I had an interesting meeting with a client yesterday. To oversimplify the situation, the client has ongoing litigation and I advised the client that there were three options: A, B and C. The client really wanted to do whatever was possible to get result A, would be willing to leave with result B and wanted nothing to do with result C. The problem was that I had told the client previously that my expectation, given all of the circumstances, was that result C was likely to be chosen by the judge. The client was not happy to hear this advice.
What I did not know, though, was that the client used to live outside of Toronto and the client’s old neighbour is a judge who presides over court in that area. The client called up the judge, gave him the basic story and then said “if it were you, would you choose options A, B or C?” Luckily for me, the Judge said that he would have likely chosen option C if he were the judge hearing the case. (As an aside, this is not improper by my client because (i) this Judge would never be the trial judge; and (ii) these types of opinions are given by judges all the time in pre-trial, or settlement conferences.)
I’m recounting this story to make two points. The first is that the legal system is, above all else, a human system. It is only as good as the witnesses, the lawyers and the judges – all of whom suffer from (or are benefitted by) the human condition. This means that there are no guarantees. If it were not a human system – and thus subject to human benefits and frailties – then the judges would all be computers. So, I advised the client that the likely result would be option C. Would it definitely be that result? No. So that is why I wasn’t bothered when I heard that the client went for a “second opinion” – whether it is from a judge or another lawyer. I’m not perfect, nor do I profess to be – well, most of the time In any event, there is always the possibility that I could get it wrong, another lawyer could get it wrong, the judge could get it wrong. It happens. But, most importantly, when it comes to litigation, it’s your lawsuit. If you’re not happy with the advice being given by your lawyer, there is nothing to stop you from getting a second opinion and any lawyer who takes offence to the client seeking a second opinion is doing a disservice to his/her client.
I am also recounting the story for another point. I’m asked from time to time why lawyer’s fees increase over time – for example, a lawyer out five years charges more than a lawyer out only one year; while a senior partner will charge more than the five year and two year lawyers combined. The simple answer is experience. After practising for 15 years, I am not perfect at guessing how judges will think. However, I am a lot better at it today than I was 10 years ago. Similarly, if you had the choice of a doctor who has been practising medicine for 20 years or a new graduate, who would you rather have see you? While I cannot use too broad a brush in making this assertion (for example, I’m just as lacking in knowledge of criminal or family law today as I was 10 years ago since I don’t practice in either area), there is something to be said for being more experienced – and this brings with it certain advantages for the client (and hence larger fee rates to be able to access those advantages).
In the end, experience does count.