January 31, 2009

How to Prove Your Case: Rules of Evidence

There is a great free seminar for those of you with upcoming court cases called How to Prove Your Case: Rules of Evidence, put on by the People's Law School. No, its not some fly-by-night internet law school advertised on late time television. The People's Law School is a non-profit organisation dedicated to educating people about the law. The group was founded by some UBC law students back in 1972, and has grown considerably over the past 30 years. Here are the details for the seminar:

Tuesday, February 24, 2009
6:00 p.m. - 8:00 p.m.

People's Law School
150 - 900 Howe Street
Vancouver, BC
Registration Phone #: 604-331-5412
Language of Presentation: English

Check the website for other free seminars on topics including wills and estates, starting a small business, and ICBC and personal injury law.

January 28, 2009

Free Law Textbooks

The common law in Canada has developed from a painstaking process of parsing long court decisions and extracting key principles which are then applied in the next case. For self-represented litigants, finding these principles can seem like looking for a needle in a haystack.

Wouldn't it be nice if someone had already taken the trouble to assemble the basic principles on a legal issue and summarize them for you in a few pages? Legal textbooks do just that, and they are an excellent starting point for lawyers and non-lawyers.

The problem is that legal textbooks are hard to find, especially for you live in a rural area. Because law textbooks are so specialized, they are rarely found in public libraries and bookstores. They are also extremely expensive when they are offered for sale, often costing hundreds of dollars per book (just ask any disgruntled law student in her first week of classes).

However, thanks to Google, the legal textbook you need may be available for free online. Simon Fodden, a blogger at Slaw.ca, has created a library of Canadian law books at Google Books. A convenient feature of Google Books, which gives it an edge over "real" books, is that you can enter search terms to take you to the exact page you need. The downside is that some of the books have a limited preview which means that only a portion of the book is available. Still, if you only need a few pages on a particular topic, you may be in luck.

If the book you need is not available on Google Books, you have some other options. If you live in the Lower Mainland, the B.C. Courthouse Library has an excellent collection of textbooks which are available for use by the public in the library. The reference desk staff are extremely helpful and patient and you can photocopy the pages you need.

You can also buy legal textbooks at the UBC Bookstore or the UVic Bookstore. A better option may be Irwin Law, which publishes summaries of many legal topics in easy-to-read, plain language, relatively affordable softcover books available for purchase online.

However you find them, legal textbooks are an excellent starting point for understanding your legal issue and pointing you to the case which will hopefully help you win yours.

January 26, 2009

How to Swear an Affidavit for Cheap

Many family and civil law applications require evidence in the form of affidavits, which are sworn statements containing a person's evidence. As affidavits are essentially testimony in written form, they must be sworn under an oath which is similar to the one used by witnesses in court. The problem is that only certain people can adminster the oath for swearing an affidavit. In British Columbia, these people are most commonly lawyers and notaries who charge anywhere from $24.99 to $69.99 per affidavit. If you have a few affidavits from various witnesses, these charges can add up quickly.

Fortunately, the British Columbia Supreme Court Registry has certain staff members who are able to swear affidavits without charge. This service may also be available in the Federal Court of Canada. Note that the Registry staff will not be able to draft the affidavit for you, or provide you with legal advice. The Registry staff must also check your identification, so remember to bring at least two pieces of ID, one of which should have your photograph.

UPDATE: Thanks to some helpful comments, it appears that the BC Supreme Court Registry is now charging $31 to swear an affidavit. This may still be a worthwhile option, since $31 is still cheaper than the average rate among lawyers and notaries.

For an excellent guide to preparing your own affidavits check out Drafting Affidavits: A Lay Person's Guide published by the Community Legal Assistance Society.

