 Welcome, everyone, to the last mini-law of the academic year. Tonight's session is on navigating the legal systems, specifically with a focus on civil cases and family cases, both in the Nova Scotia Supreme Court, the Family Court, and the Small Claims Court. I know that all of you could be home watching baseball or hockey or the new episode of Criminal Mind, so thank you so much for coming out tonight. I hope that I offer something at least a little bit as entertaining as what's at home. I'm delighted to see such a great turnout tonight for the session. Now, my name is Professor Cynthia Tudor. I'm on faculty here at the law school. I was called to the bar about 20 years ago, and I spent the first six years of my career in private practice doing criminal law, family law, and civil litigation. Since then, I've been doing one thing or another, and most recently I teach here at the Schulich School of Law, torts, family law, and advocacy, and I see some of my students in the audience. Hi. I want to remind everyone that we're videotaping the session tonight for YouTube, and it should be posted in a few days, and the slides as well will be part of the presentation, so you don't have to worry about taking down extensive notes of what I've got in the slides. You can watch the YouTube video at any time once it gets posted, and if you just want the slides, you can contact Lindsay Loomer, and she said she's happy to flip you a PDF. Are you Lindsay.loomer at dow.ca? Lindsay? Yes. Yes. So, Lindsay.loomer at dow.ca, and she's going to write it on the whiteboard there. Now, I was watching a few of the many law last night from some of my colleagues, and what I noticed was they all have better slides than me, so I apologize for the quality of my slides. They've got video and all this stuff. These are just plain ones. I want to talk a little bit as we begin though about what we're going to cover tonight. So, these are the things that I would like to spend at least a little bit of time talking about. We have an hour and a half, and I want to leave at least 15 minutes for questions at the end, but I'm not an enormous fan of leaving all the questions to the end. So, what I'm going to suggest that we do tonight is as we finish each of these sections, I'll call for questions, and if you have any, let me know, and I'm going to try to balance that with moving things along so that we do make sure we talk at least a little bit about all of the things on the agenda tonight. It's a very complex area, navigating the justice system, and I'm sure you're all aware of that. And we could probably spend an entire year of many laws just talking about this subject. So, I've had to be fairly judicious about what to talk about tonight. I hope that what I've chosen is what's helpful to you. And my first principle as a teacher has always been to try to put myself in the position of my student and say, if I was in the class, what would I want to know? And a quick story about that, just as we begin, back when I was a teenager, my little sister came to me one day and she said, Cynthia, I have a question. I said, oh, sure, you can ask me anything, what's up? And she said, well, it's a question about being a girl and growing up. And I thought, I'm ready for this, figured it could be about the birds and the bees, could be about puberty. My mind starts racing as we're sitting down and I'm thinking, what you can ask me about? I'm gonna be ready though, I'm gonna be sensitive, I'm gonna be knowledgeable, I'm gonna be informed. I'm not going to scare her off with my answer, I'm gonna do this, I'm gonna be a great big sister. So she was obviously very nervous about this. And I said, what do you want to ask me? And she said, well, how old were you when you started carrying a purse? And I thought, whoa, that wasn't on the top 100 list, that wasn't any of the things that I was thinking about. And so all of that is by way of saying that you can try to make sure that you get it right and you think you know what somebody else wants to ask and what they want to know about and sometimes you can be utterly wrong. So if I do get it utterly wrong and it's not what you wanted to talk about tonight, let me know in your questions and I can try to move things around to make sure that whatever the burning point is that you wanted to come away with an answer after today that we can start to do that. Now I'm interested to know, it looks like we have maybe 50 people here or so. How many here are interested about hearing a family law and things about family law? Okay, handful. And how many here are hoping to hear about Small Claims Court? But okay, a few more. And how many want to hear about the Nova Scotia Supreme Court, Civil Cases? Okay, about the same number. Are there any access to justice advocates here tonight? Is Wendy here? Oh, there's Wendy. Can you stand up Wendy so everybody can see who you are? I want to introduce Wendy Turner. Wendy is with the Legal Information Society of Nova Scotia, a fantastic Nova Scotia organization that provides legal information to Nova Scotians. They have a lot of different programs and one of the handouts outlines all of their fantastic programs. So Wendy has come tonight and she's actually told me that she's willing to answer questions about those programs. So everybody knows who Wendy is now and I think she might be the person answering the lawyer referral in the legal information line too. Is that ever you sometimes? Yeah. So Wendy will be here and she's able to remain around for a few minutes afterwards. So the first thing I want to talk about is a few minutes about access to justice because access to justice is really the elephant in the room here. We can't talk about navigating the legal system without at least mentioning it. So you'll see, according to the Federal Department of Justice, nearly 12 million Canadians will experience at least one legal problem over any three-year period. We also know from research that vulnerable people tend to experience problems more frequently. One Australian study suggested that 22% of the Australian population had 85% of the legal problems. Yeah, and we also know that once you have one legal problem, they tend to cluster and they tend to multiply. So if you have one legal problem, you're more likely to develop others and that problem disproportionately affects vulnerable Canadians. So despite this prevalence of legal problems, there's still a lot of Canadians without lawyers. And there's been a big change here. So you'll see 20 years ago, the Canadian Bar Association estimates that only 5% of Canadian litigants were self-represented. It was a rarity to see someone representing themselves in court. That's about when I started practicing. And other than small claims court, it happened, but not very often. That has changed completely. Today up to 80% of litigants in Canada's courts are self-represented. Typically, 80 would be in the small claims court and lower courts. But it's still 50% on average across Canada in family courts. 50% for civil litigation, 30% in our Nova Scotia Court of Appeal. And there are even now guidelines and information for self-represented litigants at the Supreme Court of Canada. This wasn't always so. What happened from that 5% figure to get us to where we are today? We've had lots of contemporary access to justice work, and yet it hasn't solved this issue. So we start in the 60s. If we go back, this was the advent of legal aid programs, the growth of administrative tribunals, simplified procedures. By the 1980s, the focus was process. And also a renewed interest in alternative dispute resolution methods, probably in part stemming from a revolutionary book by some Harvard law professors called Getting to Yes, which I'm gonna talk to you about a little bit later tonight. The 1990s were concerned with reducing costs, delays and complexity of legal proceedings, not entirely successfully, as I'm sure you know. And then by the turn of the millennium, we were looking at cost efficiency and staying within budget. And that has been over the last 15, 16 years. Legal aid budgets during that time have been stagnant, and that is part of the problem. The Canadian Bar Association flagged underfunding legal aid as one of the major issues in access to justice. Now, while all of this is going on and notwithstanding or despite the reforms to try to simplify court procedures, make them less complicated, the reality is life has gotten a lot more complex. One of the big things that the court has had to deal with is the advent of electronic evidence, emails, documents. There's been an explosion in how big cases get, and I mean big in the physical sense, how many boxes of paper the cases deal with. When I was first practicing, it was unusual to have a case that took a whole banker's box. Does everybody know what I mean by banker's box? One of those, you might even have one at home. And I remember aspiring as a new lawyer to the day when I would have a case that would take up a whole banker's box. Nowadays, it's like that. There are bankers boxes, multiple bankers boxes, now file rooms in some bigger cases. It's a completely different world. And it's not a great world for self-represented litigants. The National Self-Represented Litigants Project recorded after interviewing hundreds of self-represented litigants that almost all of them, they started out optimistic by the time they got into their case, they ended up disillusioned, frustrated, and overwhelmed with the complexity of the case and the amount of time it was taking them to deal with it. One estimate was that a self-represented litigant had to do 193 separate tasks in order to move the case of the system. And you can imagine, they've got full-time work, maybe you've got childcare obligations, you've got other obligations in your life. It's a huge, time-consuming task. And I'm sure I'm preaching to the converted here. You know what I'm talking about. So in an Access to Justice report in 2013, the Canadian Bar Association described our legal system as badly broken and profoundly unequal. They were the only ones sounding the alarm. The World Justice Project ranked Canada 9th out of 16 countries in North America and Western Europe in civil justice. Just above the halfway mark of 29 high-income countries and a dismal 