Top 5 Tips for How to Retain an Indigenous & Aboriginal Law Lawyer Who Meets Your Needs & Budget

If you want a house sold, or a will drawn up, or a business incorporated, you’ll often have thousands of lawyers to choose from depending on where you live. But if you’re looking for expertise in Indigenous and Aboriginal law, you could be choosing from among as few as dozens of lawyers in your province or territory, or within the low hundreds of lawyers on a national basis.

Those with significant expertise in Indigenous and Aboriginal law are persistently in short supply, with lawyers doing that type of work being thinly spread anywhere in Canada. First Nations, Inuit, Métis, Indian Act Bands including Chiefs and Councils, Indigenous organizations and individuals may find the proverbial phrase “good help is hard to find” is especially true when seeking out private legal services that fit their needs.

The causes of this lawyer shortage range from law schools having limited offerings in Indigenous and Aboriginal law, bar admissions courses not testing candidates in those areas, lawyers increasingly being concentrated in big cities which may be far away from Indigenous clients whom they could gain experience working with, and the significant number of government lawyers who do have some relevant experience not being overly keen to enter private practice (with me and a few others being the exceptions).

Very legitimate questions to wonder about when contemplating hiring an Indigenous and Aboriginal law lawyer include:

• can we afford a lawyers’s fees?

• is the lawyer actually going to understand our people’s needs?

• does the lawyer really know anything about the area of law we require?

• how do we pick among lawyers?

• do we need more than one lawyer?

• should we only look locally for a lawyer, or is looking locally totally hopeless?

• should we look outside our province or territory for a lawyer?

Unfortunately, it’s difficult to generalize about how to find the perfect lawyer, as so much of that comes down to the lawyer’s “fit” with the client. But I’ll try to answer the foregoing questions in this post of top 5 tips for how to retain an Indigenous and Aboriginal law lawyer who meets your needs and budget.

My thoughts are based on my having seen firsthand Indigenous and Aboriginal lawyers at work in every province and territory of Canada. I’ve seen lawyers with vast practice experience, and lawyers with almost no experience. I’ve seen lawyers who charge high rates, and lawyers who charge very little. I’ve seen great service being provided, and sometimes not-so-great service.

1. Just Because You Have a Law Degree Doesn’t Mean You Know About Indigenous & Aboriginal Law: How to Judge if the Lawyer Knows Anything

Many law schools (with notable exceptions) may at best offer one course in Indigenous and Aboriginal law, and it’s rarely mandatory to take it. There aren’t even many books available to study for this vast and rapidly evolving legal specialty. Thus any lawyer you’re considering retaining should be closely asked about their prior work in the field in government or private practice. This is truly a “you learn by doing type of law” where the vast majority of lawyers in Canada never get involved in the field.

With the hugely oppressive prior restrictions under Canadian legislation preventing Indigenous peoples from retaining counsel which continued until the 1950s, the advent of modern Indigenous and Aboriginal law lawyers in Canada was only in the 1970s (who could be termed the first-generation lawyers), particularly amongst those who got involved at the start of modern treaty negotiation processes. The youngest of those lawyers started practicing in the 1960s, meaning that they are all now edging into their 80s and retiring from the practice of law.

The second-generation lawyers likely got into the field starting in the 1990s or later (when I started), as a series of precedent-setting Supreme Court of Canada cases were increasingly litigated, modern Comprehensive Claims treaty negotiations expanded greatly, and Specific and Special claims negotiations increased. There’s now also a third generation of lawyers getting into the field.

When choosing among lawyer candidates, you need to ask any of them for a detailed c.v., push them on what they really know, and how they learned what they know. Some “small town” lawyers could have vast relevant experience, whereas other nationally prominent lawyers could have zero.

In terms of years of experience, law is probably like any discipline in that it takes about 10 years to figure out what you’re doing. But a 40-year experienced lawyer won’t necessarily be four times as good as a 10-year lawyer.

2. Cost Depends More on Scope of Work Than Hourly Rate: Focus on the Big Picture on Costs

While there can be an obsession among lawyers and non-lawyers alike over the hourly rates charged by lawyers - ranging in Canada from a modest $150/hour to a mind-blowing $1,300/hour or more - the reality is that two hours from that $1,300 lawyer could be a lot better value than 100 hours from that $150 lawyer. So clearly defining scope and objectives of the legal work you hope to have accomplished within a particular budget may better guide how much your legal services really cost, rather than hourly rate. Get a flat block fee quote for the work if you can.

Even a complex legal opinion might only be a few thousand dollars (regardless of hourly rate), whereas what was initially hoped to be a “simple” court case could exceed $100,000 (or $500,000 or more) in legal fees, because the legal opinion can be done quickly by an experienced lawyer, while spending weeks in court will burn huge amounts of time for a lawyer of any experience.

The reality is that Indigenous and Aboriginal rights litigation may be the most complex type of court case possible to mount in Canada, thus coming in with the highest price tag. For example, I heard the fees and disbursements on the Delgamuukw Aboriginal title case just in 1990s dollars ran to $13 million for the Indigenous peoples involved. All to be told by the Supreme Court of Canada to start over because they needed a new trial!

