|Posted on February 6, 2017 at 6:25 PM||comments (0)|
This post discussed why legal fees tend to be so high. The good news is that as a client there are a number of ways you can reduce your legal fees, as the rest of this article will show.
Most clients only come to see a lawyer when they are in legal trouble. Unfortunately, by this stage there is often only so much your lawyer can do to help you, and usually the remaining legal options are going to cost a lot of money.
For instance, when you have an important agreement or arrangement with a person, it’s often better to obtain legal advice and have a written agreement. This will prevent disputes about the content of your agreement and make everyone clear on their rights and obligations under the agreement. This in turn significantly reduces the risk of a dispute and you later having to go to court and pay massive legal fees.
Also, if you recieve a letter of demand, you should either pay the demand or see a solicitor immediately. Not doing anything about it normally leaves the other party with little choice other than to commence proceedings, which are going to be expensive for all parties.
In a way, visits to your lawyer can be seen as similar to check-ups with your dentist. Regular check-ups with your dentist will ensure that any cavity or decay is detected early, ensuring that such problems are tackled early and preventing the need for root canal or tooth extraction. Similarly, an appointment to see your lawyer about a major transaction can help ensure that your interests are properly protected and serious legal problems later on are avoided.
Shop around/Don’t go with any inner-city law firm
Different lawyers charge different amounts for the same work. You may be quite surprised at the differences.
The best way to shop around is to look on the internet. That way you don’t feel obligated by having a lawyer see you and spend a while talking with you, or have to pay them for an initial consult when in the end you decide you would prefer another firm. By looking at a firm’s website you can ascertain where they are, what areas they practice in and get a general impression before you email them. When you email them, tell them very briefly what your matter is about in 4-6 sentences and ask them how much their fees will be. You should get a response within two business days if the firm is willing and able to take on your matter.
In terms of fee structure, the best approach is to agree on a fixed fee if that is a practicable option. Ask your solicitor to give you a fixed fee for your matter. That way, you know how much you will have to pay in advance and there are no nasty surprises later on. Also, your solicitors will not have the incentive of spending more time on your matter than necessary so that they can charge you more.
Of course, sometimes it is not possible for a fixed fee to be arranged. A typical example of when a fixed fee is unlikely to be possible is in court proceedings. Whether it’s civil litigation, family proceedings or a criminal case, it is impossible to precisely predict in advance how many court dates, how much preparation and generally how much work your solicitor will have to carry out. In such matters you may have to settle for an hourly rate, but you should still ensure that it’s competitive by getting a few different quotes.
Law firms in the CBD and other expensive areas pay enormous amounts of rent for their office spaces. Naturally, these costs are passed onto you, the consumer. In order to pay their massive overheads, inner-city firms charge very high hourly rates and most put lots of pressure in their ‘fee earners’ to generate as many ‘billable hours’ as possible every day. In such firms, the performance evaluation of their solicitors (or ‘fee earners’) is mostly based on the amount of money they generate for the firm. The focus in such firms is essentially on extracting as much money from you as possible.
Of course, there are times when it may be better to go with an inner-city law firm, such as if your claim is worth millions of dollars, or due to the complexity of your legal matter you require an accredited specialist (although there are accredited specialists in the suburbs as well!). Otherwise, it is generally advisable to see a suburban solicitor who pays far less rent. If your matter requires specialist advice or is going to court, your solicitor can always engage a barrister on your behalf to provide such services which shouldn’t come to too much.
Settle the case
Litigation is essentially a zero-sum game, as there can only be one winner, and the person who wins does so at the expense of another party. In fact, describing litigation as a zero sum game is actually unduly optimistic: both parties normally pay highly expensive legal fees, and only in exceptional cases do successful parties get costs orders which indemnify them for the massive amounts of legal fees they have paid.
In civil litigation, the normal course is that costs are awarded to the successful party on the court scale, which is usually substantially less than what your lawyers charged you. So even if you do win in court, the legal costs you recover will normally be a lot less than the amount that you paid in legal fees. Costs are usually not awarded in family matters in the federal courts or in estate matters.
