TOC INDEX. Working with Your Lawyer. Keith Wilson. Introduction. Choosing a Lawyer

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1 TOC INDEX AGRICULTURE, FOOD AND RURAL DEVELOPMENT Working with Your Lawyer Keith Wilson Introduction The cattle industry is becoming more complex as production techniques and market opportunities evolve. The complexity has resulted in an increase in the number of situations where feedlot operators may need to call upon the services of lawyer. This section deals with some considerations feedlot operators may want to keep in mind when selecting and working with a lawyer. Choosing a Lawyer There are a number of factors to consider when choosing a lawyer. You should consider the nature and complexity of the matter for which you are about to hire a lawyer. For straight forward matters like mortgages, land transfers, and so on, all lawyers will possess sufficient experience to meet your needs. However, for complex matters where the stakes are high, you should seek a lawyer with experience in the subject matter. Factors to consider include the level of understanding that a lawyer has of your industry and business. Knowledge of your industry and business can enable your lawyer to identify your legal options more quickly and effectively. Equally important, you should consider the lawyer s experience in the area of law applicable to your situation. For example, if your case involves settling a dispute over an inheritance, you can seek out a lawyer with wills and estate experience; or, if your case involves an environmental problem, you can find a lawyer with environmental law experience. A lawyer who has experience will require less time to examine your legal position and will be better equipped to help you achieve your objectives. Some lawyers who do not have substantial experience may be prepared to discount their fees for the additional time it may take them to acquire the experience. Alberta Feedlot Management Guide 7A1:1

2 When contacting a lawyer you can ask them about their experience in your industry and area of law. You can inquire with other producers in your industry or your industry associations for the name of a lawyer. You can also contact the Law Society of Alberta s lawyer referral line at Keep in mind that most will lawyers provide an initial telephone consultation free of charge. Fees and Billing When you hire a lawyer you are buying experience, knowledge, skill, and time. Some people may be reluctant to contact a lawyer because they are uncertain about the costs and how costs are determined. There are a variety of ways that lawyers charge for their services: Fixed Fee: usually for routine services such as a property sale or a business incorporation; Hourly Rate: many times a lawyer cannot predict the amount of time required when a case begins and as a result your lawyer will charge you based on the amount of time spent on the file; Contingency Fee: in some cases a lawyer will agree to take a case on the basis that he or she will be paid a percentage of any court award or settlement. It is important when hiring a lawyer to ask questions regarding fees. Specific issues would include: how the legal fees will be determined based on time spent working on the case, or based on a flat fee, etc.; the lawyer s hourly rate; the possibility of an estimate of the overall legal fees for the case; the timing and frequency with which the lawyer will bill you; the amount of information and detail that the lawyer will provide in his or her statement of account; what types of experiences the lawyers considers to be disbursements, for example, photocopies and fax charges. When you receive a bill from a lawyer you should not hesitate to contact the lawyer to clarify any questions or concerns you may have regarding the bill. Alberta Feedlot Management Guide 7A1:2

3 Communication and Instructions The Legal Profession and the Law Litigation When going to meet with your lawyer make an effort to collect and organize any documents you will be providing to your lawyer. It will be less costly for you to do this as compared to the lawyer. Never hesitate to ask your lawyer to explain the law to you or the reasons for his or her advice. Since it is common for lawyers to bill clients based on the amount of time they spend working on the file, it is important to keep this in mind when talking to your lawyer on the telephone or in a meeting. Keep your discussion focused and productive. Lawyers tend to place themselves into one of two categories depending on their type of practice: litigation or corporate/ commercial: A litigation lawyer will spend most of his or her time involved in dealing with law suits and other kinds of disputes which are being brought before the Courts for resolution. Corporate/commercial lawyers tend not to appear in Court. Rather, corporate/commercial lawyers focus on helping parties enter into agreements, financing agreements, purchase and sale of property or businesses to name only a few examples. If disputes arise over these matters, the case is often turned over to a litigation lawyer. Like those in the cattle industry, lawyers have a language of their own when dealing with legal issues. Cattlemen talk about discounts and differentials, hundred-weight, and so on. Lawyers talk about Pleadings, Examinations for Discovery, and more. In order to develop an understanding of the legal terminology, the following is brief explanation of the litigation process: The Pleadings Pleadings refer to a variety of documents which are used to start and defend a law suit or other court action. Lawyers draft pleadings to set out in writing the claims, allegations, and damages of his or her client. Pleadings to start a legal action include, a Statement of Claim, an Originating Notice, and a Alberta Feedlot Management Guide 7A1:3