Contingency fees are possible in Indigenous and Aboriginal law, however such fees can also lead to fallings out between lawyers and clients. A combination of discounted hourly rates and a modest contingency fee % might be a good compromise between hourly and contingency fee methods when a matter is too complex and unpredictable for a flat block fee.

My own fees tend to be mid-range at $395/hour, I can’t afford to work solely on contingency, but I will consider hybrid discounted hourly and contingency fee combinations and offer flat block fees where possible.

Are the terms of retainer agreements negotiable? Absolutely. Law Societies don’t prescribe the words that appear in a retainer agreement (other than contingency fee language). And a law firm retainer isn’t like a car rental contract, where you’re paying a small price to a giant corporation with no hope of changing the fine print.

While lots of lawyers have standard form template retainers (my firm does), some will be open to adjustments. All should be open to add-on language. For me, the basic language I have in our retainer I ethically and contractually need, but I’m fine with reasonable requests to add additional language to clarify important issues.

3. Striking a Balance Between Local Counsel & Experienced Counsel: Will Travel Costs Kill Us?

Seeing your lawyer face to face at least some of the time is important. None of us were put on earth to live our entire lives via Zoom.

Some lawyers charge nothing for travel time, just for disbursements. Some charge 1/2 their hourly rate for travel. Some charge 100% of their rate to travel. If that travel involves driving downtown to court in the same city, it might not be so bad. But for Indigenous clients who could require a day of continuous travel to see them, the travel costs could risk exceeding the costs of legal services for smaller projects!

Thus it’s very important to ask any prospective lawyer about travel costs. Some might agree to a fixed rate for all travel, like an all-inclusive time and disbursement amount per trip. Some will be more tech-savvy than others, being able to provide you with high-quality services mostly remotely, while others will be largely trapped by a paper world.

Some might be like me, where I typically don’t charge anything for travel time on closer distances - just for the cost of disbursements like a flight - as I might be able to do some work for the client while travelling. Though for longer distances I might need to charge something for my time if it means I can’t be doing work for other clients over an extended period of time, as ultimately all lawyers have to sell is our time. But lawyer travel will always be very negotiable as to cost, so it may pay to press a lawyer candidate on travel costs, while hourly rates may be less negotiable because of fixed overheads.

4. Should I look Outside My Home Province or Territory for a Lawyer?

For many types of law that are unique to a province, like real estate, the answer is no. However, the answer for Indigenous and Aboriginal lawyers is absolutely look beyond your borders, as those lawyers are primarily dealing with federal law that is largely consistent throughout Canada. And looking outside your province or territory will give you more lawyers to choose from.

A protocol among almost all law societies in Canada (other than Quebec and the Territories) now permits lawyers of any province to practice in another province for up to 100 days a year. Non-Quebec lawyers need a special permit to practice in Quebec (I have one). The Territories require at least a temporary call to the bar in order to do legal work there, as they have such small resident bars that they risk not being able to fund their operations if no one was required to take out practice permits to practice there for up to 100 days, however those temporary calls aren’t hard to obtain.

5. Just Because You Hire a Lawyer Doesn’t Mean That Lawyer Will Do the Work: Know Who You’re Actually Hiring

When hiring a lawyer, it’s important to confirm up front who will be doing the work. In larger firms, while you might be hiring a “name” partner, will you actually ever see that partner again after the hiring, or will it be junior associates doing the work? Certainly, lawyers work as teams, and there’s nothing wrong with work being delegated to those with lower hourly rates, so long as the senior lawyer remains available to the client, and engaged in the work.

If you hire a sole practitioner, you’ll always know who is doing the work, but for very large-scale legal projects you might need more lawyer or support resources than that one lawyer can provide. Sometimes individual lawyers will partner up for larger Indigenous and Aboriginal law projects, giving you the benefit of a legal team, while still knowing who is doing the work. That’s my usual approach to highly complex time-consuming matters.

Asking lots of focussed questions of any prospective lawyer, and then asking even more questions, will always be your best route to finding the ideal lawyer who meets your needs and budget.

Gordon S. Campbell practices Indigenous and Aboriginal law throughout Canada. Learn more at www.acmlawfirm.ca.

Top 5 Tips on How To Navigate the Military Law Maze For Canadian Forces Members

Much of the law in Canada hasn’t changed significantly in decades or even centuries. Wills and estates law, property law, contract law all find their roots in the common law of centuries past of England, with only minor court inspired evolution, and very little legislation by politicians modifying the well accepted principles.

This is all the exact opposite of Canadian military law, where virtually the entire body of law was created politically by Parliament from the ground up as found in the National Defence Act, the King’s/Queen’s Regulations and Orders as interpreted by evolving decisions of the Federal Courts, and the public international law of war. Since most Canadian lawyers don’t even have a clue about how military law operates, how is a non-legally trained CF Member supposed to navigate the military law maze to be able to exercise all rights given to Members under military law?

As a CF veteran and private lawyer practicing military law throughout Canada, here are my top ten tips for all CF Members on how to navigate that military law maze.

Tip #1: Get Free Legal Advice Within the CF Whenever Possible

The CF employs about 200 JAG branch lawyers internally. Some are assigned to help CF Members with summary legal advice on military law, or to defend them before courts martial.

