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Manage client expectations before motions, case conferences

When preparing for case conferences and motions, it’s important for lawyers to stay up to date on Family Law Rules and specific practices for each court, Toronto family lawyer Erin Chaiton-Murray tells AdvocateDaily.com.

With ongoing amendments to the Rules and local practice directions often varying from court to court, these are essential tips for any family lawyer — both new or experienced, says Chaiton-Murray, partner with Fogelman Law.

But possibly the most important pointer of all is to manage client expectations through preparation, she says.

“I can’t emphasize enough the importance of properly preparing the client for the conference,” Chaiton-Murray says. “Managing their expectations improves the chances of a successful appearance and reduces the likelihood of having a disappointed, confused or frustrated client.”

Chaiton-Murray provides an in-depth primer on preparing for motions and case conferences in a paper she recently presented to the Law Society of Ontario’s Family Law Refresher.

She says the topic applies to just about any family lawyer working through the court process because every matter requires a case conference on initial attendance.

“It’s the first time to address the matter in court and for parties to see a judge, so when used properly and when everyone is prepared, it can be a useful tool,” Chaiton-Murray says.

Case conferences are more casual proceedings than motions or a trial and take place in either a court, a conference room or a judge’s chambers, she outlines in her paper.

“However, the informality of a case conference does not mean that it should be treated as an inconsequential attendance,” Chaiton-Murray writes. “The case conference can often be a useful attendance where partial or full settlement is achieved, or alternatively, a concrete timetable for moving the case ahead is established.”

Since the time for case conferences is often limited, she suggests working with opposing counsel to ensure sufficient disclosure has been provided prior to attending. The judge may also choose to narrow the issues, Chaiton-Murray says.

As outlined in the 2018 amendments to the Family Law Rules in 17(4), she says it’s also important to attempt to reach a settlement even before attending the case conference.

Chaiton-Murray suggests taking time to review what orders a judge is permitted to make, allowing the lawyer to determine how realistic a client’s goals may be. As outlined in Rule 17(8) the judge can order a range of things from document disclosure to a settlement conference to alternative dispute resolution.

When it comes to client preparation, she provides a simple list to help set the stage for a successful outline, including what to expect in court, from location to what to wear, a suggestion to bring moral support if necessary, and how much time they should expect to spend in court.

“Before speaking with your client about the goals they hope to achieve at the case conference, it is useful to be reminded of the orders a judge is permitted to make,” she writes.
“This refresher will allow counsel to determine whether the client’s goals are realistic and obtainable.” Rule 17(8) sets out the orders a judge may make at a case conference. When it's over, she suggests sending a written summary to the client.

For motions, Chaiton-Murray similarly emphasizes the importance of having a good understanding of the relevant rules and required timelines. Again, she points to recent amendments to the Family Law Rules.

“Preparation is an integral step for the success at a motion,” she writes. “Counsel must be well-versed in the facts of the case, their client’s position and materials, the opposing party’s position and materials, as well as the relevant statutes and case law. In oral argument, counsel must be prepared to answer the judge’s questions quickly. This requires assessing the weaknesses of your case beforehand and preparing answers to anticipated questions.”

In Toronto, the court has a practice direction requiring a factum to be delivered on every motion, she adds.

As always, Chaiton-Murray says any opportunity to settle before proceeding in the court process should be considered, as this is always the best option for the client.

“The goal is always to work towards resolving some or all of the issues at every stage of a case,” she says.

To Read More Erin Chaiton-Murray Posts Click Here
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