January 23, 2009

Getting ALL the Information About Your Criminal Charge

In R. v. Stinchcombe, the Supreme Court of Canada made it a requirement for Crown prosecutors to disclose to a person charged with a criminal offense all relevant information about their criminal charge - whether or not the Crown intends to introduce it into evidence and whether or not it tends to prove that the accused is guilty or not guilty. Generally, Crown will provide an accused with a disclosure package at their initial appearance, or shortly afterwards.

While the disclosure package usually meets the requirements in R. v. Stinchcombe, for whatever reason, important information is sometimes omitted which could affect an accused’s chances of being acquitted at trial. That’s why it is important to review the Crown disclosure package carefully to see if anything is missing. Look for omitted page numbers, police reports, and witness or complainant statements.

Even if nothing is obviously missing, you may want to write what’s known as a Stinchcombe Letter to the Crown Counsel office asking for further disclosure. The following is an example of some disclosure requests commonly made in a Stinchcombe letter:
  1. A copy of any police reports or notes made on or about [DATE OF OFFENCE] with respect to the accused not already disclosed. In particular, legible and unredacted copies of [CONSTABLE #1234 SMITH’S] police notes (Note: this last part would apply where portions have been blacked out);


  2. An unredacted copy of the Criminal Justice Branch Narrative, Report ID: ABCD1234 (Note: again, this would apply where portions of the report have been blacked out);


  3. Any audio or video recordings of any conversations of [THE ACCUSED] with the police during his arrest and detention on or about [DATE OF OFFENCE/DATES OF DETENTION];


  4. Any audio or video recordings of the conversations of [WITNESS/COMPLAINANT NAMES] on the night of the alleged incident and any audio tapes of [WITNESS/COMPLAINANT NAME’S] call to the police which led to the arrest;

  5. A copy of the criminal record of the complainant, [COMPLAINANT’S NAME];


  6. A copy of the criminal record of any proposed witness;


  7. Copies of any photographs taken by police of [THE ACCUSED] or [THE COMPLAINANT] or the scene of the alleged incident on or after [DATE OF OFFENCE];


  8. Inspection of anything that the Crown proposes to introduce as an exhibit and, where practicable, production of copies thereof;


  9. Where not protected from disclosure by the law, the name and address of any other person who may have information useful to the accused, or other details enabling that person to be identified; and


  10. Any other material or information known to the Crown not previously disclosed and which tends to mitigate or negate the accused's guilt or which would tend to reduce his punishment therefore, notwithstanding that the Crown does not intend to introduce material or information as evidence.

Contact information for the Crown Counsel office responsible for an accused’s file is usually found on the cover letter of the Crown disclosure package. However, if you don’t have this information and want to know where to send your Stinchcombe letter, you can call the Vancouver Crown Counsel office at (604) 660-4353 to find out which Crown prosecutor is responsible for your file.

Here is some more information about the role of Crown Counsel.

January 21, 2009

Part II: Top 10 Tips for Getting More From Your Lawyer...For Less!

Here is Part II of the list from yesterday:

6. Get realistic. A great way to rack up your legal bill is to insist that your lawyer fight unwinnable battles over trivial matters because you are taking an unreasonable position. If your lawyer tells you to agree to an adjournment of your application, there’s a good bet it’s because she knows that if you don’t, the judge will adjourn it anyway, possibly order costs against you and think you are a jerk for making everyone go to court. You are paying your lawyer for her judgment and expertise – so trust it. It’s much better save your money and energy for the useful fights than die the death of a thousand expensive lost chambers applications.

7. Get an email account. One way to reduce your legal fees and increase your lawyer’s accountability is to communicate primarily via email. Emails are shorter and more informative than telephone calls and allow your lawyer to copy you on correspondence and keep you updated on your file’s progress. Email also allows your lawyer to give some thought to your questions instead of replying off the cuff, which only increases the value of her advice.