On the other hand, if you lose you will have to pay your lawyer’s fees, the judgment sum and the other side’s costs. Unless you are quite wealthy, this is a triple whammy you probably can’t afford.
Furthermore, the outcome of litigation is normally uncertain, as it concerns disputes of fact or disputes over the meaning, effect or application of relevant laws. Litigation is also often unpredictable, as there are issues which often come up by surprise, and sometimes the judge just takes a particular view of the case and decides accordingly. You can never be completely sure of a good outcome, even if you have an apparently strong case.
As a result, it is generally advisable to try to settle the case before going to court. If you want to sue somebody, get your lawyer to send a letter of demand first and/or an offer to settle the civil dispute. If you receive a letter of demand, see a lawyer to get advice and then get the lawyer to draft a response. The response should be aimed at preventing the need for court proceedings, either by pointing out why you don’t owe the money demanded or making an offer to settle the dispute for once and for all. Because court proceedings are so expensive, you should try and avoid them whenever possible.
If you are a party to a court proceeding, consider the possibility of settling your case. There are three major advantages to this option:
1) The uncertainty is eliminated: the outcome you have both agreed upon you will almost certainly get, thereby removing the risk of financial disaster if you lose;
2) You can save on legal fees: as the matter will not have to proceed to final hearing; and
3) The matter is over far more quickly: so that you avoid unnecessary stress and can move on with your life.
A negotiated outcome could be a win for you and a win for your opponent, but in order for it to work you would have to put an offer that they may accept. Remember that the other party to the case will only accept if they see the outcome as beneficial for them. You should try and see things from the other party’s point of view and ask yourself what you would accept if you were in their shoes. It would be sensible to offer somewhat less than what you would get if you won in court to take into account the risk and expense of a trial.
Spend less time talking to/ emailing your lawyer
Many clients like to spend lots of time chatting to their lawyer on the phone. Some clients do not realise that lawyers are performing work by discussing your case with you or listening to you, and are perfectly entitled to charge for this.
Other clients like to send numerous long and/or repetitive emails to their lawyers. Of course, your lawyer is also entitled to charge for reading each of these emails.
A lawyer’s most valuable asset is his or her time. Minutes spent by a lawyer talking to you or reading your long emails are minutes that can be spent working on another client’s matter. By taking up a lawyer’s time discussing your case or sending many unnecessary emails, you are using up his or most valuable resource. If you want to save on your legal bills you should limit the time spent chatting with or emailing your lawyer. Wherever possible, make it short and sweet!
If you need to vent, talking to your partner or a friend is a much cheaper option. Remember that your lawyer can only help you with the legal side of your problem.
Do what your solicitors tells you the first time
Many clients fail to do what their solicitor asks them to do the first time. This leads to the solicitor having to chase up the client by writing letters and emails as well as calling the client. Sometimes the solicitor will also recieve correspondence and calls from third parties in relation to the delay occasioned by the client. All of this leads to additional and unnecessary costs being incurred on the client's file.
Don’t change lawyers
Every time you change lawyers, your new lawyers will have to spend time reading the file in order to become familiar with its contents and the issues, and to know what steps need to be taken. Naturally, you will be charged for this time.
As a result, it is generally adviseable to stick with the same lawyers from start to finish.
Don’t change your instructions unnecessarily
Your instructions are what you as a client tell your solicitor to do for you. Your lawyer has to carry out your instructions unless you ask him or her to do something which is illegal or unethical.
Your instructions will sometimes have to change as the case evolves. Changing your instructions can often be desirable, and is sometimes necessary (for example, if an event has made what you are seeking impossible to obtain). However, changing instructions can result in more legal work having to be undertaken, and therefore more fees. As a result, you should carefully consider your options before you give your lawyer instructions and not change those instructions without a very good reason. Changing instructions without a good reason can result in your legal bills being needlessly higher than they would otherwise be.
As this article demonstrates, there are a number of ways that legal consumers can save on legal bills. The important principle to remember is that a lawyer's most valuable resource is his or her time, and the more time you consume the more you will be charged. Essentially, saving your solicitor time saves you money.
|Posted on November 23, 2016 at 6:10 PM||comments (0)|
Labor Member for the Queensland seat of Griffith Terri Butler is being sued by one of the university students involved in the infamous case of the Facebook posts which resulted in legal action by a former administrative officer of the University of Technology (QUT) named Cindy Prior.
