The High Cost of Legal Representation

by RupertTaylor

The rich can hire lawyers while the poor qualify for government-funded legal aid; for many in the middle class neither option is available so they end up representing themselves.

According to an old proverb “A person who is his own lawyer has a fool for a client.” Yet increasingly, people are representing themselves in court because lawyers’ fees are so high they can’t afford to hire them. This despite the opinion of most legal professionals that acting as your own lawyer in most likely to turn out badly.
But, for those who chose this route it’s a matter of necessity. And, Supreme Court of Canada Chief Justice Beverley McLachlin noted in a 2007 speech “Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system. Some of them decide to become their own lawyers...Others simply give up.”
In December 2012, Supreme Court Justice Richard Wagner agreed. He lamented that the high cost of legal help meant many Canadians are denied access to justice. He told The Globe and Mail “If you don’t make sure there is access to justice, it can create serious problems for democracy. It is dangerous…”

What Does a Lawyer Cost?

In September 2012, a court in Delaware awarded costs to lawyers amounting to $35,000 an hour in a case involved the merger of two giant mining companies. Okay, that’s an aberration, but the hourly pay scale for lawyers is considerably higher than that of other professionals.

The British Columbia branch of the Canadian Bar Association gives the following warning: “You may approach a lawyer’s office like you approach a dentist’s office – you believe it’s going to be painful – not in your mouth, but in your pocketbook. You don’t know how much it’s going to cost, and you’re afraid to ask. All you know is it could cost a lot.”

“A lot” is anywhere between $100 and $1,000 an hour. Canadian Lawyer magazine publishes an annual fee survey; the one for 2012 shows that the more senior lawyers “charged an average of $408/hr in 2012, up sharply from $326 in 2011.” Lawyers with five years experience expected “to bring in $283/hr compared to the $260 they indicated they would charge in 2011.”

In a country where, according to Statistics Canada, the average hourly wage in February 2013 was $25.50 that seems high; to many it seems excessive.

Justifying Legal Fees

Lawyers get a bit defensive when questioned about their fees.

There are many websites on the Internet giving advice to lawyers on how handle client complaints about the size of their bills. They usually start by telling lawyers to stress they spend a minimum of seven years at university before they even start to practice; big money is involved in training to become a lawyer and this must be reflected in the fees they say.

I respectfully suggest my fees are reasonable.Most lawyers graduate with a high debt load. The Law Society of Upper Canada said that the average debt of students after their undergraduate degree in 2008 was just under $26,500. After a further three years of law school the average student added another $45,246 of debt. Tuition fees have risen considerably since then.

Lawyers point out that if they are charging $400 an hour that doesn’t all go into their bank accounts. They have to pay the salary of a legal secretary and cover their office rent and expenses, law society fees, and other costs of running a business. Lawyers working for a large firm have additional overhead expenses such as a share of the salaries of paralegals, receptionists, human resources, accounting, etc.

Lawyers also note that their jobs are very stressful and often involve 12- and 14-hour workdays. They also point out that they cannot afford to make mistakes that could be very costly to their clients.

Even so, the only people who say lawyers’ fees are justified are lawyers themselves. Others draw attention to the fact that people such as engineers and nurses go through lengthy and costly training. They also have stressful jobs with high degrees of responsibility for error-free work but make far less than lawyers.

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Self-Representation a Necessity

So, the average nurse making $21.50 to $32.50 an hour (figures from nurses4canada) will have to work one and a quarter 12-hour shifts to buy an hour of a lawyer’s time. Small wonder then, that a nurse going through a contested divorce often does so without a lawyer.

The Canadian Bar Association notes (October 2012) that in family court, where issues such as divorce and child custody are dealt with, “In at least a third of cases one party is unrepresented for at least part of the case, and another quarter or more of cases, neither party has a lawyer at any point.”

Meanwhile, University of Windsor law professor Julie Macfarlane is reported by the CBC (June 2012) to have “found up to 80 percent of people in family court and 60 percent in civil cases represent themselves.” She has completed a survey of self-represented litigants - known as SRLs in the legal community.