There are limits to what JAGs are tasked to assist individual members with, such that you’ll usually be assigned a non-legally trained “assisting officer” when facing administrative action internally, but that assisting officer won’t be a lawyer. But I still urge you reach out to your local in-house CF lawyer to get whatever advice you can for free. Because free is free, and I’ve never found anything to be fundamentally wrong with the advice you might receive, the problem is that JAG lawyers are very limited in the ways they can directly assist CF members.

Tip #2: Make Full Use of Your Assisting Officer

While assisting officers aren’t legally trained, they can provide substantial help in legal matters. As they are commissioned officers, they’ll mostly have a university degree even if that degree isn’t in law, so they may at least have decent research and writing skills. Put them to work helping you. While they deserve your respect, they are there to help you, so give them something to do, and brainstorm with them ways to tackle your legal situation.

Tip #3: Do Your Own Research

Pulling jurisprudence precedents no longer requires days lost in a law library like it did when I started law school. Take advantage of the golden age of free full text legal research that we now live in.

Find helpful cases at www.canlii.org; currently it has 3,297,060 full text boolean searchable cases. I guarantee you at least one will be helpful to you. The trick is finding it, and knowing it’s the “one” once you’ve found it.

Find helpful legislation at https://laws-lois.justice.gc.ca. While CanLII also has lots of legislation, and has a better search engine than the Department of Justice legislation website, the Justice website may be more up to date or better present its statutes and regulations.

For the King’s/Queen’s Regulations and Orders see https://www.canada.ca/en/department-national-defence/corporate/policies-standards/queens-regulations-orders.html

Tip #4: Consult Private Counsel

Many military law matters won’t cost a fortune in legal fees to retain private counsel for. It’s true that if you’re thinking of attempting to take the rejection of a more minor grievance up on judicial review to the Federal Court, the costs of private counsel may be disproportionate to the significance of the issue in dispute. But if you’re facing administrative dismissal from the CF or other very significant consequences to your career, private counsel could be worth it. Just closely question anyone you’re considering hiring on whether they actually know anything about the military and military law, because I can’t name even one law school in Canada which offers a course on military law, so it really is something that needs to be learned by doing.

Tip #5: The Federal Court is Always Your Court of Law Resort

One would hope that the CF grievance system would be robust enough to address legitimate breaches of policy or rights, but unfortunately that’s often not the case. For federal law administrative matters, like almost everything in the CF that doesn’t involve a court martial, if you’ve exhausted all your internal remedies, including sometimes getting a final recommendation from the External Grievance Review Committee and decision by the Chief of Defence Staff, what’s known as a Judicial Review to the Federal Court may be your only recourse left.

While judicial reviews technically aren’t “appeals,” you can still think of them in that way. However they’re called JRs because they exist when there is no appeal route possible.

There are CF members who represent themselves successfully in the Federal Court, but it’s very difficult to do as compared to representing yourself on a grievance. The rules of court of very technically, and you’ll be facing a Department of Justice lawyer on the other side defending the government’s position against you. Thus I always recommend you use a lawyer, even if you’ve represented yourself at earlier stages of proceedings.

The Federal Court has a history of intervening to stop CF members being treated unfairly by the chain of command, even where the CDS below has refused to intervene, claiming that no unfairness occurred. See for example one of my cases Jaffray v. Canada (Attorney General), 2021 FC 532 which referenced the companion decision of Denneboom v. Canada (Attorney General), 2021 FC 531 at para. 40: “Some of [the Final Authority’s] findings are not supported by the evidence and, most importantly, it does not provide an adequate explanation for its rejection of the Committee’s recommendations”; the challenged decision was returned to the initial authority for redetermination, which resulted in all Members receiving the promotions and backpay they had been unfairly denied.

Gordon S. Campbell practices military law in French and English throughout Canada. Learn more at www.acmlawfirm.ca.

Passing of Pierre Aubry

We are saddened to announce the untimely passing of Pierre Aubry on 11 January 2023. Originally started as Macdonnell and MacDonald, the almost century old law firm of Aubry Campbell MacLean in Alexandria and Lancaster Ontario was built into what it is today first by Pierre’s father and later by Pierre practicing with his father as MacDonald and Aubry.

Pierre was later joined by Gordon Campbell and Matthew MacLean practicing in association to form Aubry Campbell MacLean. Gordon and Matthew will continue their practice, with Matthew assisting Pierre’s wills & estates, corporate and real estate clients, all of whom Pierre greatly valued and appreciated.

How to Avoid Litigation Burnout: Top 5 Tips for Surviving Canada's Gruelling Court Processes

Nineteenth century English novelist Samuel Butler unfortunately got it right, when he said: “In law, nothing is certain but the expense.” I always tell my clients I can’t predict litigation outcomes. I’ll do my best to fight for their interests, but I can’t give them precise odds on winning.

Butler’s adage applies to all types of litigation: civil, administrative, family, criminal. Certainly a good lawyer can maximize your prospects of success, but I tell clients they need to do whatever they can to protect themselves against “litigation burnout” during the process of getting to hoped for success. If my 28 years of litigation experience has taught me one thing, it’s that financial, emotional and physical “litigation burnout” is the greatest risk in any litigation.

Not every aspect of law risks burnout. Much of law is quick, relatively easy, and relatively inexpensive. Sell a house. Write a new will. It’s all done within a few weeks, for a few thousand dollars at most in fees.

