Civil Litigation

Current legal practices, procedures must be streamlined: Lesage

By Kirsten McMahon, Managing Editor

It is time to acknowledge that many current legal practices and procedures are out of line with the value of the interests at stake and the profession must take steps to address and streamline them, Law Society of Ontario (LSO) bencher candidate and Toronto litigator Michael Lesage writes in The Lawyer’s Daily.

“As Ontario’s lawyers set to elect a new slate of benchers to Convocation, the oft-discussed, seldom-addressed issue of access to justice has again entered into the conversation. Most agree that access to justice is a worthy (if aspirational and ill-defined) goal, that must be advanced and encouraged,” writes Lesage, who practises insurance and business law, personal injury, malpractice, and other liabilities at Michael’s Law Firm.

“However, the facts on the ground tell a different story, that of people being unable (or unwilling) to hire lawyers or to effectively assert their rights on their own. Conversely, lawyers continue their exodus from private practice, especially within the small-firm setting (this despite the fact that more and more lawyers are being called to the bar),” he writes. “Clearly, something is amiss.”

Lesage says he believes that contested family law proceedings provide a microcosm of the justice system at large — namely, that the procedures in place are disproportionate to the interests at stake and/or the financial resources of the parties involved.

“For example, ignoring emergency or other motions, family court procedures include an application and answer, attendance at a mandatory information program, a first court date, case conference, settlement conference, trial management conference and finally trial. Of course, additional time and expense must be allocated to deal with the vagaries of the Ministry of the Attorney General, the proverbial troll blocking and obstructing the courthouse doors,” he writes in the legal publication.

“If we assume that family lawyers bill at the average efficiency of a small-firm lawyer (20 per cent of each workday spent on collected billable work), it becomes apparent that one family lawyer can handle one contested divorce for every five weeks of full-time work, or 10 contested divorces per year,” he writes.

From that revenue, Lesage says a lawyer must eke out a living, pay for their office and expenses, along with around $5,000 in LSO and LawPRO fees.

“Looked at another way, it takes 10 weeks of lawyer time (per couple) to work out the division of property, spousal support, child support and custody for a separating couple,” he writes. “Despite this, our government wonders why 58 per cent of family litigants are self-represented, and it decides that the solution is to increase the supply of legal service providers, rather than streamlining or simplifying an overly time-intensive process.”

Lesage says while family law provides the most egregious example, access to justice is becoming an issue within the personal injury field as well.

“The most clear-cut example would be a case of medical malpractice. Unless the injury is catastrophic (i.e. a botched knee replacement just won’t cut it), an injured patient will struggle to find a lawyer willing to advance their claim. The reason for that is not hard to discern,” he writes.

“In almost every personal injury case, lawyers are required to advance both their time, along with all expenses necessary to prosecute the case. In medical malpractice cases, time is measured in the hundreds of hours, while expenses are typically in the high tens of thousands of dollars, and the outcome at the end of the day is at best doubtful (i.e. a better than 50 per cent chance of outright loss),” Lesage continues.

He says the profession now faces a choice — continue doing things the same way while hoping for a different outcome, increase the number of legal service providers while driving down lawyer incomes, or recognize that many current practices and procedures are out of line with the value of the interests at stake.

“At the end of the day, it is important that lawyers spend more than 20 per cent of their workday on paid work, and likewise, that more lawyer time is spent engaging in work that is of value to their clients,” Lesage concludes.

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