54th of 66 countries in access to legal aid. Now globally, we're doing a little bit better in a measure of 102 countries. Canada ranks 14th in terms of civil justice. Now, we could spend an entire mini law series simply on Access to Justice alone. Governments, courts, legal organizations, law societies, they all have this problem on their radar. They're all working to fix it. The consensus seems to be it's gonna require some something transformational, not just a piecemeal approach, and that it's a massive task. So in other words, while we're talking about the practical things tonight, there's something much, much larger going on around us. Now if you're interested in exploring this a little more, I've included a handful of papers that look very carefully and thoughtfully at the issue. You don't have to write these down. They're all on one of the handouts that I've provided if you wanna take a look. And they're all, I didn't include long links because I find long links tend to get broken really quickly. I test-googled all of these today and they come up either the first link or definitely on the first page. So if you just Google the title, you'll get to the right place. Any questions so far? Okay. At the sense that I'm telling you things you already know. Oh yes, question. I don't know if this is the right time, but coming back to the very beginning, and then I notice the literature that you list, probably doesn't really get at one of the biggest problems for people who are looking after their own cases. And that's getting access to case law. It's very difficult to just keep going through and through and through to find the cases that fit what you're trying to do. Absolutely. And there's no assistance available because for the people who are the legal advice, they say that they can't really help you. They can only answer some questions that are pro-formal. Yeah. I have a couple of ideas to answer that. So the question was doing legal research, getting access to cases. How do we do that? Now the handout that I've given has a bunch of links to enable self-represented people to get started with the legal research. The downside is that a lot of them are internet links, so you have to be comfortable with the internet. But there is a website called Canly. Are you familiar with Canly? So Canly is a project from the Federation of Law Societies that's got the goal of putting all of the case law online in a database that's free and open to everyone. So they're adding to it every day, not only bringing it forward with the newest cases, but also archiving older cases. So they're going back and back. They've got everything organized by province. You can do keyword searches. The website is canly.org, and that link is in the handout as well. You don't have to write it down. So that's one way to do legal research. Now another way is to use a law library, and that's particularly helpful for people who aren't comfortable with the internet. We have three law libraries here in Halifax. There's one here, right in this building. There's one at the Nova Scotia Legislature, and there's another on the top floor of the law courts. They are open to self-represented litigants, and they include not only cases, but also textbooks, and textbooks are a wonderful way to help brief you on the law in a particular area, and some of them are quite accessible. So another thing I've included on the handout is an Essentials of Canadian Law series that's affordable textbooks on the law, including Civil Litigation in the $40 to $50 range, and they're pretty readable as far as law textbook goes. It's not gonna be the next John LaCaralla novel, but they're not bad. So that would be another thing that I would suggest. And the third thing is this idea of unbundling legal services. So if you've heard of this, I will talk about it a little bit later. Unbundling legal services is the idea of hiring a lawyer to do something with your case, but not everything about your case. And so one of the things you could potentially hire a lawyer to do is some legal research and write you either an opinion about all of the cases that apply or even a brief, something that you could potentially submit to the court and say, here's how the law applies to my situation. Now that does cost money, but not as much as having a lawyer represent you all the way through from beginning to end. So hopefully we'll touch on some more of those things as we go into the talk. Now I wanna talk about a distinction you've already probably heard about, and this is the distinction between legal information and legal advice. Probably some of you have come up against this distinction. It can be a frustrating one. So when we talk about legal information, which is what I'm giving you tonight, legal information explains the law and the legal system in general terms. In other words, terms that aren't tailored to a specific person, specific issue, a specific case. Legal advice applies the law to a particular situation. And it's useful to highlight this difference because as you move through the legal system, you're gonna repeatedly hear from court workers, from community legal organizers and professionals, that they can't give you legal advice, they can only give you legal information. Quick show of hands, how many have already heard that? Yeah, okay. Were you frustrated? Oh yeah. It's kind of like playing a computer game when they say, and you need the golden key, you say, where can I find the golden key? I'm sorry, that's legal advice. I can't tell you, you're on your own. I understand that. And there really isn't a great easy solution. So I wanna talk a little bit about what the difference is so everybody's clear on it. And probably the best solution is gonna be to focus on ways to get you some legal advice in a cost-effective way and that's gonna be another focus of my talk tonight. So this slide outlines the difference between legal information and legal advice. So just for example, grabbing the first one, legal information would be telling you what a word means, like what is matrimonial property? And that term is defined in our Matrimonial Property Act. Legal advice would be saying your family heirloom is not matrimonial property because it's inherited. Another example, procedures. So the steps involved in a lawsuit typically can be found in the civil procedure rules that's providing legal information. Telling you which step to take or how to do it is legal advice. So you should make an application in court is legal advice. Any questions about that? So I've kinda given away my hands. I can't give you legal advice tonight either but I can give you legal information and I can point you to people who will be able to give you legal advice. Now I think the $64,000 question, I'm dating myself with a reference, the $64,000 question here is why can't these court staff, community legal workers, professionals, why can't they give me legal advice? And the short answer is because it's illegal. The law that regulates lawyers and others is called the Legal Profession Act and it defines what is the practice of law and so the things on the slide there that amounted to legal advice are all things that also amount to the practice of law and it's illegal in Nova Scotia and across Canada to practice law if you're not authorized to do so and if you commit the offense of practicing law when you're not authorized to do so, if you do it for compensation directly or indirectly you can be fined up to $10,000 for a first defense. So that's the practical reason why it's so difficult to get legal advice from someone who's not a lawyer. Any questions about that? Okay. Now I'll confess that I wanna move on to making and defending claims in civil cases. My first draft of my talk for you tonight included probably a dozen or more pages on the various steps in how to do them and I realized very quickly that I would need about 19 hours if I was gonna do it that way and secondly that there are some really great resources out there already that take you step by step through that process. So what I'm gonna do here for this section of my talk is cherry pick. I'm gonna tell you about some things that I think will be helpful to you that you might not have already encountered in your travels. So in terms of making and defending civil cases, one of the very first things you need to know about is that Nova Scotia cases are governed by something called the civil procedure rules. The rules are available online. You can look at them for free. Law students here at this law school take a full year course in these rules called civil procedure. They also take a course that lasts the full term called evidence if they choose to do that, most do. Our rules were written, rewritten in 2008 in an effort to update them and make them a little more user friendly and accessible. I'm not, at first I thought they had and now when I read especially the amended ones I'm not totally sure that they've gotten it but they're better than the first set of rules. Now each level of court has written material online and often in booklet form as well setting out the steps that you need to take to make a claim in that court and some of those are listed in the handouts page that you can get at the end of the talk. I also wanna talk a little bit about time limits. Almost every kind of claim that you can file in court has a time limit attached to it. Nova Scotia has a new limitation of actions act. It came into force in September of 2015 but it's not the only place to go to look for time limits. Other laws also contain time limits and some of them are shorter than in the limitation of actions act. So the key takeaway point here is if you're serious about potentially filing a claim one of the very first things you should do and one of the first things we teach our law students to do is go find out what your deadline is, write it down prominently and make sure that you don't miss the deadline. Now I wanna see something about defendants here tonight. Is anybody here a defendant in an action as opposed to a claimant or plaintiff? All right, this can go possibly for both sides but certainly for defendants. If you get served with papers you should not ignore them. That can be hard and sometimes even if you have the best of intentions they get stuck