Litigation is an entirely different beast. The term “litigation” is simply the all encompassing word for having a dispute settled by a third party you haven’t chosen: a judge in a trial court, a panel of judges in an appeal court, a hearing officer in an administrative tribunal. It’s essentially the opposite of negotiations, where talking about interests ideally reaches agreement without a coercive process resulting in an imposed result.

You might be trapped in litigation because of a business or debt dispute, a family dissolution, or a criminal charge. The key is knowing how to get out of that litigation as quickly and cheaply as possible, with the best results practicably achievable. You definitely don’t want your only objective to be to “win,” or you’ll be at extreme high risk of burnout!

While some may be wildly optimistic about litigation outcomes - “I’ve got such a great case, it will be super quick, and super cheap, and I’ll get everything I want” - even those with more realistic expectations never in my experience adequately estimate just how much time, expense and emotional plus physical toll will be involved in a litigated outcome to a dispute, unless they’ve gone through the process before.

If you think of litigation like a boxing match, it’s unrealistic to think you can just start punching away, and won’t get punched back. In reality, every punch might be met with a counter punch, because it’s human nature to defend yourself. Each of those punches takes time and money. If the counter punch is just as effective as your opening punch, all you might be accomplishing for a while is mutual legal pummelling, without much progress towards a final determination of your case.

Here are my top five tips to surviving litigation burnout inside Canada’s gruelling court processes. My multiplier factors are based on my personal real life experience with hundreds of cases and clients; while the multipliers may not be scientific, they’re rooted in my frank assessments of party expectations versus courtroom realities.

Tip #1: Multiply However Long You Think the Litigation Will Take by a Factor of Five

Few clients enter a litigation process thinking they have years of uncertainty, expense and struggle to look forward to. But as even a small claims court case can be in the system for years (one to two years to trial, maybe another year for an appeal, another year to attempt to collect a judgment), and a higher value civil or family case could span decades (5 years to trial, another 5 years for appeals, add in a few more years if there is a retrial, or multiple motions which delay a trial), my advice is to multiply the time you think your case will take by five.

Think because it’s supposed to be cheap and simple that small claims court will take six months? Plan on 2 1/2 years (6 months times 5), and you won’t be disappointed.

Think your criminal case will be resolved in one year. Plan on five years (1 year times 5). As if it’s a serious case, it could take a year just for disclosure and resolution discussions to be complete before a preliminary hearing date is set, another one year for that preliminary hearing to run, another 1 1/2 years for the trial to run after that - which might be prolonged by delays and get dragged out over a year - and then a year after that for an appeal.

Can a criminal cases be concluded in under five years? Absolutely. They’re actually the quickest and least expensive cases of all, but complex cases involving lots of witnesses or accused will drag on for years, and even for a simple case it might take a year to set a trial date, another year for the trial to commence, and another year for the trial to finish and final judgment to be rendered. So multiplying the one year by five remains a safe bet.

Think your family case can be finalized in two years? Plan for ten (2 years times 5). Because family cases tend to start and stop as parties fire lawyers, run out of money, get distracted by other issues, it might take 4 years for parties even to each commit to a trial, that trial might then be dragged out over a year (waiting for the trial date, and then finishing the actual trial spread over many days), there might then be an appeal, or an appeal of an appeal. There may be later attempts at enforcement. Or a motion to change. I’ve seen family cases continuing 15 years after the start.

Civil cases can continue the longest of all. Think 3 years will be enough? Plan for 15. It could take 5 years just to set a case down for trial after getting through all the preliminary case steps, another 3 years for that trial date to arrive, there are perpetual last minute trial adjournments that could lead to another wait of 3 years for a new trial date, then two or three more years for appeals.

The time factor of five multiplier isn’t perfect, but I find it a good rule of thumb to avoid disappointment.

Now you might be thinking: “That’s crazy? I can’t wait for 5 or 10 or 15 years for my case to finish!.” Totally understandable if that’s your situation. However, then you’ll have only one option: immediately settle on the best terms you can negotiate. You might hate the terms of settlement you’re facing, but those terms could be wrapped up in 15 days, rather than 15 years. What are 15 years of your life worth to you?

Tip #2: Multiply However Much You Think the Litigation Will Cost by a Factor of Ten

Lawyers really aren’t that expensive for single discrete issues, like selling real estate or drafting wills, as not much of their time is involved. they might only be spending two or three of their hours on such matters. On litigation, unfortunately, they might be spending 500 or 1500 hours!

So I find just like clients understandably perpetually underestimate the amount of time their litigation case will take to be completed, so too do they greatly underestimate the amount of money they’ll need to pursue the litigation.

If you think a reasonable litigation budget for your civil litigation case might be $25,000, add a zero on it to get it to $250,000 ($25,000 times 10).

Think you can finish your family law case for $40,000, add a zero again to give yourself a $400,000 budget.

These numbers aren’t a product of crazy lawyer hourly charges (though those don’t help, but most lawyers try to limit their hourly rates to something reasonable). Rather, they’re a product of what employing a highly educated professional, year after year after year to relentlessly to pursue victory on your behalf will cost you in the absence of a negotiated settlement.

