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Common sense is usually your best defence

How do you win in court? It starts with selecting the proper lawyer.But beware — not all lawyers’ interests are aligned with those of theirclients.

How do you win in court? It starts with selecting the proper lawyer. But beware — not all lawyers’ interests are aligned with those of their clients. Here are four cautionary tales that I’ve gleaned from the employment law trenches:

Advertising: A lawyer’s search engine rankings have nothing do with his or her legal skill.
Rather, Internet-based advertising allows lawyers to pay for and then snatch up high rankings on Google and Yahoo — they’re not indicative of the quality of the lawyer, the firm, or the actual number of visitors to the website. Similarly, there are no rules limiting lawyers without much experience in employment law from professing that they practice it, on their websites and in the media — and they do. For instance, Toronto’s Yellow Pages has ads for over 30 lawyers who practice “wrongful dismissal.” However, many of those same lawyers also appeared when I searched for “family lawyers,” which wasn’t surprising at all. The reality is that there are few exclusively practicing employment lawyers. Most just dabble in the area, despite advertising otherwise. Employment law is specialized — if your lawyer misses a critical issue or precedent, it could subvert your case. Inquire what percentage of the lawyer’s time is spent solely on employment law matters — and don’t pay for his or her education.

Free consultations: Some lawyers advertise “free” consultations, but these can be a sham.
A free consultation is their opportunity to assess whether they want to take your case but not your opportunity to learn about the risks and costs of proceeding with one. Invariably, you then pay for that advice afterwards. Considering the extra time the lawyer will ultimately charge you after your initial meeting to properly review your file, your initial consultation wasn’t “free” at all.

Oral agreements: The biggest problem that most people face with lawyers is their billing practices.
This is because the regulatory bodies that oversee lawyers have few restrictions governing how they charge for their work. As a result, most lawyers are left to their own devices. Unfortunately for the clients, these devices often are unaligned with their interests. One common agreement that is used, an oral contract, isn’t much of an agreement at all. Here, lawyers bill ad hoc, based on any arbitrary combination of the time they spend on the file or the results obtained. Where the file requires more work than anticipated, the client pays for the lawyer’s time, regardless of the result. But where there is a quick settlement, the client is billed based on a percentage without any regard to the lawyer’s effort or time. In effect, the lawyer then has it both ways. If asked, a lawyer should predict to the best of his or her ability the potential costs of your case and specifically how you will pay for his or her time. Then confirm that arrangement in writing.

Common sense: It goes without saying, but your instincts are usually your best self-defence.

– Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com

 
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