in a pile and the deadline goes by and what can happen if you don't respond to the papers in time is the court can go ahead and make an order without you and once they've done that it can be more or less difficult to have that order set aside. So don't ignore court papers if you get them and make sure you meet all of those deadlines as well. Gonna talk a little bit about family cases because I know there's a few folks here tonight who have family cases on the go. This is something my law students find particularly confusing because we have a court system in Nova Scotia that's called a partly unified system and what that means is that in part of the province specifically HRM and Kate Breton we have one stop shopping at the Supreme Court family division. So in other words all of the family law cases go there. But in the rest of Nova Scotia we haven't yet unified with one court and so there are two courts that deal with family law matters and it can be complicated to figure out which court does which thing. So here's a slide dealing with that. Now the people who are most affected by this division are common law partners. They end up having to go to two courts to get their family law issues resolved. They're in the family court to deal with custody, access and support. But to get a division of property they have to go to the Nova Scotia Supreme Court. Two different actions, twice as complicated, perhaps not twice as lengthy but it's definitely more work for the self-represented litigant and for the lawyer. More info on family law. Those of you who have a family case if you haven't been to nsfamilylaw.ca it's well worth your time to check out. It's a wonderful resource put together by a handful of co-sponsoring organizations. And that website has a detailed guide called Going to Court, Self-Represented Parties and Family Law Matters and the neat thing about this guide is they've written it very carefully so that no matter which court you're in, it applies. And the advice is equally good for whether you're in the family court, the Supreme Court or the Supreme Court family division. Now if you're looking for the rules for a family case you can find those on the Nova Scotia Court website. And you'll see family court rules are in a separate place. The Supreme Court family law rules are in the civil procedure rules. Rules 59 to 62. And when you see what's called district rules they're talking about the Supreme Court outside HRM and Kate Bretton. Oh, before we go to that. Any questions about that? All right, let's move on and talk about small claims court for a few minutes. Nova Scotia's small claims court was founded in 1980. It's been operating ever since. Started with a very small jurisdiction. Might have been $1,000, I can't remember completely. Currently it has a $25,000 limit which is one of the largest in Canada when it was first instituted and remains one of the largest in Canada. It's enough to get a lot of your business done. It's also enough to scare the pants off you. It's a lot of money. So what kinds of cases does the small claims court hear? A lot of them are debt collection, bi-commercial debt collectors by banks but it can be by individuals as well. They hear a lot of claims against contractors where people were unsatisfied with work that was done. If you buy a car it turns out to be a lemon. So consumer protection kinds of claims. If you buy a house it turns out to have a leaky basement or a bad septic system, wrongfully dismissed from a job or if your ex won't give you back property that's important to you. Those are a lot of the cases that the small claims court sees over and over again. They're not the only kinds of cases that the small claims court can do. Basically the small claims court can do anything that's worth up to $25,000 except for the kinds of cases that the small claims court act excludes. Now what happens if your case is over $25,000? What if it's say $25,800? Can you still use the small claims court? The answer is yes if you're willing to cap the claim at $25,000. So you can collect more than $25,000 plus interest and your actual costs of getting there minus legal fees. So here's a list of the things that the small claims court can't do because the law prohibits them from doing it. These kinds of cases have to go to the Nova Scotia Supreme Court. So if we're not talking about a leaky basement, an actual ownership of the land who owns it, that has to go to the Supreme Court, wills, claims against the province. Now you can't have a personal injury case in small claims court. The problem is the pain and suffering component of it is capped at $100 and for a lot of people that represents a big reduction. So most of those cases end up going in the Nova Scotia Supreme Court. And then a handful of torts. If you wanna get more info on the small claims court, the Nova Scotia court website is probably one of the best places to go. They have booklets to help you decide whether your case should be in small claims court or not. They talk about how to use a subpoena to make sure that the witnesses you need come to court and they have a booklet on enforcing court orders. And the problem there now, if you sue and you get an order and the person pays up, that's great, but if the person doesn't pay up, it can be time consuming, complicated and frustrating to enforce an order where someone doesn't pay. And so they have a booklet on procedures and practices for doing that. You'll also find some interactive forms that you can fill out to make claims in small claims court. Any questions about that? Yeah. A problem involving a will and a beneficiary under will? You'd have to look at it, so it's all about what the law excludes. You'd have to look at the small claims court act section. I didn't bring it down with me. You have to look at it and if the problem that you're thinking about is included in the exception for wills, then you'd have to go to the Supreme Court to do that. So now that we're talking about the Nova Scotia Supreme Court, let's talk about that. If you have a claim in the Nova Scotia Supreme Court, I'm not gonna talk about the whole process and there are really good guides on the Legal Information Society website for how to start an action in the Supreme Court or how to defend an action in the Supreme Court. You can find them on their brand new public navigator section and you can find the public navigator section if you go to the website which is legalinfo.org and then click on I have a legal question and representing yourself and you'll see all of the public navigator materials which are great and include those two things. So rather than try to, I could talk to you for hours about actions in the Supreme Court. So I cherry-picked three things that I think are important for self-represented litigants to know about. Things that could maybe make it easier, faster, less complicated to make your claim in the Nova Scotia Supreme Court. So the first one is a rule called the application in court. This is a new rule that came about for the first time in 2008. So we only have a little bit of experience with it. But basically the gist of this rule is that if you have a case where the facts aren't particularly contested but you need a judge's decision on something, you can make an application in court and the judge will decide the case based on affidavits. Affidavits are sworn written statements and there can be some cross-examination on the affidavits. But if you basically know what the facts are and they're not terribly in dispute this is a way to get our legal result faster and faster in the legal world usually means cheaper. Another thing you should know about is something called summary judgment. So summary judgment is where a person making a claim if they don't have a leg to stand on. So they've made a claim and it's doomed to fail and we know it's doomed to fail. The court can dismiss the case before trial if the other side asks them to do so. And it's the same thing with the defense. If you make a good claim and the other person has no defense whatsoever, it's doomed to fail, you can apply for something called summary judgment and get the court to what's called strike the defense and give you judgment without hearing a trial. So this is a way to streamline the system for cases that just simply don't have any merit on one side. And that's contained in a civil procedure rule called rule 13. And you see it used in things like debt collection. If the plaintiff files a claim saying Cynthia owes me $25,000. Or let's make it $250,000 because we're in the Supreme Court, we can make it any figure we want. And my response is yes, but it was Tuesday. Well, that doesn't amount to a defense in any world that I know about. And so for that reason, the judgment would go you wouldn't have to wait two years, get a trial. The idea is that for those kinds of situations, there should be a faster way to get to a result and summary judgment is the way. Now a caution here, if you are on the receiving end of a summary judgment motion and you are the self-represented litigant, the other side is represented by a lawyer. It's time to think about getting a lawyer yourself because the National Self-Represented Litigants Project looked at this particular situation and they concluded that where a lawyer applies for summary judgment against the self-represented litigant, the lawyer is successful 95% of the time. So if you want your case to continue, that's definitely a time to think about getting some legal advice. The third rule I wanna tell you about is also a new rule. This is new from 2008. It's called the action under $100,000. And there's two rules that deal with this. Civil procedure rules 57 and 58. And the idea here is to give a halfway point between the small claims court, which only goes to $25,000, and the full Supreme Court, which can deal with cases worth millions, hundreds of millions or more. There's no financial limit here. And so what these two rules do is they create simpler procedures, little bit of trimming around the edges to make it a little bit more proportionate. So if you have a case that's under $100,000, which means that probably, not necessarily, but probably less complicated, you can choose this rule or push the case into this rule if you're on the other side and you can