Again, you might think: “$400,000 for family litigation, that’s crazy!” And you’d be right in my opinion. But again, your only alternative will be to immediately settle, even on terms you consider unfair to you. Spending $400,000 to prove you’re right - and then having a court split the difference, leading to mixed trial success at best - is a high price to pay.

Might your legal fees actually be far less than this factor of ten principle? Of course. But this way, at least you won’t run out of money. The worst case scenario in any litigation, is spending a ton of money, and running out halfway through. Better to never spend any money at the get go, because you know you won’t have enough.

There are ways to budget and economize. Use one lawyer for court appearances, not two. Be as organized as you can with all your documents, presenting them in a fully indexed way to your lawyer, so that your lawyer doesn’t need to bill you for that. But ultimately case cost is a function of complexity, as complexity drives lawyer time required.

Simple criminal litigation cases tend to be the least complex - like an impaired driving - and thus cost the least. So about $5,000 for the resolution stages, and about $15,000 to the end of a trial for DUI.

Complicated civil litigation cases tend to be the most complex - like an Indigenous Treaty rights claim - and thus cost the most. Likely at least $500,000, but a budget in the millions is more plausible to properly pursue Indigenous rights through all required levels of appeal. It’s understandable you might try to kid yourself that you could do this (or any other) kind of case for $50,000, but you can’t: you’ll be out the $50,000, and have accomplished nothing.

Likewise, many believe that just by starting a case in court, the other party will fold like wet Kleenex, intimidated into giving them what they want, all at the expense of just a few thousand dollars to have a Statement of Claim issued. That same magical thinking on a far grander scale is what starts international wars that endure for years, after the aggressor far overestimates the value of intimidation and underestimates the fight in their opponent.

Tip #3: Divide Your Best Case Expected Outcome by Half

We all have expectations over what we hope to achieve from litigation: sole custody of children, hundreds of thousands of dollars in damages, a complete exoneration on criminal charges. All these outcomes could be possible. But the real question to ask is: are they probable? And at what cost. And in what time?

Is it better to accept an early settlement offer of $50,000 on a wrongful dismissal cases where you’ve only spent $5,000 to date in legal fees, or better to try to get a $150,000 award five years later after spending $175,000 in legal fees to go to trial?

It is better to plead guilty to a minor offence for a day in jail after $5,000 in fees, or to go to trial three years later after being on bail all that time, and paying $50,000 in fees, risking months in jail if you lose after trial?

It is better to accept shared joint decision making for children during mediation, at a total lawyer and mediator cost of about $7,500, all concluded within 90 days, or fight through to trial three years later at a cost of $250,00 for a chance at getting sole decision making?

Inflated expectations are the most common cause of early-stage litigation not settling prior to the fees and years expended getting crazy. I have one civil case where the plaintiff sued for $86 million. Except the highest damages ever awarded in Canadian history AFTER trial for this kind of case tend to be under $500,000. So while cutting that $86 million in half wouldn’t do much good in this particular instance towards settlement, generally speaking if you think are are entitled to x, or would absolutely refuse to give more than y, both sides cutting their expectations in half might bring them within a close enough range that they can at least have productive settlement discussions.

Thus, you think your case is worth $300,000, and the other side thinks it’s worth $40,000. You cutting expectations to $150,000, and them doubling their amount to $80,000, put you within a negotiable range (as you’re only looking for double their amount). These expectations don’t need to be publicly shared, even if they’re just in your head they’re helpful guides to get you out of the litigation meat grinder.

Just because you dream you deserve something, doesn’t mean a court is going to give it to you. And even if others have achieved that result in court before - after immense time and resources were expended - doesn’t mean that you can repeat that result. Likewise, just because you think the other side doesn’t deserve something, doesn’t mean they don’t have a chance at getting it.

So maybe you’ll need to share some custody, or not get as much money as you want, or plead guilty to something more minor. If any of those results gets you out of the litigation meat grinder, you should seriously consider them as “wins” rather than losses. If you’ve got unlimited time, and unlimited money, and unlimited emotional and physical fortitude, sure you can go for the big “win.” But which of us has all that?

Tip #4: Expand the Amount of Documentary Evidence You Expect to Need by a Factor of Twenty

I find “I just have to tell my story, and I’ll win” to be a common perception of litigants. This is from litigants of all levels of education and sophistication.

They each believe in the justness of their case, and equally believe that a decision maker will understand their belief, see clearly that justice is on their side, and decide the case in their favour. What they forget is that the opposing party will invariable tell a diametrically opposed story, effectively cancelling out their own story. Plus that judges are used to everyone lying, or being forgetful, and getting creative with the facts.

At the end of the day, court cases are won by overwhelming the other side with provable objective factual evidence, preferably in documentary form, because documents are far less likely to lie or embellish than are humans.

So you are “telling your story” - just in a way beyond you giving a simple verbal account of it in court. Instead, you’re sticking that story together - like connecting the dots - from days, weeks, perhaps years of text messages, emails, letters, audio or video recordings, social media messages, any of which might by themselves seem quite innocuous, but which together as a whole form a compelling wall of irrefutable proof.

A “document” in the broadest sense is any piece of real physical evidence like a letter, a text or social media message, an email, or an audio or video recording. I perpetually find that I’ll ask clients to give me “all their documents” (explaining what I mean by that), but months or years later I might hear: “oh, I didn’t know that included text messages, I thought you only wanted emails” or “oh, I didn’t know you wanted any messages earlier than this year” or “oh, I didn’t think those messages from other people were relevant, so I never told you about them.”

