The Real Cost of Litigation: Key Questions for Your Civil Lawyer
By Paul R. Meyers, Civil Mediator
If you've ever wondered whether pursuing a civil claim is worth the time and expense, you're not alone. Sean Fine’s recent article in The Globe and Mail provides a compelling look at the civil justice system and underscores key considerations that those new to litigation might overlook. Here, I’ll outline some of these notable takeaways and explain why they matter when you're deciding on the best path forward. This is not intended to deter you from seeking legal help, but rather is meant to help you ensure you go into any civil litigation matter with both eyes open.
Winning Isn’t Everything: You May Still Lose Financially
TV shows and movies often paint a glamorous picture of courtroom victories, where winning means walking away with a windfall. While there are cases where a significant payout may happen, the reality is more nuanced. A win doesn’t guarantee that you’ll recover all, or even most, of your legal costs and fees. More often than not, you’ll only recover around 40% of what you paid, potentially leaving you to cover a substantial portion of the bill, even after a successful outcome
The Wait for Your Day in Court
Canada is currently facing a significant access to justice crisis. The BC Supreme Court is severely overbooked due to a critical shortage of judges and a backlog of pending cases. Waiting at least 9 months for a trial date is common, and it’s not unusual for this to extend to 2 or even 2.5 years. Even when you do secure a trial date, serious criminal cases often take precedence over civil cases, no matter the urgency of your situation. This could result in your trial being postponed (known as an 'adjournment' in legal terms), leading to even more delays.
Pre-Trial Motions and Hearings: The Costs Can Add Up
Pre-trial preparations are often more intensive and costly than people expect. Your lawyer will dedicate significant time to preparing for your trial and will block out their calendar to ensure they are available for any scheduled court appearances. It is important to understand that you will be responsible for covering all associated legal costs and fees provided in your lawyer’s bill.
In the event that your trial is delayed, be sure to ask your lawyer about any extra fees and costs. Here are a few things to keep in mind as you navigate this:
- Re-Preparation and New Trial Dates: Should your trial be adjourned and rescheduled, you’ll likely be billed for your lawyer’s time to re-prepare and set new trial dates. While the courts will make every effort to avoid repeat adjournments, it’s not entirely uncommon, and the wait for a new date may be shorter but still significant.
- Pre-Trial Motions and Hearings: In the lead-up to your trial, there may be multiple pre-trial motions and hearings that your lawyer will have to prepare for, which comes with added fees and costs.
Common pre-trial motions and hearings include:
- Examinations for Discovery: This is a pre-trial process where both parties have the opportunity to question each other under oath, usually scheduled on different days. It’s an essential step that allows each side to gather information and understand the strengths and weaknesses of the case. It also helps set the stage for trial strategy and can even encourage settlement before reaching the courtroom.
- Motions for Production of Documents: These are formal requests made by either side to obtain specific documents relevant to the case, such as financial records, lease agreements, correspondence, or other pertinent evidence. This key part of the discovery process promotes transparency and fairness, helping to build or challenge a case, and often comes with additional preparation and costs.
- Preparation of Affidavits for Pre-Trial Hearings or Motions: Affidavits are common in civil proceedings and serve as written statements taken under oath to present facts and evidence to the court in support of your application. Your lawyer will draft and compile these affidavits, including detailed and relevant information to substantiate the statements made. This process can be time-consuming and may involve additional costs for research, drafting, and revisions. However, there may be ways for you to assist with the preparation to mitigate some of these costs. Discussing with your lawyer how you can assist in the preparation process can help manage expectations and potentially lower costs.
- Settlement Conference Costs: In BC, a settlement conference is a meeting where the parties involved, along with their lawyers, come together in the presence of a judge or mediator to try to resolve the case before it goes to trial. This process is designed to facilitate open discussions about potential settlement options and encourage an agreement without the need for a full trial. If the conference is held outside of the BC Supreme Court, your lawyer’s preparation and attendance fees, as well as your share of the mediator’s fees (typically 50%), will be part of your bill. While settlement conferences can sometimes save costs in the long run by preventing a trial, they do require an initial financial commitment.
The Cost of Expert Testimony
It is common in civil matters to rely on expert witnesses who may be called upon to provide evidence in court or throughout the pre-trial process to support your case. These experts, qualified by the court, are unique in that they can provide opinions based on their specialized knowledge. Examples include mechanics, doctors, engineers, appraisers, carpenters, repair professionals, psychiatrists, and psychologists. Understanding the role and costs of expert witnesses is helpful for managing your expectations and budget, as their involvement can be expensive.
- Fees and Reports: Expert witnesses often charge significant fees for attending court and providing written reports ahead of the trial. While you typically need to pay these fees upfront, you may be able to recover part or all of them if you win your case. However, if you lose, you likely won’t be reimbursed and may also need to cover the other party’s expert witness fees, if applicable.
- Out-of-Town Witness Expenses: In some cases, witnesses must travel from out of town to attend court, and you’ll be responsible for associated travel or accommodation expenses. If you win, these costs are usually reimbursed. However, if you lose, you may not only need to cover your own witnesses’ expenses but also the travel costs for the other party’s witnesses if they have to travel and stay in the city.
Waiting for a Decision: Understanding Reserved Judgments
Judges often don’t render their decisions immediately after a trial concludes. Instead, they typically reserve judgment, which means it can take anywhere from 3 to 6 months—or sometimes longer—before the final decision is provided. This waiting period can be stressful and uncertain, so it’s important to be prepared for this potential delay in your case.
Impacts on Your Daily Life
Before pursuing any civil claim, it’s important to consider whether you and your family are prepared to handle the emotional strain that often comes with a long and highly charged process. The stress and uncertainty can be significant, so discussing this with your lawyer can help set realistic expectations
Participating in trial days, settlement conferences, examinations for discovery, and pre-trial motions often means taking time off work. While your lawyer may be able to represent you at some of these proceedings, there are certain appearances that require your presence. This can result in lost income and disruptions to your daily routine. Setting clear expectations with your lawyer is essential, and it may also be necessary to speak with your employer and family to ensure they understand what will be required of you throughout this process.
If you are the plaintiff, another key step is to consider (or have your lawyer verify) is whether the defendant has the means to pay the amount you are claiming, should you win. As the old saying goes, 'you can’t get blood from a stone'. Defendants who are 'judgment proof' may lack the assets or funds to fulfill the payment, even if the judgment is in your favour. In such cases, it may not be in your best interest to proceed, knowing that you could spend a significant amount of time and money pursuing an uncollectible claim.
Finally, whether you win or lose, there is always the possibility of an appeal. This can mean further expenses and extended waiting periods, which can prolong the impact on your time and finances.
To reiterate, this article is not intended to discourage you from seeking legal representation or pursuing litigation. Sometimes, justice can only be achieved through a rigorous court process. However, taking the time to ask questions and empowering yourself with information will help you gain a clear understanding of what to expect. This way, you can have open and honest conversations with your lawyer to determine if litigation is the best path for you.
If you are considering resolution options for your civil litigation matter, mediation is an effective path to explore. This process allows you and the other party to engage in thoughtful discussions facilitated by a neutral third-party mediator, helping you work toward a resolution. If you’re interested in learning more about mediation and whether it may be right for you, we invite you to book a free 30-minute consultation. Our mediation services can provide a balanced perspective and help you explore effective alternatives to traditional litigation.
