Settle, Don't Fight! It will cost you even if you win it all!

Often emotions run so high during the settlement of legal issues that people say they're willing to do whatever it takes to win, but many are finding that the price of such determination is just too high.

A three-day trial is estimated to cost more than $60,000.00. Such fees are at the heart of much financial and emotional devastation, even for those who win. Is bankruptcy a reasonable price to pay for "sticking it" to the other party? Does justice necessarily come from the Court?

Some try to avoid the high costs of trials by representing themselves. In one such case, the self-rep was jailed for contempt of court because he didn't know how to handle the job. In another case, a woman who was unfairly fired by her employer won her case and damages but the whole ordeal took more than ten years and ruined her career.

Ontario Chief Justice Roy McMurtry believes that trials are restricted to the "relatively affluent" by virtue of the costs associated with going to court. "Justice for all,” the Charter principle, may become meaningless if "all" can't access it.

Even businesses are finding access to Court difficult. Judges and lawyers have doubts about the cost of trials; some even argue they couldn't afford to hire themselves for the task.

Part of the expense includes the fact that many litigators are afraid of not doing everything for their clients. As a result, they consider too much paperwork and call too many witnesses, even when they're working pro bono; the trials become unnecessarily lengthy.

Some measures to rectify the situation have serious consequences. For example, the advent of class action law suits, the introduction of contingency fees, and the use of mediators often function to simplify trials and compromise procedure. The most recent amendment to the rules of Court allow people to use lawyers for only part of their cases; they do the rest. You can imagine the problems such an approach might present.

The woman who was fired and spent more than ten years fighting her case paid $200 an hour for her lawyer (the average for Ontario at the time) with the estimation that the whole case would total $2,000-$3,000 plus GST and disbursements. Her total for just the hearing before an arbiter totalled $31,965.47. It gets worse. When the woman ran out of money, her lawyers told her the principle was justice, not money. Easy for them to say, their bill ended up totalling $75,000.00. The story ends with the woman in bankruptcy, a change in lawyers, and after 13 years, she'd paid $250,000.00 and was left with about $100,000.00, and the knowledge that she never would have done it if she'd known at the beginning what it would have entailed. So much for it being about justice!

Many might think this would never happen to them, but it's easy to let emotion and the oftentimes false hope that just a little more expense will produce "victory.” One must ask, though, what is it really worth? Settle and don't find out.

Revised March 2015