8. Get some distance. Clients get very invested in their legal problems, with good reason. After all, it’s your marriage, job, house or business. But while you may think it’s helpful to barrage your lawyer with several calls, emails, thoughts, concerns, queries a day, the fact is that you are likely driving your lawyer crazy by second-guessing and micromanaging every step in the litigation and your legal bill will reflect all the time she spends dealing with your constant harassment. I have seen cases where the client’s constant intervention actually doubled his legal bills because of all the time spent reviewing, revising and reconsidering decisions which had already been made. If you want to handle the file yourself then stop paying your lawyer and do it yourself.

9. Get DIY. Actually, you might be able to do part of it yourself. There is no rule that you have to hire a lawyer to handle your entire legal problem. Many legal problems can be broken up into various parts, with each part having a varying degree of difficulty. For example, you may be able to start a divorce proceeding yourself, but hire a lawyer to handle the application for interim support. You might negotiate all the terms of an agreement to buy a small business, and then hire a lawyer to formally draw up the contract. The important thing is to consider which tasks are within your area of competence and which would really benefit from someone with a specialized knowledge of the law.

10. Get your documents. One of the most wasteful parts of litigation are document discovery processes where lawyers repeatedly ask clients for documents, only to have the client slowly produce them in fits and starts over weeks and months. Just as bad is when the documents are produced in inexplicable bundles and boxes requiring the lawyer to spend hours sorting, listing, and labelling. Do your lawyer and yourself a favour and organize your documents into chronological order. If you really want to save legal fees, make a document list, and include the date of the document, its title, who authored it and to whom it was sent. Your lawyer will think you are a superstar and your legal bills will reward you for your good work.

Whether its fees, documents, goals or timelines, the biggest frustrations between lawyers and clients relate to communication. Hopefully these notes from the field will make the experience of hiring a lawyer more enjoyable and much less expensive.

January 20, 2009

Top 10 Tips for Getting More From Your Lawyer...For Less!

There are times when no matter how resourceful you are, your legal problem is so complicated or distressing that it makes sense to hire a lawyer to help. Everyone knows that lawyers are expensive, but what most people realize is that you can maximize your lawyer's help and minimize your legal bills by heeding a few simple tips:

  1. Get focussed. Let’s be honest - people usually see a lawyer when something bad has happened. Divorces, bankruptcy, criminal charges, foreclosures. When a legal problem arises it’s natural to be emotional, scared or confused about what to do next. But before you reach for the Yellow Pages, take a deep breath, sit down, and consider your goals. People usually call a lawyer without doing this mental homework first, which results in a lot of wasted legal fees while the lawyer tries to figure out the client’s bottom line. Try to be realistic and about your legal problem and consider the financial, emotional, short and long term costs of various outcomes, not only to you, but also to your family. Write down your best case scenario, your worst case scenario, and the middle ground which you could live with if you had to. Now find a lawyer, and take this piece of paper with you.

  2. Get a referral. Finding a good lawyer is like finding a good pair of shoes. Good client/lawyer matches are a walk on a cloud. Bad matches chafe, blister and eventually make you trip. So try a couple on for size before committing. One excellent way to do this is through the Canadian Bar Association (B.C.’s) Lawyer Referral Service, which provides a referral to a lawyer near you who has experience with your kind of legal problem. The referral gives you a 30 minute appointment for a nominal $25 fee. Take the opportunity to ask the lawyer about her experience, her approach, and her take on your problem.

  3. Get organized. Would you hire your accountant to do your dishes? No. So why would you pay your lawyer $200 or more an hour to turn your jumbled documents into a sensibly organized file? The simplest thing you can do to help your lawyer understand your case and save yourself loads of legal fees is to be prepared. Come to your first meeting with a binder of key documents arranged in chronological order with the oldest documents first, and the newest documents last. Key documents always include any relevant documents you have been sent by the court, the government or the person with whom you have a dispute. Also, prepare a one page chronology of events in point form and include dates wherever possible and give this to the lawyer when you meet with her.