On 28 May 2013, some students were kicked out of a computer lab reserved for Aboriginal students by Ms Prior.
QUT student Alex Wood posted the following comment on Facebook:
Just got kicked out of the unsigned indigenous students computer lab. QUT stopping segregation with segregation?
Another student named Jackson Powell joined in with this comment:
I wonder where the white supremacist computer lab is
A third student named Calum Thwaites denied making a Facebook post which referred to ‘ITT niggers’.
On 4 November 2016, Judge Jarrett of the Federal Circuit Court of Australia dismissed a claim arising from the above posts against the abovenamed students brought by Ms Prior under section 18C of the Racial Discrimination Act 1975 (Cth).
I know how the law works. I know how the commission works...
And I notice that when people talk about those QUT students, they never mention the fact that one of them was alleged to have used the ‘n’ word ... in one of those Facebook posts
This is the situation. And we never found out because it was not determined. I’m saying this is what the allegations were and the matters were not determined
When told that Mr Thwaites had repeatedly denied it was his Facebook post, Ms Butler replied: “He would say that, wouldn’t he?”.
When The Australian's foreign affairs journalist Greg Sheridan pointed out that Butler was smearing the students, Butler replied with "I'm not smearing anyone".
Contrary to Butler's claim, the issue of whether Calum Thwaites was the author of a Facebook post that used the word 'nigger' has been determined in his favour, which is why the claim against him had been dismissed.
And contrary to Butler's claim that nobody talking about the case mentions the post containing the 'n word', this has been mentioned on a number of occasions by The Australian.
The Australian reports this morning that a Claim and Statement of Claim seeking damages in defamation against Ms Butler has been filed in the Brisbane Magistrates Court on behalf of Calum Thwaites alleging that Butler implied on Q&A that he was a racist bigot and perjurer who had deceived the Federal Circuit Court.
In order to succeed in a defamation action, a plaintiff must prove the following three elements:
1. That one or more defamatory imputations have been made.
2. That the defamatory imputations were published by the defendant.
3. That the plaintiff has been identified in relation to the defamatory imputations.
Once a plaintiff has established these three elements, the defendant must in order to succesfully defend the claim establish one of the available defences under the Defamation Act 2005, including the defences of substantial truth, fair comment, absolute privilege and qualified privilege.
This case demonstrates the importance of being informed when debating social issues in public. In this case, Ms Butler's ill informed rant allegedly defamed one of the students involved in the Federal Circuit Court proceeding. It is important that participants in public debates are careful with the facts so that they avoid damaging the reputations of others and exposing themselves to liability in defamation.
This case is also an excellent example of how advocacy for a cause (in this case retention of section 18C of the Racial Discrimination Act) can be badly damaged by getting facts wrong.
It will be interesting to see whether Ms Butler makes an apology and pays damages and/or costs, or whether the matter proceeds to trial before a Brisbane Magistrate. If we were acting for Ms Butler we would advise her to settle the claim early in order to avoid the risk of an expensive and potentially political career ending loss in a defamation trial.
|Posted on August 22, 2016 at 7:50 PM||comments (0)|
There are many aspects to the solicitor-barrister relationship. In some ways the relationship is symbiotic: solicitors need barristers when a case requires specialist advice or is going to trial, and barristers need solicitors to refer work to them. It is certainly in the interests of solicitors to have good relations with at least some barristers and vice versa. However, many (but not all) barristers consider themselves to be the more senior arm of the profession, to the chagrin of solicitors.
When a barrister is instructed by the solicitor, the two act as a team in preparing for and presenting the client’s case. The solicitor’s role is to obtain the client’s instructions, sort the facts in a digestible format for the barrister and to gather the relevant information and evidence in preparation for hearing. The barrister on the other hand provides advice and performs the advocacy work in court. When the solicitor and barrister work well together, that is to the benefit of the client, whose chances of a favourable outcome are increased.