convince the judge that that's where it should be. So that's something else to think about. Any other questions about that? Yes, two. So first in the back and then at the front. Go ahead please. Just a technical question. Can you ask for a summary judgment if you're looking for an injunction? You could ask. I have to be careful about not giving legal advice here. There is a separate rule for injunctions. So you'd have to look at that rule and see if that one is a better fit. Court law suggests that you can apply for a temporary injunction, but then you're going to look for a court case eventually. Summary injunction from what you're describing is quite different than that, but it would be outside that. Summary judgment is, it would apply to end a claim or end the defense that has no merit. So if what you're actually looking for is a permanent injunction, yeah, you'd have to start with the rule on injunctions. This is not possible for a permanent injunction. I can't tell you that because that's getting into legal advice, right? And I don't know anything about the facts of the case. So even if I could give you legal advice, it wouldn't be responsible for me to do it. But you'd want to, let's save your question and we get to the point about summary advice. That's the kind of question that a lawyer could potentially answer in a short amount of time or in a cost-effective way. So when we get to the part about where you can get that kind of low-cost legal advice, then I would say let's write those down and ask a lawyer about those procedures. And the question at the front. I'll just, I probably shouldn't be saying this, but is there any correlation between requesting a summary judgment and getting a lenient judgment? Getting a lenient judgment? Yeah. Oh, I see what you mean. You mean that the court might go easy on you because you admitted? Yeah. Yeah. The only significance to that in the civil system is, you've heard of legal costs, right? So in the civil system, not small claims court, but in the Supreme Court, the winning party is usually entitled to get some of their legal costs back. And so how hard and how long you fought a case has something to do with what the legal costs end up being. And so if you, let's take my case where the person says Cynthia owes me $250,000 and my defense is no, I don't. If the case is disposed of at the summary judgment stage, the other side's legal costs will be relatively small. And so the costs that I would have to pay when I lose are relatively small. But if I fight it all the way to the end of the day and they incur massive legal costs in getting the judgment from me, my costs are gonna be higher. So the court is not more lenient because the law is different, but the legal costs could be higher. Yes, one more question. Yeah, there are separate rules about costs for tribunals like the Human Rights Commission. And so you can't directly apply things from the civil procedure rules. You'd have to do specific research about costs in the human rights context. Wanna move on and talk about consensual dispute resolution options? Sometimes you'll hear these called ADR, or Alternative Dispute Resolution Options. The recent trend has been to call them consensual dispute resolution options on the idea that they really shouldn't be seen as alternative. Maybe one of the things that our legal system needs, commentators say, is to make these kinds of solutions or options central to the legal system as opposed to off on one side. So I'm gonna call them consensual dispute resolution options. And I'm gonna start with a question. What percentage of civil cases do you think settle without the need for a trial? 90? Anybody wanna get something different? 95? Are we that high? We actually are. Typically around 97%. And that's so across Canada. It's so even in other countries. So while most cases ultimately settle without a trial, that doesn't mean that there is never a court appearance. There might be one or more than one court appearances in the case as it moves through the system. But ultimately, we know that 97% of cases are gonna be resolved not by a judge who decides, but by the parties themselves. So the issue becomes not so much whether to settle, but how and when to settle. The when part is easy. You should settle as soon as reasonably possible. A recent Canadian Bar Association report on access to justice put it this way. Justice degrades with the lay. So a quick example. If you're owed $250,000 by Cynthia, you file a claim in May and you get a judgment in July, that's not so bad. But what if you're owed $250,000 by Cynthia and it's causing you some significant financial difficulty and you file a claim in May and three years from now, you're still waiting for your trial. And maybe you settle at that point. Maybe for $250,000, maybe for something less. Doesn't feel as satisfying. Time makes a difference. The other thing is that the how is a little bit more complicated than the when. So I wanna say a few words about the options that are out there. Now all of these methods have a few things in common. They're typically voluntary. They're typically private. And they're typically faster and cheaper than the traditional road of filing a claim in court and getting the judge to decide. They can be less emotionally draining than traditional litigation. They can help to preserve working relationships. So this is especially important in family cases. If you are obligated to continue to work with your ex who's a parent with you to children, you have to make sure that that relationship stays in a state where hopefully you can do some work with the person. Labor law is the same and for the same reason these kinds of tools are used in the labor law context because the state of the relationship matters. So let's talk first about negotiation. This is simply nothing more than talking it out. You can do it yourself with the other party. You can have your lawyers do it. You can talk with the other lawyer. You can have a support person with you. There's no specific rules on how to do it. You can have a lawyer only give you advice behind the scenes and go do it yourself. These days there are even computer programs that will help you negotiate. I kid you not, there's one called smartsuttle.com. They've got, basically it's this artificial intelligence negotiation maximization win-win program. I haven't tried it, I can't vouch for it. I'm just saying it's out there and it's kind of interesting. Now what I do want to tell you about which I can vouch for is what's up here. So back in 1981 there were two Harvard University professors who worked in what was called the Harvard Negotiation Project and they published a book that was revolutionary on negotiation. There's probably not a lawyer in Canada now who hasn't read this book. The book was called Getting to Yes. And it gave a set of rules for what the authors called principled negotiation. A way to negotiate that's not zero sum. What I mean by zero sum is if you have a pie and one person takes a bigger piece of the pie, the other people get smaller. There's no way around that. Whoever gets the big piece has less for somebody else. And what Fisher and Urie, the original authors, concluded was maybe there was a different way, maybe there was a way to make more pie. And so their principled negotiation strategies are used by heads of state, diplomats, government officials, lawyers, and they can be used by you too. They're pretty accessible. So I want to talk about them a little bit. And I also brought the most recent edition of the book to prove to you it's not this heavy legal tome that's going to suck to try to get through. It's really not like that at all. It's available in almost every bookstore, a couple hundred pages long. And it also will revolutionize the way that you negotiate. So I'm doing a great disservice to Fisher and Urie and Patton who's come on board later, trying to summarize this in a single slide. But I want to give you enough to hopefully convince you that this is a book that's worth going to find. So here's what they say. Here are the five rules. The first rule is to separate the people from the problem. And what they mean about that is criticizing or blaming the other person as counterproductive. They suggest coming to the table with the focus on solving the problem. And I had to use this actually just very recently. There was a notice came out at my daughters after school program that they weren't able to find alternate space while our school is under construction. And so they were going to close down the program for two years. Well, everybody was the parent of a small child who needs childcare knows the kind of freak out you get when your childcare provider says, yeah, we're not going to do this anymore. So I had a quiet freak out and I decided to go and see if I could figure out how to resolve the problem. So I went and talked to the childcare providers. They said, ah, we just weren't able to find space. And I found out what their needs were for space. And then I went and talked to the school principal. And she said, absolutely, we're very supportive. We just don't have space. She explained to me why. But she did have some suggestions. And I came out in a very particular way. I suppose I could have phoned up the childcare provider and criticized them and blamed them for not finding space and maybe not trying hard enough to solve the problem. But I thought that would be the wrong way to go about it. So when I called, I said, how much my daughter enjoyed the program, how much I thought she was thriving in the program and how sad I was that it wouldn't continue. And I said, I wanted to help. I wanted to put together a working group of parents to put our heads together and try to come up with some options that might work. And you know what, we didn't even have to get that far. What happened was one of the suggestions the principal made was acceptable to the school program and we're good. My daughter has childcare for next year. But I bet that I wouldn't have been helping if I'd come in blaming and criticizing. So that's the first rule. It makes people willing to work with you. Second rule is to focus on interests and needs and not on positions. So classic position, I want $5,000. Okay, well, I'm only willing to pay $2,000. And