“All” means “all.” Meaning, I’m thrilled if I get a dump of thousands or even tens of thousands of documents. Ideally, they’d be a bit organized, but often I can scan through them all in a few hours. Especially if I do some OCR work on them.

You may enter court facing some lying witnesses on the other side, but ideally you’ll be able bury those lies with those witnesses own texted words. Ours really is a new age, where previously things would be said in-person or by phone without recording only to be denied later, whereas now texted words live for ever. I’ve never seen a judge demand proof of the authenticity of Facebook posts or phone texts; they all just get admitted into evidence, and sometimes are quite devastating to the other party’s case.

So if you start your case, thinking you’ll need 10 winner documents, look for 200 (10 x 20). If you think you’ll need 100, because you have a complex tale spanning years and multiple people, look for 2,000 (100 x 20). Even if you don’t find that precise number, keep shaking the document tree until not a leaf remains on it. A document that might seem insignificant to you, could the just the proverbial “smoking gun” your lawyer was looking for.

Tip #5: Revaluate if There is a Possible Negotiated Outcome Every Week

While asking for a reevaluation of the potential for a negotiated solution every day might not be productive, every week is reasonable as litigation is such a financial, emotional and physical drain. It’s a money furnace and a pain factory rolled into one; so why prolong all that?

Once it gets going, litigation suffers from all the traps of inertia: throwing good money after bad, perceiving that sacrifice by itself creates value, believing that if the struggle has been continuing for so long you can’t possibly stop now to end it short of total victory.

All those trite sayings of “only the lawyers win” are true of litigation. Yes, if you happen to find an opponent with no money or will to fight, perhaps you can bring overwhelming force to bear to secure a win short of going almost broke in the process, but equally matched opponents will generally only succeed in inevitably wearing each other down financially, emotionally, physically, until they are shells of their former selves, each grasping onto that hope of a victory that always seems so close, but which they just can’t seem to grab.

So don’t focus on getting yourself through the intervening weeks, months or years of court proceedings, dreaming of your next court date which you hope (but which won’t) solve everything. Rather, do the opposite. Pay little attention to the court dates, and instead focus on how to make sure there never is another court date.

What can you offer to settle? What does the other side really want? What can you live without? How can you make settlement more attractive?

It’s quite true that it takes two to settle. One party who wants to settle against a party with zero interest in settling will have a challenge. But if you’re already wearing down the other side in the litigation process (while getting worn down yourself), there’s no reason you can’t also wear them down with settlement plans. The worst that will happen is they’ll say “no,” but that “no” will be a whole lot cheaper to obtain that you next court appearance will be. And it might provoke some thinking on their part as to what a “yes” would look like.

Gordon S. Campbell represents clients in involved in litigation before Ontario’s Superior Court of Justice, Divisional Court and Court of Appeal, the Federal Court and Federal Court of Appeal, the Supreme Court of Canada, as well as federal and provincial administrative boards and tribunals. Learn more at www.acmlawfirm.ca.

How to Know When You Need a Lawyer, How to Choose a Lawyer & How to Save Money on a Lawyer

How to Know When you Need a Lawyer

Knowing when you need a lawyer can be a lot more challenging that knowing when you need to call a plumber. A pipe bursts in your basement, water sprays everywhere, and you’ll probably be Googling for plumber contact info in no time.

But legal problems can more insidiously creep up on you, and making legal decisions without a lawyer is more a part of our daily lives. Whether or not to sign that car or water heater lease, or shed or jewelry purchase contract, are all legal decisions usually made without a lawyer. Even when the police approach you to ask “just a few questions” usually takes place without legal advice, or even a warning of your right to counsel, if you’re only being treated at that point as a witness rather than a suspect in a crime. 

Generally the best way to tell if you need a lawyer is based on (1) monetary value and (2) risk. Meaning, before you sign a contract to pay $1 million for a house, you should absolutely be contacting a lawyer to review the contract, even if your real estate agent tells you it isn’t necessary. The review will be quick, and might even be thrown in for free as part of your real estate transaction closing fees by the lawyer. Lack of legal review could lead you to having a $1 million contractual mess on your hands, that will cost you way more in time and legal fees than a quick almost free advance review would have cost. 

Likewise, before you speak to the police about anything other than providing your basic name and address contact identification details, you should absolutely get advice from a lawyer. You might subjectively believe your risk to be low, but as a non-lawyer who isn’t in possession of all the facts and motivations the police have, it’s impossible for you to come to a rational conclusion about true risk.

Witnesses can quickly turn into suspects. Information gathered by the police that won’t be used against you in a criminal context could be turned over to civil authorities or a private insurer to be used against you civilly or administratively. You may have absolutely no obligation to share any information with the police, or you might be required by legislation to provide information - and even the police won’t be able to accurately inform you on your obligations, as they mostly aren’t trained as lawyers, and certainly aren’t working for you as your own lawyer. 

How to Choose a Lawyer

There’s all sorts of mythology out there concerning how to choose a lawyer. Traditionally, everyone relied upon word of mouth, which still works to a degree. However, many of us in our personal lives may have only dealt with a lawyer a couple of times previously - perhaps to buy a house - and won’t be able to easily ask friends and family to come up with lawyer names for services like employment law, or criminal defence, or family law. 