However, two Discipline Applications brought against solicitors in the Queensland Civil and Administrative Tribunal (QCAT) in 2013 show that disputes can arise between solicitors and barristers that can have serious consequences for the legal practitioner found to have acted unethically.
On 16 October 2013 Milton solicitor Ros Janes was found guilty of professional misconduct for misleading the District Court. The District Court proceeding was a body corporate matter, and Janes instructed a barrister named Shannon Moody before terminating her retainer. Janes then filed an affidavit and appeared before the District Court, blaming Moody for the failure to comply with the Court’s directions to file an Outline of Argument. The Court referred the matter to the Queensland Bar Association so that Moody could respond, leading to the Legal Services Commissioner commencing disciplinary proceedings against Ms Janes.
The QCAT hearing largely turned on the communications between Ms Janes and Ms Moody in the lead up to Janes’ appearance in the District Court, and involved extensive cross-examination of both women, with the tribunal finding Moody to be the more impressive witness. Other factors that lead to the court preferring the evidence of Moody were that:
– Janes’ typed notes of conversations with Moody in many respects did not accurately reflect an allegedly contemporaneous handwritten note she made of a conversation with Moody
– Janes’ admission that Moody had raised an extension of time with her on four occasions
– Janes’ claim that at the time she did not know the submissions prepared by Moody were not an Outline of Argument as directed by the Court
– an untruth in her affidavit concerning when Moody advised her the Outline could be prepared by
– Janes’ denial that she had requested Moody to withhold preparation of the outline when she had requested an extension from the Registry for filing of the Outline on the ground that the parties could resolve the proceeding
– her claim that she had asked Moody to prepare the Outline urgently but then had not contacted Moody for another two weeks
– Janes effectively conceding that paragraphs 28 and 29 of her affidavit were incorrect.
Janes was publicly reprimanded and ordered to pay a fine of $10,000 and costs fixed at $2,000.
Meanwhile, Gold Coast solicitor Karen King was found guilty of professional misconduct in November 2013 after the Tribunal found that she breached an undertaking she made in 2006 to a barrister to pay his outstanding fees in full within an agreed time. The barrister was only ever paid $5,000 of the approximately $29,000 owed to him. Ms King denied the undertaking was given with her authority, however the Tribunal preferred the evidence of the solicitor in her employ who emailed the undertaking to the barrister.
Ms King was also found guilty of other charges, including withdrawing trust monies without authorisation, failing to provide an itemised bill and failing to comply with a written notice from the Commissioner. However, the Tribunal accepted the Commissioner’s submission that the failure to honour the undertaking to the barrister was the most serious of the charges.
The Tribunal ordered that Ms King should be struck off as she was not a proper person to remain on the roll. A significant factor which contributed to this conclusion was her lack of insight into her offending behaviour, as demonstrated by her various attempts to mislead the Commissioner and the Queensland Law Society, including the fabrication of evidence to support her position. In this way, the Karen King case bears a disturbing similarity to the case of Paul Anthony Dempsey, who in 2009 was struck off, partly for knowingly giving false evidence to the then Legal Practice Tribunal in an attempt to defend himself against the charges he faced.
Both of these recent cases show that solicitors should act honestly and ethically at all times in their professional dealings with barristers. In particular, solicitors should not blame barristers they instruct when things go wrong without good cause. And of course, when solicitors provide undertakings to barristers they must honour them.
Another important aspect to these cases is that when a lawyer is investigated, he or she would be best advised to be honest and frank in responding to any allegation of wrongdoing, including making full admissions where appropriate rather than attempting to conceal such lapses. Legal practitioners who admit their wrongdoing and express remorse are treated more leniently than lawyers who compound their predicament with implausible explanations for the evidence against them. The way Ros Janes and Karen King both responded to investigations and proceedings against them contributed to the substantial penalties imposed on them.
Perhaps solicitors would be well served to read Dr Tom Altobelli’s Working With Barristers publication.
|Posted on August 16, 2016 at 11:40 PM||comments (0)|
Most complaints about lawyers concern how high their legal fees are. The professional fees charged by lawyers are notorious. When many clients earn an average of $20-40 per hour, it can seem unfair that your lawyers charge you hundreds of dollars per hour. However, as this article will demonstrate, there are reasons why legal fees are so high.
