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.