In criminal cases, SRLs show up less frequently. A Department of Justice study in 2002 (more up-to-date figures appear not to be available) looked at criminal courts in nine locations. The phrase “There is a significant number of accused who proceed through key parts of the criminal court process without the benefit of legal representation” is repeated for eight locations.

Only in Sherbrooke, Quebec is a number given; nine percent of defendants did not have a lawyer and this is described as a “relatively small” number.

The report also stresses that “evidence is insufficient to conclude whether or not self-represented accused are more likely to be convicted or to receive harsher sentences.”

Pitfalls for Self-Represented

Judith McCormack runs Downtown Legal Services in Toronto, a place that gives legal advice to the poor. She told Maclean’s magazine (January 2009) that “being your own lawyer is ‘like doing your own dental work or heart surgery…It’s a desperate response.’ ”One law for the rich another for the poor.

Lawyer Philip Slayton points out some of the pitfalls that lie ahead for do-it-yourself lawyers. Writing in Canadian Lawyer (January 2008) he points out that the self-represented are emotionally involved in the case and therefore unlikely to be able to present an argument based entirely on fact and logic.

The rules of procedure are mysterious to non-lawyers and can easily trip up those who try to steer through them on their own.

They find the legal system and its complex and confusing language difficult to navigate.

Professor Macfarlane says “I can certainly tell you I’ve heard a few good stories, but the overwhelming majority of the stories from people are ones of frustrations” and some people “suffer real trauma.”

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Self-Representation not Popular with Judges or Lawyers

Judges don’t like it when people represent themselves because it makes their job much more difficult. They must coach the person on what law applies to their case, on court procedures and the giving of evidence, and how to present an argument. At the same time, the judge must stay completely impartial. That’s a tough thing to do.

Here’s what Quebec Superior Court Chief Justice François Rolland says on that topic: “It’s not the role of the judge to help someone in the preparation of their case because the other party who may be represented by a lawyer may feel aggrieved.”

Do-it-yourself lawyers often get bogged down in irrelevant detail and this makes the court system inefficient and slows down the administration of justice in an already clogged system.

And, of course, lawyers don’t like those who chose to go into court without counsel. Not only does self-representation mean fewer fee-paying clients but it can be very frustrating when they have to oppose an amateur who doesn’t understand the legal process.

Cutting the Cost of Legal Representation

But, self-representation is here and it’s growing, so everybody has to get used to it. All governments now have websites telling the do-it-you-selfers how to prepare and present their cases.

Numerous legal resource clinics have opened where law students volunteer to help people with their cases under the supervision of a lawyer. Also, many lawyers will take on a number of pro bono cases, working for free or at greatly reduced fees.

A newer feature that is growing in popularity is called “unbundling.” Here’s how Anastasia Moskvitina describes it in Canadian Lawyer (March 2013): “This unbundling of legal services means a lawyer can represent a client for only a part of a legal proceeding, such as providing assistance with writing affidavits or cross examining witnesses.”

So, people who can’t afford the full package can perhaps find the money for a bit of professional hand-holding through the trickier bits.

Sources

“Top Court Tales: The Self-Representation Problem.” Philip Slayton, Canadian Lawyer, January 2008.

“Supreme Court Judge Warns of ‘Dangerous’ Flaws in the System.” Kirk Makin, Globe and Mail, December 13, 2012.

“Lawyers’ Fees.” Canadian Bar Association, June 2012.

“The Going Rate.” Robert Todd, Canadian Bar Association, June 2012.

“The Rise of the Self-Represented Litigant and the Challenges for Family Lawyers.” Nicholas Bala and Rachel Birnbaum, Canadian Bar Association, October 2012.

“Law Prof Finds 60-80% of People Don’t Use Lawyers.” Canadian Broadcasting Corporation, June 4, 2012.

“When Lawyers Are only for the Rich.” Kate Lunau, Maclean’s, January 14, 2009.

“Judges Grapple with Unrepresented Litigants.” Luis Millan, The Lawyers Weekly, November 5, 2010.

“[Nova Scotia] to Allow Unbundling of Legal Services.” Anastasia Moskvitina, Canadian Bar Association, March 14, 2013.

Updated: 03/19/2013, RupertTaylor
 
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AudreyHowitt on 05/29/2013

Excellent article!

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