings.
In the cases above, I wonder what sort of discussion was had between lawyer and client about the merits of pushing a bad position, or about refusing to proceed with mediation in favour of a costly litigation strategy.
There is no denying that legal services are expensive, and that lawyers operate in an arena where outcomes are not guaranteed, although reasonable assurances can be put in place if you understand the strength of your case and likely costs. But in this arena, just as in the financial world, there are good investments and bad investments. There are choices to be made, and steps that can be taken to increase the odds of a favourable return-on-investment — starting by heeding the age-old maxim of caveat emptor.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. Employment Law Hour with Howard Levitt airs Sundays at 1 p.m. on Newstalk 1010 in Toronto.