you have this. Nobody gets anywhere. An interest is why somebody wants what they say that they want. And that may be something totally different. Why do you need $5,000? Well, that's how much I need in order to buy a new car. Or that's the email that I need to replace the car that turned out to be a lemon. If you know what the interests are, you can come to a solution that meets those interests that may have nothing to do with positions. So Fisher and Urie, I'm stealing their story here. They tell a story about two kids who were arguing over an orange. They have one orange, both of them want the orange. There's no real solution here. They have one, the two of them can't have a full orange each. So they end up deciding to cut it in half. So this is the pie, right? Where one side gets a certain amount, whatever's left goes to the other person. They split it equally, that's okay. They both went away with a little bit of what they wanted. But if you'd ask why, why do you want the orange? It turns out one student wanted the orange because he wanted a snack. And the other student wanted the orange because he wanted to use the peel for baking. And so if they'd explored why, they both could have had all of what they wanted instead of part of what they wanted. Now, the third rule that Fisher and Urie and Patton talk about is the idea of brainstorming. So once you've figured out what the interests are, either with the other side, if you trust them and you feel comfortable, or maybe on your own, you can brainstorm solutions. The idea here is no commitment, just typical brainstorming rules, let it all come out, write it down, don't judge it as it comes out. Maybe you'll come up with something creative. The next rule, and I use this all the time in my law practice, use objective standards. So what you think is fair, maybe nothing like what the other side thinks is fair. So you have to start thinking about, well, what could we both agree on is fair. So if you can agree on the value of a car, maybe you can get an appraiser and agree that whatever the appraiser thinks the car is worth is what you'll both say, okay, the car is worth that. Or case law is an objective standard. This is what the judge did in these five previous cases. So this is what's fair in this case too. Objective standards are incredibly powerful. So if you can find one that applies to your situation, you can use it to help get a fair result for everybody. And the last rule is something called a BATNA. How many know what a BATNA is? You have a few getting to yes, folks, okay. A BATNA is your plan B. It's an acronym that means the best alternative to a negotiated agreement. So in other words, when you go in, you have to know if this doesn't work, what am I gonna do next? And typically your BATNA might be going to court, might be dropping the case, could be anything, but you should know going in, what's my next step? What's my plan B if this doesn't work? Because that tells you how strong or weak your case is and it'll help you evaluate whatever's on the table to see if you should take it or not. I'm gonna talk about mediation. Mediation is used in family cases, used in personal injury cases, starting to be used in commercial cases. And fundamentally what mediation is, is a trained mediator, facilitates a negotiation between the parties. In other words, they help them follow the five rules that Fisher and Urie set out, focus on the people and not the problem, brainstorm solutions. And you can help reach the solution where you have somebody who's really focused on that process and helping you get to what you need to get to. Now the mediator's neutral, they typically don't make a decision for you, it's up to you to do that, they're just helping you with the process. They do cost money, but typically they're cheaper than hiring a couple of lawyers. And sometimes situations can be resolved in a few mediation sessions. So even if you're sharing the cost of say $150 an hour, it can be a cost effective way to try to resolve a dispute. What's the downside? Well, you could throw money at this option and it might not work and you end up back where you started. It's also not recommended in certain situations, typically things involving power imbalances, domestic violence, where people can't feel like they can be in a room and advocate for themselves in other situations. So you have to figure out if it's right for you or not. But it's a good option and I can tell you as a family lawyer, I saw this option work wonders. More than once I saw two people who couldn't be in the same room together and speak civilly to each other, go into a room with a mediator and two or three sessions later, they had a parenting arrangement that they could work with and live with for the long term. They still like each other very much, but they came to something that they could work with and use. And that's because they both had the same interests. They both had the best interests of their children, front and center. And if the mediator could get them to focus on that, they could make some progress. Does anybody here want me to talk about collaborative family law? It's kind of a niche thing. Maybe what I'll do is since there was only a handful of family law folks, I'm gonna skip over this, but if you have a question about it, come and see me at the end and I'll talk a little bit about it. I'm also gonna kind of skip over arbitration. And the reason for that is that where it's done in Nova Scotia, it's often done with lawyers. My sense is that it's fairly rare to have arbitrations done with self-represented litigants in Nova Scotia. But if you wanna ask me about things like parenting coordinators or MedARB, after the session, I'm happy to stick around and do that. Yes? What is it though, I go? What is it? Okay, fair enough, of arbitration? Okay, so arbitration is where the parties decide on the process and they choose their own arbitrator. And then they use, they enter into a contract that we are gonna resolve our dispute by this process. This is what the process is gonna look like. This is who's gonna make the decision for us. And then typically it involves much less formal situations in a courtroom. It can be as formal as a court, but it can also be people sitting around a table. But the fundamental thing is the arbitrator is given the power to decide. So both sides will make their case and they've given it to the arbitrator. If they can't settle it, the arbitrator's gonna make a call. And the arbitrator's call typically is final. The rules in Nova Scotia are very, it's very tough to appeal a decision of an arbitrator if you've decided that you both wanna do this. So that's arbitration. And it has its good points and bad points. You see it mostly in labor law, but now you're seeing it more in commercial disputes as well. In Ontario, it's a big deal for family law, private arbitrations. In Nova Scotia, it's almost non-existent for family law. And who are arbitrators? They're usually professionals. They can be law professors. A lot of them are retired judges. So they're people who are used to making legal decisions and usually have legal training. Does that answer your question? Okay, great. Now I have two tips that I would be remiss if I didn't tell you about it. If you're gonna choose one of these options, there are two very, very important things to think about. One is that it's important to get legal advice before you go into one of these options, negotiating, mediating, arbitrating, certainly. And if you can't get legal advice, you should at least know that you understand your legal rights and obligations. You will have a much more effective negotiation, arbitration, mediation if you have that information going in. Now lawyers sometimes get a reputation for being deal breakers. People go and they spend a lot of time and effort and work coming to a deal. And then they bring it to the lawyer to write up the contract and make it final. And all the lawyer does is point out all the ways that it's wrong and send them back to the table. And in fact, I did that more than once when I was practicing law. Why do we do that? That makes us so unpopular at parties. But the reason we do that is because we take students in law school and for three years, we teach them to spot the ways that things can go horribly, catastrophically wrong. And then we send them out into the world to tell their clients where those dangers are. And so it's actually one of the most important things that lawyers do is we can look at a document or look at a situation or look at an agreement and spot all the ways that it could go wrong. So I think it's actually a fairly important thing. And I guess that's by way of saying that if you have the legal advice first, you know what your rights and obligations are going in, you're more likely to negotiate an agreement that when it does come to the lawyer, they don't say, ah, tear this up and start fresh. You missed 99 different things. The second tip, it's one I used in practice myself is that it's nice to make a ground rule. So before you even start, usually a mediator will say, all right, what are the ground rules gonna be? Now one of the ground rules I used to like very much is nothing is final until you've slept on it. Because in my view, if it was a good deal at four o'clock in the afternoon, it should still be a good deal at nine o'clock tomorrow morning, and if it's not a good deal at nine o'clock tomorrow morning, then you shouldn't be doing it. Because people get caught up, right? Has anybody ever been, you have to make a decision now. You have to decide, you have to buy the car, you have to buy the house, the time share, whatever. It's not gonna be here in the morning if you don't decide right now. I don't like making a decision that way. I don't think people make good decisions that way. And so what that does is that ground rule takes the pressure off. You can talk, you can think, you can say, yeah, that sounds good, but you have the comfort all the way along of knowing that if you wake up tomorrow and you think this was a terrible idea, I don't like this anymore, you're not bound with it and you're not stuck to it. It can help make the wheels move in a negotiation or remediation. Any questions about that? Okay, here's another $64,000 question. Why