Dispute Resolution. Procedural Fairness. These are crucially important concepts.
It’s time to put an end to useless letter writing and motion delays.
Family law lawyers write far too many letters. Clients have to pay for those letters. Letters should not be written unless they are for one of the following five proper purposes:
1. The letter is necessary to advance one’s case within a forum that counts.
2. The letter responds to an allegation that if left unanswered might cause a decision maker (eg. a judge or arbitrator) or an important professional (eg. mediator, children’s aid society official, custody assessor, etc.) to misconstrue silence as an admission.
3. The letter is needed to “set up” facts for a motion.
4. The letter is part of the essential financial disclosure process.
5. The letter is used to explore settlement possibilities where there is a very real possibility to settle all or part of the case.
If the letter does not come under any of the above five categories, then it is probably not worth writing.
It is not worth writing letters simply to heap abuse or wild allegations on the other side or the other lawyer because that is what the client says she wants.
It is not worth writing letters just to “sound good”.
It is not worth writing letters just to make the client feel good.
Letters cost clients far too much money. So much time and effort is wasted in return for no substantial return.
Gene C. Colman calls upon lawyers and yes, upon self-represented litigants as well, to concentrate on issues that meaningfully move the case forward. Don’t waste time on arguing about the past. Just try to find solutions to issues – not absolute permanent fixes – just solutions that will allow people to get on with their lives without bankrupting themselves.
The second area that the Colman firm has changed is motion scheduling. The Ontario Family Law Rules require six days’ notice for any motion. Courteous lawyers will canvass motion dates with opposing counsel before bringing a motion. Frequently, opposing counsel just is not available for the next three or four weeks. So, you work out that unfortunately delayed return date; you then serve the motion for the agreed upon date and the other lawyer then serves you with his responding materials a mere four days before the motion. For after all, that’s all the Rules actually require. As the moving party you have the right to reply, but then you have to ask for another adjournment in order to prepare, serve and file that reply. Once again, the motion is delayed. Before you know it, you are six to eight weeks after your client asked you to bring the motion.
At our firm, we have found a far better way. Those who know how we practise family law know that we are polite and professional. However, we have stopped clearing motion dates with our colleagues. We simply prepare our materials and make the motion returnable at the first possible date. Inevitably, opposing counsel have a veritable fit that we were so discourteous as to take such a unilateral step. However, we will always agree to a reasonable adjournment provided that the other lawyer agrees to a reasonable schedule for the orderly exchange of motion materials. Therefore, the “fit” and name calling stops fairly quickly. By being proactive to get our motions heard with all due speed, we no longer receive responding materials a mere four days before the return date. In cooperation with opposing counsel, we devise a schedule that works for both sides. Cases get heard faster and everyone has time to prepare.
So that is the attitude to contributing to the more expeditious processing of family law cases. Write as few letters as possible. Get your motion served as soon as possible but be reasonable with respect to rescheduling in order to accommodate everyone.
Since we have tried to curb the number and length of letters, we have been bringing more motions. We have found that the mere bringing of the motion has a somewhat unexpected positive affect on the process. It serves as a catalyst for resolving issues. It’s easy for the client opposite just to hide behind aggressive lawyers’ letters. It’s quite another thing if he must respond to an actual motion.
Bringing motions faster is reducing clients’ costs. Fewer letters = more motions = more interim settlements = quicker dispute resolution = less client costs. That’s our formula!
Dispute resolution. That’s what we family law lawyers are supposed to be promoting. Let’s really do it.