  4. Get a retainer letter. If you have an initial consultation with a lawyer, and you feel confident in hiring her, take the plunge and talk about legal fees. Both lawyers and clients feel awkward about raising the issue, but it’s in your best interest as a client to know from the start how and when your lawyer will charge you for her time. Ask for an estimate of the total cost for the work. If it makes sense in your case, propose a flat rate for handling a particular part of the file. This way, you won’t be worried about how much every phone call or email is costing you. If you think you will have trouble paying your legal bill all at once, ask if your lawyer will agree to a payment plan to spread the cost over several months. Often law firms have some flexibility in their billing practices which may make the bitter pill of legal fees easier to swallow. Make sure that whatever agreement you reach about legal fees is in a retainer letter signed by you and your lawyer.

  5. Get counselling. Some legal problems come with a lot of emotional collateral damage, especially where the issue involves family and jobs. Clients trust and confide in lawyers, as they should, but this doesn’t mean that your lawyer knows from Freud. In fact, the statistics on the divorce, depression and addiction rate among lawyers shows that many of us are in no position to be giving you advice on your personal life. Again, paying your lawyer $200 or more an hour to listen to you rant about your ex is going to cost you a bundle and do almost nothing for your headspace. For about half the price you can make an appointment with someone who has a degree or two in what to say in response to your diatribe about your idiot former boss.

Stay tuned for the next 5 tips tomorrow...

January 16, 2009

Eviction Notice? Lost Deposit? The Law and Equity Act May Help

Sometimes tiny mistakes have huge and brutal consequences. For instance, a late rent cheque could mean an eviction notice. A missed deadline might mean a lost deposit, because you didn't read the fine print in a contract.

Under some circumstances, you may be able to apply to the court for "relief against penalities and forfeiture" under s.24 of the Law and Equity Act. Section 24 says:
"The court may relieve against all penalities and forfeitures, and in
granting the relief may impose any terms as to costs, expenses, damages, compensations and all other matters that the court thinks fit."

An order under section 24 is discretionary, which means that a judge does not have to help you. They must decide whether making the order is appropriate and fair. In deciding, judges will usually consider whether the effect of the penalty or forfeiture on the buyer (or tenant) is disproportionate to the vendor's (or landlord's) loss. They will also consider whether the severity of the penalty is unconscionable in the circumstances.

Here are some other things to know about section 24:

  1. Section 24 is like a "get out of jail free card" in that it will usually be only granted one time. For example, if you get relief from eviction after failing to pay rent on time, it is very unlikely that the court will give you further relief if you later get another eviction notice.

  2. Section 24 does not apply to a penalty or forfeiture in a statute, for instance the Criminal Code or the Motor Vehicle Act, unless those statutes specifically provide for relief.

  3. Section 24 mainly applies to penalties or forfeitures in contracts, like the loss of deposits or forfeiture of leases.

  4. The court may decide to give partial relief (e.g. giving back half of a lost deposit) or make conditions for the relief (e.g. removing the eviction notice but requiring rent arrears to be paid by a certain date ).

Section 24 is broad and has been used in many everyday circumstances, including:

For more information about how to begin a court application to get relief under section 24 of the Law and Equity Act, check out the B.C. Supreme Court Self-Help Information Centre either online or at the office located at 800 Smithe Street in Vancouver.

[Reference: Annotated British Columbia Law and Equity Act.]

January 15, 2009

Help With Civil Chambers Applications

Have you been told that you need to appear in Chambers to make or oppose a court application? This type of court procedure generally isn't covered by legal aid, however a pilot project from Pro Bono BC called the Civil Chambers Pro Bono Duty Counsel Project may be able to help. I volunteered for this project last year, and I can tell you that it is very well organized and helpful.

Every Wednesday, a volunteer civil litigation lawyer from Vancouver acts as Duty Counsel and is available to provide advice and/or representation in Chambers hearings. The Duty Counsel lawyer meets with clients in an office in the Courthouse Library at 800 Smithe Street, next to the photocopy room.