should I consider settling for less than my case is worth? There's some really good reasons to consider settling for less than your case is worth. One of them is that the court process is uncertain. So I used to teach the bar admission course. I taught hundreds of law graduates who were in the articling process over a period of a bit of decade. And we used to get them to do a mock trial or a mock application in court to get them to use their trial skills and see what they could do. And so what we did was I created a fax pattern that was pretty balanced on both sides and they'd go and they'd argue this case again and again and again. So the only variables here were as different students doing the arguing, facts were the same every time, and different judges making the decision. So we ran this case about 30 times before I retired it. And you know what? You would think that with the exact same facts, you get the exact same outcome, right? It's like science, right? You can't reproduce a result in science, it's bad science. Not in the legal system. What I found as a result of this case was we had every conceivable outcome. Some of the cases came down all the way 100% on the plaintiff's side. Some of them came down all the way 100% on the defendant's side. Some of them came down the middle and everything in between. Now some of that was due no doubt to the skill of the law students making the case. Some of them were better at arguing or researching than others. But I think a lot of it came down to the identity of the decision maker. Who was making the call? These were real judges by the way and senior lawyers. We tapped on the weekend to come into the court and volunteer to help the students prove their skills. But the bottom line is you just can't know what the outcome is gonna be. Judges follow precedence, but there's another case, especially from a higher court in your province or from the Supreme Court of Canada on the same facts. The result is supposed to be the same. Or they have to explain why it cannot be the same. But different judges, oftentimes the rules are not so clear. You have to interpret. Things are a little bit different. It's not quite like the other case. And their judicial independence becomes very important. Judges have to have the independence to call them as they see them, where the law is not clear. And so that's judicial independence at work, but it makes the results unpredictable. The only way to know for sure what's gonna happen in your case is to settle it yourself. Another reason to consider settling other than knowing for sure what the outcome is going to be is you know that you'll get the money. So typically with a lawsuit, if you settle it, you don't release your trial date until the other side pays up. So you have that hanging over them. If they don't pay up, if they renege on the settlement, you have a whole new legal issue. But the trial can go ahead and you can get your judgment. So if you settle, you're pretty sure whatever you settle for might not be 100 cents on the dollar, but you'll get the money. On the other hand, if you get a judgment, you have to ask yourself whether or not you'll ever be able to collect on it. The other side doesn't pay up. Enforcement procedures are complicated. They're difficult. They can be lengthy. There are lots of ways to try to avoid having to pay a judgment right up to and including bankruptcy. So it's not a sure thing anymore that you're ever gonna see a dime of what you worked so hard to get. Third reason is legal costs. We've already talked about legal costs. So unless you're in small claims court, the winning party can get some of their legal costs back. So if you're not sure you're gonna win or if there's offers that have gone back and forth which can change the rules on costs, you could end up with a great big bill and part of the other side's legal fees if you lose. Typically costs are negotiated with part of the settlement. So you'll know what the outcome is there too. Now finally, if you have a family law case involving children or if you otherwise have to keep working with the party that you're suing, it's much less destructive to relationships typically to negotiate a settlement than it is to litigate. So that's another reason to think about why you should consider settling even if it's for less than what you think the case is worth. I have questions about that. I wanna skip forward. I'm gonna talk a little bit about preparing for court but I see that we're running a little bit short of time. So I'm gonna move a few slides ahead. I wanna show you a picture of a courtroom. This is actually a Nova Scotia courtroom. I had to try hard on Google to find a Nova Scotia courtroom, but this is one. And it's set up the way that most of the courtrooms are set up. Now there's always a little bit of a variation so you can expect to walk into a room that looks like this and it's gonna look like something different. Typically the judge is at the front. The chair right in front of the judge is for the court clerk. The chair off to the side is for the witness. And then you'll see a series of tables. Usually the front one is for the person who's the plaintiff or the applicant. In other words, the person making the claim and the table behind is for the person responding or defending to the claim. Now this railing is a very important one. This separates this part of the court from the public gallery. So the public galleries where your witnesses, your supporters will sit and it's where you'll sit until your case is called. Then you come up and take your place in court. Are you interested in knowing what to call the various people involved? Any questions about that? Judges usually don't mind what you call them as long as you're respectful in what you call them. So don't worry too much about this. This is the correct way to talk to a judge in Nova Scotia but they're not gonna get bent out of shape as long as you're respectful. I'm gonna move ahead a little bit and talk about working with lawyers. This is one of the questions I promised that I would answer. Should I get a lawyer? And of course having a lawyer is not a guarantee that you're gonna get the outcome that you want. But studies show that people who have lawyers tend to get better outcomes in court cases than people who represent themselves. There are actually academics who've done significant research on this. There are studies on it, a lot of them are American. There's an American professor named Rebecca Sandfur. She looked at 12 studies examining this very issue. Do people do better if they have a lawyer? And the studies that she looked at included more than 70,000 civil cases in the United States that went to trial. She didn't include family cases because it's harder to figure out what constitutes a win versus a loss in family cases. So she was just looking at civil cases and in every single study, the people who had a lawyer did better in the outcome than the people who represented themselves. Although how much better varied enormously from study to study. So for example, one of them found that people did 19% better with a lawyer. Another one found three or four times better. And one study found 14 times better. So Professor Sandfur wondered, maybe there's some other stuff going on here. Maybe it could be something to do with how prepared a person is, how strong the case is. How do we know that it's the lawyer? So she looked at another study. This was a kind of study called a randomized trial. And so what this study did was it took a bunch of people lined up to contest an eviction notice for non-payment of rent and randomly assigned them a lawyer to argue the case for them or no lawyer. And what they found with that is that the people who were randomly assigned a lawyer were four and a half times more likely to be able to stay in their apartment than the people who weren't assigned a lawyer. In other words, it was a big deal. Does that result apply in Canada? I don't have a firm answer for you, but from the research we do have, the answer is probably. So a 2013 Canadian Bar Association report said that judges and litigants were both of a view that people who had lawyers ended up doing better in court and people who represented themselves typically had poorer outcomes compared to those who were represented by lawyers. Why is that? Why do you get a better outcome with a lawyer? What Professor Sandfur found was that it really made a difference in the more complex cases. That though in those cases, having a lawyer made the largest difference. I think another reason this wasn't part of her research, this is just my own thought and it might be wrong is people get emotional about their cases whereas lawyers can be objective. It's not their life, it's not their money. And when emotions get in the way, it gets hard to advocate for yourself and be objective. Another possible reason is that facts are enormously important in lawsuits. I teach my students that, facts are incredibly important. It pays to have a lot of attention and time and effort devoted to how am I gonna prove the facts I need to prove because the facts drive the law. But one of the things we know is one of the biggest challenges for self-represented litigants is knowing the rules of evidence which is how to get facts before the judge. In fact, judges in Nova Scotia reported that is the number one difficulty that self-represented litigants experience. They had trouble with the rules of evidence which frankly, lawyers and law students do too. They're very complicated. Non-lawyers can have difficulty figuring out what facts are relevant and which are not. Quick example, let's take a child support case where the parties have separated because one partner had an affair and left the other one for the new partner. Now the partner who got left may be devastated, may have huge financial issues as a result, may be frustrated, may have much more childcare obligations than they had before. And for them it's very, very relevant but why all of this happened. But in terms of the actual amount of child support payable, it has no legal relevance at all. And the judge doesn't wanna hear about it for that reason. So that can be very difficult too. Now having a lawyer doesn't always make a difference. A quick example from