The main reason legal fees are so high is because it costs a lot of money to lawfully run and operate a law firm. Law firms incur all of the costs normally associated with operating an office (rent, wages, photocopy leases, furniture, power, stationary, paper, ink, tax etc). Inner city law firms pay massive amounts of rent and of course this cost gets passed onto you. Additionally, there are extra costs that law firms have to pay, mainly because the legal profession is so highly regulated.
In addition to normal business costs, lawyers also incur the following costs:
Professional indemnity insurance - this is liability insurance that all law practices are required to have. The costs of this depends on the size of the practice, but it is invariably expensive. This insurance is ultimately to the clients' benefit, as it ensures that in cases where lawyers make mistakes, clients can be compensated for this.
Practicing certificate fees - lawyers also must pay thousands of dollars every year to the Law Society in order to renew their practicing certificates. The cost of a practicing certificate depends on the type of certificate which is granted. Included in the cost of a practicing certificate is a fidelity fund contribution fee of several hundred dollars in order to reimburse clients who are defrauded of money by a small number of unscrupulous members of the profession.
Continuing Professional Development - every year, lawyers are required to complete 10 points CPD as part of their continuing legal education. This typically costs thousands of dollars per practitioner as the seminars/courses that must be attended or undertaken are rather dear. Lawyers can be severely disciplined for not complying with the above requirements. Because a solicitor's time is worth a lot of money, the monies spent on CPD are arguably small compared to the time expended on CPD which could be used on chargeable activities.
Trust account expenses - most firms hold at least one trust account, which is a bank account where monies which do not belong to the firm are deposited. Examples of trust monies include funds used for paying house deposits or outlays, and monies paid upfront by clients or third party payers on account of the firm's professional fees. Firms have to pay for annual external audits of their trust accounts, which usually cost a minimum of $1,500. Firms also have to deposit 2/3 of the lowest balance held in their general trust account of the previous year into a separate account. In addition, firms can be audited by the Queensland Law Society, with the costs of such audit being passed onto them. And of course, banks impose monthly account keeping and other fees on solicitors' trust accounts. Finally, the costs of keeping and maintaining records, including trust accounting software and the time spent by members of the firm also add up.
As a result, the financial costs of practicing law are enormous. There are however other reasons why legal fees are high.
Being a lawyer is one of the most demanding occupations. Lawyers have to negotiate competing demands placed on them by their clients, the courts, their employers, disciplinary bodies and their families. Some clients are difficult or have unrealistic expectations, and this ensures that they walk away unhappy with their lawyer, even when their lawyer has done an OK job.
The law is a competitive, adversarial and aggressive environment. Lawyers typically are required to work long hours, including sometimes on weekends. The consequences of mistakes and failures can be severe, including embarrassment, loss of reputation, being sued and even being disciplined.
As a result of these pressures, lawyers are one of the occupations whose members most prone to suffering depression.
For these reasons it is unsurprising that lawyers expect to be adequately compensated for the work they do.
Becoming a lawyer
The process of becoming a lawyer is a long and expensive one. The reality is that lawyers become qualified and eligible for practice at enormous personal and financial cost.
Lawyers have typically gone to university for many years in order to obtain a law degree and have then undertaken a diploma in legal practice in order to become a solicitor, or undergone training and mentoring to become a barrister. Before being able to practice law, they must be admitted to the legal profession. This is an expensive and time-consuming process which involves paying a large fee to the Legal Admissions Board, and filing an application and affidavit in the Supreme Court.
Even when they are admitted to the profession and commence legal practice, it takes many more years before a lawyer becomes sufficiently experienced and knowledgeable to practice without any supervision.
Put simply, lawyers are so expensive because the financial and other costs of practicing law are enormous. Many of these costs are due to the onerous regulation of the profession. The costs of legal practice inevitably must be passed onto the legal consumer, ie the client.
The good news is that clients can minimise their legal fees, as this article explains.