If you would like the Duty Counsel lawyer to represent you during your hearing, you may want to arrange for your application to be heard on a Wednesday (the court registry can give you more information about scheduling hearings). If you are opposing an application, ask the other side (or their lawyer) to set the hearing down for a Wednesday.

Appointments are required and can be made by calling (604) 603-5797.

Legal Aid Cuts Come at Worst Possible Time

The Vancouver Sun reported today that the Legal Services Society (which administers legal aid in British Columbia) is cutting legal assistance, even though the demand for legal services, especially in immigration and emergency family law, has increased substantially this year.

The LSS is planning $12.7 million in spending cuts through layoffs and decreased immigration, duty counsel and LawLine funding. LawLine is a free telephone service for people needing legal assistance, whether or not they qualify for legal aid.

The CBC reports that "the level of aid provided in family and criminal cases will be reduced, and that the society will drastically reduce advocacy efforts designed to integrate legal aid and promote reform in the justice system."

The cuts will likely also reduce the number of lawyers taking on legal aid cases, since the already low fees paid by LLS for legal aid cases will be reduced through the cancellation of administration fees. Family law cases, where the administrative costs for a lawyer are particularly high, are expected to be most heavily hit.

Reduced contributions from non-government sources, such as the Notary Foundation of B.C., are partly to blame for the cuts and it is unclear whether the government will provide additional funding.

The cuts come at a particularly vulnerable time for those in need of legal aid; it stands to reason that economic turmoil increases the need for legal aid, since some of the main causes of legal woes, including divorces, bankruptcy, foreclosures and unemployment all increase substantially during recessions. The provincial government needs to act quickly to restore funding to ensure that those bearing the brunt of British Columbia's recession do not have their troubles compounded to an irreparable degree by being denied legal representation when they need it most.

January 13, 2009

Your Time = A Lawyer's Time

With some exceptions, the successful party in a lawsuit in British Columbia is generally awarded costs for his or her legal fees and disbursements. This means that the losing party has to pay some of the winning party's lawyer's fees, as well as the expenses to do with photocopying, printing, serving documents, etc.

But what about people who win their case without the help of a lawyer? Shouldn't they be compensated for the time and money spent preparing for court, researching the law, drafting documents, etc.? It turns out the answer is yes, according to a little-known 1995 decision of the British Columbia Court of Appeal called Skidmore v. Blackwell. In that case, the court overturned earlier decisions and found that people who represent themselves in court successfully are entitled to be compensated for their time in the same way a lawyer would be.

Welcome!

Legal rights and remedies are the lines in the sand meant to prevent people from hurting each other. However, as anyone who has tried to retrieve a damage deposit from an unwilling landlord, reverse mistaken charges on a cell phone bill or enforce child support from a former spouse knows, your legal rights are only as strong as your ability to enforce them. To those outside the legal system, the forms, procedures, evidence and court motions necessary to accomplish even the most basic task seem daunting to the point of impenetrability.

Since graduating from law school in 2005, advising and representing pro bono clients has been the most exciting and meaningful part of my practice. Though the problems facing my pro bono clients have differed, their common theme is the disparity between the rights the average person in Canada is promised by law and the rights that person is able to enforce. While there is never a perfect symmetry between the existence of a right and its enforceability, at some point, if the barriers to enjoying a right are insurmountable for all but a minority of the population, can we legitimately say that right exists at all?

Legal aid covers painfully few of the legal predicaments which can threaten the people and things we value most; our families, our homes, our jobs and our freedom. The good news is that more lawyers than ever are volunteering to assist low income litigants with their legal problems, and more than ever, there are free online legal tools which can be harnessed to help you understand and enforce your legal rights and remedies.

This blog does not provide legal advice, nor can we provide legal assistance to individuals. However, it is my hope that social media can be used to raise awareness about poverty law issues, provide resources for low income litigants and their lawyers, and share some best practices from lawyers working in the poverty law trenches.