my own practice. People charged with impaired driving in Nova Scotia if there's no accident, no property damage. A lot of the judges have a certain fine that they tend to impose, goes along and there's a driving suspension too. But I used to tell my clients when I represented them, listen, I can go to court and I can represent you on this but I don't think I'm gonna get you a dollar different than what you could get if you went in there by yourself. The outcome is probably gonna be the same. You want me to go and represent you, I will. Most of them did anyway. But there are some situations where it doesn't make a difference. That said though, the bottom line, the research shows that if you can't afford to get a lawyer, you probably should get a lawyer. Okay, how do you know when you need a lawyer? Here's five situations, they're not exhaustive. High stakes is probably the biggest one. If it would really make a serious effect on your life, make a difference to you if the case went the wrong way. That's when you should think about getting a lawyer. If you're having trouble understanding what's going on. If you're too emotional to work on your case. And sometimes if a judge has told you, now some judges will tell everybody to go see a lawyer. Some of them will only tell you if they think you're struggling and you're about to have a difficult situation. But it's something to think about especially if a judge has told you, you should get one. All right, how do you find a lawyer? I have a couple of tips that you may not have already heard. So the obvious way is to get a referral. You can get a referral from the Legal Information Society from other community organizations and from friends or family members who've had a lawyer and been happy with the service they received. Now the only difficulty with that last one is that where expert services are involved, people have trouble figuring out if they got a good job or not. When I hire a contractor, I'm at their mercy. In fact, I have cracked bathroom tiles to prove it right now. I don't know if they did a good job until later and it can be the same with legal services. So one of the best ways to get a referral for a lawyer is to get a referral from another lawyer. So here's a tip. Lawyers in law firms typically have a stable of other lawyers that they can't do a case. People they respect that they're willing to refer clients to. And if you call and you ask, say I call a Halifax law firm and say, I need a family lawyer in Dartmouth. Who can you send me to? You may get one of those respected lawyers as a referral. So that's one way to think about it. And one thing you can try, now I'm gonna get everybody's gonna call up law firms asking for lawyers, but I know when I was in practice I had particular lawyers whose work I knew and whose work I liked and they were the ones I would send clients to if somebody called and I couldn't help them. All right, so what kind of lawyer should you get? You know what, legal area? I'm gonna suggest Tudor's Rule of 55. So what's that? Tudor's Rule of 55 is that the sweet spot is to choose a lawyer who does about half their practice in the area you need and has at least five years of the bar. If you can manage it, that's a great way to do it. And the reason is people who do a lot of one particular thing get very good at it. They get streamlined. They can probably offer things at lower cost. Even if their hourly rate is higher, if they've already done legal research on a point, they've already prepared a certain kind of document, it just is faster and easier. And I say five years at the bar because by that point they've seen cases through from beginning to end. They probably have encountered a situation like yours before and they're in a better shape to give you advice. When you're a new lawyer, including me when I was a new lawyer, almost everything I had to look it up and that takes time and your rate is cheaper but it does take more time until you get the hang of it and that's around about the five year mark. The other thing to consider is you have a choice about what lawyer to hire fit is really important too. So how does fit work? Is this somebody that you feel like you can work with? Now you don't have to be best buds with your lawyer and in fact you probably won't be but you have to have a simpatico way of looking at your case. So you can check for example, has your lawyer been disciplined? That's all public now on the Nova Scotia Barristers Society website. Do they seem like an organized person? Look around their office. Is it stacked with file after file? Does it look like it's organized? Does it look like it's disorganized? Are they timely for your appointment so they return your phone calls? Do they have a policy about that? How do they feel if you wanna ask questions? If you disagree with something they're recommending that you do. Those are all kinds of things that you can cover and talk with a lawyer and see if you're comfortable with what you get because one of the things the research for self-represented litigants shows is half of the self-represented litigants had a lawyer and they ended up leaving their lawyer either because they ran out of money or because they didn't like the relationship they had with their lawyer and they weren't happy with the service that they were getting. So fit can be really important. How much, oh Lord, how much do I have to pay? Typically lawyers bill by the hour and I did a very informal survey of some colleagues to find out what the going rate is in Nova Scotia and what I found was that it doesn't actually vary that much. New lawyers are charging around $175, $180 an hour. Senior lawyers with 20 years or so of experience are charging around $350, $360 an hour and one lawyer at a big firm who shall remain nameless told me that they top out, this is probably some of the highest rates in the province, they top her out around $450. Although I know that some personal injury lawyers charge more with a different kind of billing arrangement called a contingency fee agreement, now that's an awful lot of money. I used to say when I was a new lawyer I couldn't afford me and I couldn't afford me. So is it worthwhile to pay more for an experienced lawyer? The cost about double and short answer is probably yes. If you think back to my rule of 55, someone can do something a little faster, they might have encountered the same thing before. So even though they charge more, they might be able to make up for that by doing something with fewer hours of work. And the very best sweet spot is to find yourself a lawyer who works in a firm where you have two options. You have a senior lawyer, so if things get complicated and the going gets tough, you have access to their expertise, but the easier stuff, the straightforward stuff can be delegated to a junior lawyer who charges much less and it's probably gonna take the same time. So that's the best thing to look for if you have a choice about which lawyer or which law firm you retain. I now got some stats here from the 2015 Canadian Lawyer Legal Fees Survey. The first thing you'll notice, this is all uncontested matters. Prices are high, but they're not astronomical. This is online if you wanted to find it later. Here for family law cases, what you'll see right away is the prices get high as soon as things get contested. And if you need a trial, that's where the most expensive legal fees are. Now I use here, Canadian Lawyer does fees for across the country. I used the averages for centers under 500,000 people, which would be something like Halifax. The rates in Toronto, Vancouver are obviously higher. Here's some rates for civil trials. They're fairly similar, so a five day or seven day civil trial is in the ballpark with a five or seven day family law trial. ADR, they're talking here about fairly major cases. If it takes three days, I would not say, say in a family case, if you needed three days of mediation, you would be nowhere near $19,000. Mediators here in Nova Scotia are charging in the $100 to $200 an hour range, plus if you had legal advice on the way going in and then coming out, I don't think you'd get to $19,000. But that was the number in Canadian Lawyer Magazine, so that was the number that I used. Are there other ways to pay? Yes, there are. So if you're talking to a lawyer about paying for legal fees, alternative payment arrangements, I used to use something called a direction to pay when I was in practice. If I represented a client in, say, a family matter who had assets, they just didn't have cash on hand. We knew that they were gonna get a property division at some point when the case ended. My firm, in certain cases, would let me defer my bill, and then when the case settled and there was the property divided, my client would get a big check and from that check would be taken the legal fees. Some lawyers are willing to do that. Some aren't. Contingency fee agreements is another one. Now these are seen almost exclusively in personal injury cases, but they enable a person who couldn't otherwise afford a lawyer to have a lawyer to make a claim. And the deal is that they sign a contract or an agreement that when the case finishes, they will pay a certain percentage of whatever they get to the lawyer as a fee. And if they lose the case, the lawyer will agree to take nothing. And then finally, class actions, which are a specific area that enable people to get redressed where a large number of people have suffered similar harm. Usually you'd have a lawyer in that. I don't know of any self-represented litigants in class actions. So I mentioned it just as an alternative way that legal fees get paid. Now I do have some tips for an effective lawyer-client relationship and we're running out of time though, so I think what I'm gonna do is make the point about summary advice and then I'll just put the tips on the slide and you can ask me about the minimal flip to questions. So first off was summary advice. Summary advice is kind of the main way that self-represented litigant can get the legal advice to answer the question about where is this freaking golden key that everybody wants me to find? They can be 15 minutes, they can be an hour. Sometimes you can get multiple appointments to answer questions. And the key to making the most of