4 Notice of Motion. The person commencing an action by one of these forms is referred to as the Plaintiff or Applicant. The person who is presented with one of these documents is referred to as a Defendant or Respondent. Once a client instructs his or her lawyer to commence an action against another person, the lawyer will draft the appropriate pleadings, file a copy of them with the Courts, and then serve the documents on the person against whom the claim is made. Service of documents simply refers to the special steps that lawyers must take to ensure that the other party to the dispute actually receives the documents. This is sometimes done by double-registered mail; however, more commonly it is done by a special agent know as a process server. Once a person is served with documents, they have a limited number of days in which to prepare a Statement of Defence or otherwise respond to the pleadings. The Discovery process Once a Statement of Defence is filed, the litigation moves into what is known as the discovery process. The purpose of the discovery process is to enable one party to learn more about the other party s case. There are different elements to the discovery process. First, each party is required to exchange documents which they may have relating to the issues in dispute in an Affidavit of Documents. The rules are very strict on this point: the existence of all documents must be disclosed. In addition, each party can be required to attend a meeting and be questioned under oath. This is called Examination for Discovery. The questions and answers are recorded into a written transcript so that they may be used at trial. The Trial process Once all of the documents have been examined and all of the parties and their witnesses have gone through examination for discovery, a case can be scheduled for trial. A trial has three parts: opening statements, production of physical/documentary evidence, witnesses, and closing legal arguments. Alberta Feedlot Management Guide 7A1:4

5 The parties to a law suit and their witnesses appear in court and are placed under oath. First, they are asked general questions by the lawyer for their side. Next, they are crossexamined by the lawyer for the other side. Finally, they can be asked further questions by their side s lawyer to clarify issues raised during cross-examination. After having heard all the evidence, a judge will rule on the case. Sometimes a judge will announce the decision at the conclusion of the case. More commonly, judges reserve their decision and release a written decision some time after trial. If you find yourself involved in litigation, it is important to keep settlement in mind as the litigation progresses. At any time in the process you can make an offer to the other side to settle your case. In other words, once you start a law suit, you do not necessarily have to see it through to trial. If, based on events in the law suit, you feel that settlement should be considered, instruct your lawyer accordingly. Litigation can be costly and uncertain. Settlement is one way of reducing the costs and uncertainty. Corporate/Commercial Unlike litigation, corporate/commercial law is not governed by a predetermined process. Corporate/commercial lawyers tend to work on specific tasks. The incorporation of a company is an example. Your lawyer can provide advice on the tax consequences of incorporation, means of limiting your personal liability, and how you would go about bringing in outside investment into your operation. Similarly, your corporate/commercial lawyer can provide advice on the types of agreements you should use to make sure there are no ownership problems with the cattle in your feedlot, ways of using those cattle as security in financing arrangements, and so on. There are many other examples. Conclusion The complexities of the modern cattle industry make it necessary for feedlot operators to interact with lawyers to a greater degree than in the past. By working effectively with your lawyer, you can avoid legal problems and more quickly resolve existing ones. Seek out the lawyer who you feel is right for the job and keep the lines of communication open. This article is intended to provide general information only. When you have a legal problem it is best to consult a lawyer. Alberta Feedlot Management Guide 7A1:5