Fortunately we’ve moved away from the Yellow Pages trend of whichever lawyer was paying the most for the biggest ad received the most phone calls , to many law firms now having substantive organic content on their websites which can be evaluated as to how well legal subjects are explained, together with giving the background c.v. details of each lawyer.

While I like Google reviews for restaurants and hotels, I wouldn’t rely upon them for lawyers, as they don’t reflect objective criteria for how good any legal services were, and may have more to do with simply how the legal relationship ended, whether a client was expecting a very low fee for very complicated work, or even whether opposing party litigants are attempting to post reviews about opposing lawyers they never even retained. Legal services can’t be reviewed similarly to a clean hotel bathroom, which will indeed have objective factors of quality we can all readily assess.

The appropriateness of legal fees are especially hard to evaluate, as an experienced lawyer charging higher hourly rates might be able to finish work more quickly than a more junior lawyer charging lower hourly rates, and thus your hourly bill will could lower in the end even with higher hourly fees. Currently in Canada, lawyers with some experience will be typically charging between $300 and $500 an hour. Highly specialized lawyers, or those with high overheads in major urban centres may charge more. Some will be able to offer you fixed block fees, which should always be asked about, depending upon the practice area (most common in real estate, wills, and criminal defence). 

I’d suggest that the lawyer responsiveness to questions and communications generally might be the most important factor in choosing a lawyer - even if s/he can only respond via staff - as the best most experienced greatest value lawyer in the world won’t be any good to you if you can’t get your questions answered, and you never hear back from the lawyer when you have a problem you need legal help with. Thus responsiveness is likely more important than experience or value in fees, though experience and value would be my number two and three factors to evaluate carefully. 

Results previously obtained should never be a factor to evaluate a lawyer upon, and you should be cautious about anyone boasting about “success” percentages on a website. For basic legal services like real estate transactions and will drafting, you have a right to essentially 100% success. For litigation like civil, criminal or family cases, anyone bragging about “wins” might only be taking the easiest of cases, or might be getting creative over what a “win” even amounts to.

Usually the only result that really matters is getting the optimal outcome at a price you can afford. Meaning, if you resolve a case early, at a moderate $10,000 price in legal fees, it will usually be a better result than going to trial on a $100,000 dispute, “winning” the trial so that you need to pay nothing to the other party, but paying over $150,000 in legal fees, where then one might say that in reality only the lawyers really won.

How to Save Money on Lawyer

Generally the best way to save money on a lawyer is perhaps somewhat counterintuitively to hire them as soon as possible, rather than as late as possible. Some might think an early retainer will only run up fees, or incur charges that were never necessary, because the problem really didn’t need a lawyer in the first place. But the reality is that sometimes solely a few hours of lawyer first aid early on, or even just a one hour consultation, can head off months or even years of legal suffering that could require dozens or hundreds of lawyer hours to solve.

So the moment your mind to telling you, “hey, I think I have a real legal problem, maybe I should be getting professional advice” you should give in to that impulse. This isn’t my pitch to enrich my lawyer colleagues. We usually don’t even charge for initial contact to determine if a lawyer can help you. And basic more formal advice usually won’t cost you more than a few hundred dollars. 

Sometimes the legal answer you need may be as simple as “yes” or “no” from a lawyer, but making the wrong choice without legal advice could cost you dearly. 

So the best way to save money isn’t endless comparison shopping to get the cheapest lawyer hourly rate out there, isn’t putting off hiring a lawyer until things get really desperate, and isn’t planning to try to muddle through the work yourself, and only call up a lawyer now and then to explain how to do it yourself. That is like thinking the cheapest way to build a house is to pay a contractor at his hourly rate to spend hundreds of hours on the phone with you explaining every step of house building techniques to you, including how to rip out and redo all your mistakes. That kind of plan will likely lead you to spend the most rather than least possible, potentially combined with getting the worst results.

Contacting a lawyer whenever the value or risk of a legal problem seems to you to be significant, combined with picking a lawyer mostly based on their responsiveness (with experience and value being important secondary factors), and saving money on a lawyer through contacting one as soon as possible, will best serve you in obtaining the most effective legal services, when you need those services, at the most affordable price. 

Gordon S. Campbell, B.A., LL.B., B.C.L. practices in the Federal Court, Federal Court of Appeal and Supreme Court of Canada throughout Canada, and within Ontario for civil, criminal and family appellate and trial litigation.

How 2021 Really Did Change Everything for Indigenous & Aboriginal Law in Canada: The Dramatic But Little Known UNDRIP Act

Probably no area of legal practice in Canada is so prone to great expectations followed by repeatedly dashed hopes as is Indigenous and Aboriginal law. Once every year or two, the Supreme Court of Canada will grant leave to appeal to what seems to be such a significant case about Aboriginal rights, treaties or title. Everyone will hold their breath waiting for judgment, imagining a truly groundbreaking breakthrough decision. Only to learn when reasons for judgment are released that while there is lots of interesting theorizing, in the end the result is only yet another trial (Delgamuukw v. British Columbia, [1997] S SCR 1010), or more negotiations (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44), or that poor consultations really were okay after all (Taku River Tlingit First Nation v. British Columbia, 2004 SCC 74).