these appointments is to write out the important stuff about your case, type it if you can, keep it on two pages, no more. And if you can, give it to the lawyer in advance to read. So when you have that 45 minute or 60 minute meeting, they are up to speed on what your case is about, what stage it's at, what's going on so far, and what represents a good outcome for you. And then you can spend the hour that you have together hearing the lawyer's thoughts about it and having your specific questions answered. The other thing you do, write down all your questions in advance from most important to least important and go through them sequentially. That way you have the highest chance of getting your most important questions answered. I have 10 tips for keeping your legal fees down. These are drawn straight from my own law practice, so I'm gonna put the first five on. We'll switch to question mode and then I'll flip the slide at some point so you can have a chance to read the last five. But let's take questions. Does anybody have questions about working with a lawyer? Yeah. It was a slide earlier that you skipped over tips for law court. Yeah. Addressed me and things like that, would you mind? Yeah, I can certainly put that one back on and we'll talk about it. I know that was, in the self-represented litigant studies, how to behave in court is one of the top anxiety producing things for self-represented litigants and it's something that a little bit of general legal information can really help with. So yes, we'll go back to that slide. Any other questions? All right, let's go to the other five tips. Has everybody gotten these ones? This is all gonna be on YouTube anyway in the next few days. I'm happy to answer questions or elaborate on any of these or tell you why it's on my top 10 list of tips. Any questions about any of these? Last one, some legal fees are tax deductible? Yes, some legal fees are. Which legal fees are tax deductible? They're probably, I wonder, Canada Revenue Agency has done a bulletin. They might have a bulletin online that you can read. There's certain, it's not for every kind of case, but there are certain fees that are deductible in family law cases and in business in particular and so you can look at that and or you can ask your accountant or your lawyer, hey are any of these fees tax deductible and they can tell you. Any other questions about the tips? Folks want me to go back to courtroom etiquette and behavior. I'll go back to that. As we read those, does anyone have questions about proper courtroom etiquette or what to do in court? Yeah. You would be surprised though, especially when people get frustrated. And you know what, a little bit of respect goes a long way. There's a judge who used to tell my students, we'd go to see her to talk about courtroom etiquette from their point of view and she remembered it was a child protection case where one of the parents involved in the case, she said she thought he only had one shirt and tie because he came to court every day for two weeks and the same shirt and the same tie and she said that shirt was freshly washed and pressed and that tie was perfect every single day and she had an enormous amount of respect for the fact that he took the time to do that, the fact that he showed up and he showed up in a respectful way, ready to participate in the proceedings. She noticed, did the result differ? I don't know, but she remembered that years later if he had done that. And all it was was putting on a clean, pressed shirt. Yeah, question. The couple layers to your question. So there is a complaint process that you can complain about a judge to the Canadian Judicial Council and that's where a panel of judges and others will decide whether the judge has followed the rules or not about their code of conduct and behavior. But judges have a fair amount of latitude in terms of how they run their cases and how they run their courtroom. That's part of judicial independence as well. So there's different things to balance there. From the judge's point of view, I think sometimes they're human like everyone else and it's easier for the judge if both sides have a lawyer because they can talk the same lingo and the judge, the lawyer usually will be more attuned to what facts are relevant, what rules of evidence apply. But judges are getting more and more accustomed to having cases with self-represented litigants. Some of them are better at handling it than others. But most of them spend a lot of their time talking about legal procedures and trying to make sure and they're very, very passionate and committed about this, trying to make sure that the hearing is fair and that all of the relevant points come out. So one of the, on the other side of that is sometimes when I was representing a client and the other side was self-represented, my client would get frustrated because they'd feel like the judge was helping the self-represented litigants. Well, I'm paying for a lawyer and the judge is helping this person. It's not costing them anything. And so there's that perspective as well and the judge has to be very careful to make sure that the hearing is conducted in a fair way and it seemed to be fair, hopefully by everybody involved. Another question. If you're using case law, do you have to provide the full document? Can you use a sorry and refer to the case in the Supreme Court? So what exactly do you take for documentation if you're using case law to support your claim? There are actually rules about this now. Civil procedure rules and there might be a practice direction which would also be with the civil procedure rules on the court's website. And if the case is short, I'd say give them the whole case. But if it's one of those really long Supreme Court of Canada cases and the only paragraphs that are relevant are paragraphs 75 to 79, it's acceptable to give the head note for the case. So that's the summary at the beginning, not something that you've drafted but something that goes with the case and then the relevant stuff. What's not acceptable is if there's something in the case that hurts you and you kind of leave it out because you don't want the judge to know about that. So as long as you're being full and fair with what you're giving the judge and you don't want to give them 500 pages to read where really only two pages is what's relevant, that's acceptable now in court. Oh, that's a really good question. For lawyers, sometimes we can hone in on that a little bit more easily. That, aha, this is the relevant part. All I can say is that if the judge gets the sense that you're trying to hide something or do something that's sneaky, they're not gonna trust you anymore and that's gonna be bad for your case. And same thing with lawyers. If the judge gets a whiff that the lawyer's being sneaky in any way, shape, or form, they're not gonna trust them anymore. So you just wanna make sure that you're doing your very best. It's not to say that people don't make mistakes from time to time, but there definitely shouldn't be in something in there that you're purposely hiding from the court. I think we have two more questions and that's about all we have time to take. So I'll hear you first and then you. From a margin of 5,000, that's associated with harmony. The way to do that, I agree. Yeah, I'm just wasn't sure how it would work. That's a fascinating point. So what's being asked is about legal insurance and legal insurance is just barely kinda hit the radar in Canada. It's not very common. Some employee assistance programs is almost as close as it gets. I think the military has a limited form of insurance that will give you consultations with a lawyer up to a certain point. In Europe, legal insurance is much more common and so insurance companies wanna know about risk but I'm guessing that there's probably gonna be rules around what they can consider is a legitimate contribution to the risk and what isn't. So you say, well, you got married and we know that people have a 40% lifetime risk of divorce if they get married, so up go your premiums because you might need a lawyer if you separate and that sort of thing. But Canada's not even anywhere near trying to make those. I'd be happy to see the advent of legal insurance and it's one of the goals being talked about with law reform but it's not even anywhere near fruition yet. And last question. That is a little bit trickier. So one of the potential grounds of appeal in a case is that your counsel was incompetent and there have been cases that succeed on that basis. They're not easy to prove. Sometimes it's just a bad outcome because it's a bad outcome. So it can be a ground of appeal. I would suggest that's definitely when you wanna get legal advice about before you decide to pursue. Another thing there is if you think the lawyer has done a bad job, they might have done something that either is negligent and you can make a claim against the lawyer's insurance policy and there's a Leon's, which is the Lawyers Insurance Association of Nova Scotia that insures Nova Scotia lawyers if they make a mistake. So you could explore with them whether or not you have a claim against your lawyer. And the third thing is that if you think the lawyer's fees are too high and not fair for the work that was done, you can have the bill what's called taxed and that's in the small claim scores. You can say, hey, I got billed $10,000 and I don't think you did that much work on my case. And then so the adjudicator in the small claims court will take a look at the bill, hear from both sides about what was done and then make a decision about whether or not the bill is fair. So there's kind of three different ways to deal with it depending on what outcome you want. If you want your case reopened, getting your bill adjusted is not gonna help. So you'd have to think about that and that's a good place to get legal advice on for sure. That's all we have time for for questions today. I'm willing to stick around for a few minutes if anyone wants to chat about something we haven't had a chance to cover. Thank you so much for coming to the last mini-law of the academic year and I'll encourage you do grab a handout on the way out, I have four and I hope that they'll be useful to you and good luck with your cases. Thank you. Thank you.