If you are involved in a lawsuit, the single most important decision you will make is which lawyer you will hire to represent you. You will rely on your lawyer to give you advice and to get the best possible result. It is critical that you pick the right lawyer.
Lawyers love to put pictures like this on their websites. Law libraries are filled with volumes like these, containing hundreds of thousands of decisions from judges following trials.
In every single one of those cases, somebody won and somebody lost. That is the way that our justice system works.
What you might not realize is that, in almost every one of those cases, the losing party thought that they were going to win. People do not spend the enormous amount of time and money on trials unless they think that they will be successful. And they relied on their lawyer to tell them if they were going to win or lose.
In almost every case, one of the lawyers was wrong.
The Most Important Thing to Look For in a Litigator
No lawyer can guarantee that they will win every case, or even that they will win your case. Litigation is too unpredictable - we can't control which judge or jurors will decide the case, what strategy the other side will use, or how witnesses will behave in the witness box. If a lawyer tries to guarantee your result, be sure to get that in writing.
Having said this, you can improve your chances by hiring a lawyers with actual experience in the courtroom. Experienced trial lawyers are more likely to be able to give you a realistic assessment of your case, and are more likely to be able to get the best possible result.
What If I Want to Settle?
Most civil cases settle long before trial. You might think that you don't need a trial lawyer, because you want to settle your case. In fact, some lawyers even advertise that they are great at settling cases.
The problem with this is that the threat of trial is the reason that cases settle. If you are the plaintiff, your case will only settle if the defendant agrees to pay you before trial. The most important reason that a defendant will agree to pay is to avoid having to go to trial.
If your lawyer has little or no trial experience, the defendant may not take the threat of a trial seriously. In that case, they may refuse to settle the case, or may only offer much less than your case is worth. Sophisticated defendants like insurance companies and mutual defence organizations keep track of the lawyers who sue them, and know which ones will take a case to trial, and which ones will give up. You may end up taking much less than your case is worth.
The same thing is true if you are the defendant. The uncertainty of trial is the most important factor in convincing the plaintiff to discount his or her case for settlement purposes. If your lawyer never takes cases to trial, the plaintiff's lawyer will expect that eventually you will settle the case, and you will end up paying more than you might have.
How Do I Know If a Lawyer has Experience?
In a recent article the Toronto Star reported that a well-known personal injury lawyer - one who advertises on television, radio and in print all over Ontario, describing himself as the "toughest" - has never taken a single case to trial. Not even one. Of course, you would never know this from his advertisements. Unfortunately, he is not unique.
The reality is that many lawyers who advertise themselves as litigators have little or no trial experience. This is true all over Ontario, from Bay Street firms to small towns. For clients, figuring out whether a lawyer has real experience can be a challenge. Here are some suggestions.
Ask Specific Questions
The easiest way to find out if a lawyer has trial experience is to ask. It is important to be specific. Ask questions like:
- How many cases have you taken to trial (or arbitration)?
- What was your involvement? Were you lead counsel? (there is a big different between being the lead counsel and a junior responsible for carrying boxes back and forth from Court)
- What kind of cases have you taken to trial? Are they like my case?
- What happened in those cases?
Ask as many questions as you need to feel comfortable. You may want to ask the lawyer to answer these questions in writing.
Ask Another Lawyer to Check
Another option is to ask another lawyer to check for you. Lawyers have access to legal databases that allow them to search other lawyers. This is often the first thing that is done when a new lawyer shows up on a lawsuit (and the way that the other lawyers will know if your lawyer is not experienced). If you know another lawyer, you might ask them to search for you.
There are a couple of limitations to this approach. First, most lawyers will charge a fee for this kind of search, particularly as the legal databases are fairly expensive. Second, certain types of cases will not show up. For example, private commercial arbitrations will not be listed. Similarly, many jury trials and smaller cases were not reported, and so will not show up in this sort of search. You should not conclude that this kind of search is exhaustive, but it will give you an idea of the sort of experience a lawyer has.
The last option is to check CanLII, a free online database of Canadian decisions. You can find CanLII at https://www.canlii.org.
When you look at CanLII you will see a page that looks like this:
Enter the lawyer's name in the first box and hit Enter. This will return a list of all cases which include that name.
There are a few things you should be aware of if you are looking up a lawyer using this method. First, the CanLII database is not nearly as complete as the commercial services available to lawyers. For example, as of March 27, 2017, searching "Ryan Breedon" returns 48 results on CanLII, compared to 100 cases and decisions on WestlawNext Canada.
Second, the search is likely to turn up cases that have nothing to do with the lawyer you are looking for. Searching "Ryan Breedon" on CanLII turns up a case called R. v. Williams, a criminal case from Alberta which apparently involved a Constable Breedon and has nothing to do with Ryan. The more common the lawyer's name, the more likely that this will be an issue.
Third, as with the legal databases mentioned above, some cases will not turn up in a CanLII search. Private arbitrations are never reported, unless the result was appealed to Court. Jury trials and other trials may not show up in a CanLII search. Even if a case was reported, the lawyer may not have been listed in the decision for some reason. As with the commercial searches, a CanLII search may not be exhaustive.
Finally, many of the results will be decisions from motions or other procedural disputes, and not from actual trials. It is important to look through the results to get a sense of the lawyer's actual experience.
Are You Checking the Right Lawyer?
If you are researching a lawyer's experience before making a decision to hire him or her, make sure that you are searching the lawyer who will actually be handling your case. Many firms have one or two experienced lawyers, and a number of junior lawyers with little to no experience. If your case is going to be handled by one of the junior lawyers, you need to know that.
Of course, there are other factors you should consider when deciding which lawyer to hire. These include the lawyer's fees, the lawyer's reputation, and whether you feel comfortable with the lawyer. In the coming weeks, we will have articles touching on these and other important considerations.
If you have any questions or would like some more information, please let us know.