But 2021 was dramatically different because the truly groundbreaking breakthrough had nothing to do with the Courts, and everything to do with Parliament.

Parliament Fully Adopts UNDRIP into Canadian Domestic Law

It’s quite true that the Indigenous and Aboriginal law expectations and dashed hopes cycle has also played out to a lesser degree in Federal and Provincial legislatures over the decades, though often not in as dramatic a way as with the courts, as the legislative process is more transparent in that one can see the modest efforts from the start not even getting off the ground or accomplishing much, like Indian Act reforms debated since the 1960s, or various forms of exceedingly modest self-government legislation created from the 1990s onwards.

But in 2021, Parliament quite quietly in the middle of the pandemic passed what was known as Bill C-15, An Act Respecting the United Nations Declaration on the Rights of Indigenous Peoples, S.C. 2021, c. 14, which received Royal Assent on 21 June 2021 (UNDRIP Act).

Over fourteen years ago, on 13 September 2007, an overwhelming majority of 144 states voted in favour at the United Nations General Assembly of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Only four countries voted against it, Canada being one of them (along with the US, Australia and New Zealand).

Reading over the rights UNDRIP’s 46 Articles articulate, it’s hard to imagine how anyone could oppose it. Canada especially objected to Article 3: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

But then suddenly on 10 May 2016, Canada announced through a speech given by the Minister of Indigenous and Northern Affairs at the UN that “Canada is now a full supporter of the Declaration, without qualification, is an important step in the vital work of reconciliation. Adopting and implementing the Declaration means that we will be breathing life into Section 35 of Canada’s Constitution, which provides a full box of rights for Indigenous peoples.”

While it took five more years to pass legislation fully adopting the Declaration into Canadian law, it’s now been six months since we’ve all been living with UNDRIP throughout Canada. While none of us might feel any different, that doesn’t mean there hasn’t been a dramatic legal shift that we all need to wake up to.

UNDRIP Immediately Applies Throughout Canadian Law

The language used in the 2021 UNDRIP Act is quite definitive and without qualification that all of UNDRIP’s 46 Articles are now part of Canadian law. While the Act may talk about developing a framework, the Act is very clear that the lack of a framework is not an excuse to fail to implement UNDRIP immediately. The referenced framework is only a technical means to an end.

Section 4 of the Act explicitly establishes that: “The purposes of this Act are to (a) affirm the Declaration as a universal international human rights instrument with application in Canadian law; and (b) provide a framework for the Government of Canada’s implementation of the Declaration.” Section 5 requires that “The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration. Very importantly, sub-section 2(3) of the Act clarifies: “Nothing in this Act is to be construed as delaying the application of the Declaration in Canadian law.”

I’m asking you to take my word as a lawyer involved in constitutional and Indigenous legal issues as well as statutory construction for over 25 years that this is very strong and imperative language which actually means something. It’s not merely aspirational. It’s not vague. In short, it’s not merely political fluff!

You need to understand that even binding international treaties don’t self-implementation under Canadian law - unlike in some countries where once they’ve been internationally ratified they automatically become part of the laws of those lands - rather, they require implementing legislation by a competent legislature. And UNDRIP might not even be considered an international treaty in the traditional sense with operative provisions among the parties, rather it’s just a declaration of important principles. Canada sometimes never domestically implements even the international agreements it accepts, or only does so in a piecemeal fashion, for various political and legal reasons.

Thus, Parliament’s UNDRIP Act wholeheartedly incorporating UNDRIP into Canadian domestic law is a dramatic legal step. The Act even attaches UNDRIP as an Annex, so that there’s no doubt about precisely what is becoming part of Canadian law.

The Act’s lengthy preamble includes confirmation that: “the rights and principals affirmed in Declaration constitute the minimum standards for the survival, dignity and well-being of Indigenous peoples of the world, and must be implemented in Canada” as well as that “all relations with Indigenous peoples must be based on the recognition and implementation of the inherent right to self-determination, including the right of self-government.”

Our Collective Responsibility to Ensure This Doesn’t Turn Into More Aspirational Fluff

At the end of the day, we all know that talk is cheap. The UNDRIP Act isn’t talk. It’s now law. And has been for the last six months. Though I’m not sure how many have realized that.

I’ve already heard directly from at least one Government of Canada representative the claim that the Act only creates a framework, and nothing more. But that’s not what the Act says. And isn’t what Parliament intended.

It’s up to all of us collectively to hold the Crown to account in honouring the UNDRIP Act’s strong words, which apply all of UNDRIP everywhere in Canada, right now. Will the lawyers and politicians have exceedingly long debates over what the words of UNDRIP really require inside Canada? Of course they will.

But in 2016 Canada’s recognition of UNDRIP was still only talk. In 2021 that all changed when UNDRIP became part of Canadian law. It’s up to all of us now to start invoking the UNDRIP Act whenever it’s appropriate to remind all Canadians that the law shifted dramatically in 2021, and while there’s still lots of work to do in figuring out how that shift works in practice on the ground, there is no denying the dramatic change.

Gordon S. Campbell practices Indingenous & Aborginal law throughout Canada. Learn more at www.acmlawfirm.ca/Indgenous&AboriginalLegalServices