Frequently Asked Questions
Hiring a lawyer can be an intimidating experience. Do you even need help? Exactly what kind of help do you actually need? How much will it cost, and how do you pay?
And then, of course, there is the complex language and terminology that's used by the legal profession. What exactly is your lawyer proposing to do for you? And how will it affect you?
In order to help clarify these issues, we've made a list of the questions we are asked most frequently. We've provided some simple answers to those questions. We've also given you simple definitions of some of the most widely used, and least understood, legal terms.
What is Litigation?
To litigate something means going to Court (or other judicial body, such as a Tribunal or Board) to seek a remedy. The remedy you are seeking may be a declaration of legal rights or obligations. It could also be monetary damages for things like injuries incurred in a motor vehicle accident. A litigator is a lawyer who earns his living by representing his clients in Court.
How are lawyers paid?
There are a number of different ways to pay a lawyer for the work he does. For some jobs a simple hourly rate is the best approach. Other jobs, such as convenancing property, are usually done for a straight fee. In many civil cases, where a successful verdict will result in damages being paid, a lawyer may work for a contingency fee.
What is a Contingency Fee?
This is when a lawyer is only paid on successful completion of his work. It is usually a percentage of the judgment or settlement that the lawyer has won for his client. If no money is obtained, the law firm usually receives nothing. Contingency fees are a widely accepted practise among firms that practice litigation.
From a client's point of view there are both advantages and disadvantages to a contingency agreement.
The biggest advantage of contingency agreements is to clients who do not have the money to hire a lawyer on an hourly rate. With a contingency arrangement, a client can hire a good lawyer to represent them, without having to pay a lot of money up front.
The disadvantage is that a client may end up paying a lawyer more money than if he had just been paid his hourly rate. This is because the lawyer is assuming some of the risk involved in the case. If he is unsuccessful, he could be paid nothing. So if he is successful, he deserves a greater compensation. He also has to defer any payment to himself until the matter is completed.
In our experience contingency fees usually equal out to what a client would have paid a lawyer at his hourly rate. There are exceptions of course, such as when a good settlement is reached quickly and without the cost of a trial. Furthermore, in a complex case the contingency fee may work out to be less than an hourly rate. But this is just another risk taken on by the lawyer.
What is a Retainer?
A retainer is an amount of money paid to a lawyer as a deposit in advance for the work he will do for a client on a specific matter. This money is held “in trust” for the client until fees or expenses are incurred on behalf of the client. The lawyer may take payment for outside costs or “disbursements”, such as couriers or expert's reports, directly from the retainer deposit that is held in trust. When it's time for payment of his fees, he will first invoice the client. Then he will take money from the trust account as fees to himself. When all the retainer has been used up, his client may be asked to make a new deposit to the retainer account.
What do you mean by “In Trust”?
A trust account is a separate bank account where a lawyer puts other people's money. A lawyer must strictly account for any money going in or out of his trust account. When a client gives a lawyer money to be held “in trust”, that money remains the client's, but is held by the lawyer. After a lawyer has completed his work for the client, and all fees and disbursements are paid, the client is entitled to have any money left over returned to the client.
What is Conveyancing?
The buying and selling of a home is referred to as a conveyance. So, to “convey” means to transfer the title of a piece of real estate. The actual conveyance of a title occurs at the Land Title Office on the completion date. It is an important, but not the only part, of a real estate transaction.
The steps of a conveyance include entering into a contract of purchase and sale, researching the status of the land title, researching the status of the municipal tax account, and the status of the strata corporation if it is a condo or townhouse.
Another big part of most home purchases is the preparation and registration of the mortgage. The lender, usually a bank, wants to know that the property tax and strata accounts are paid up. Therefore one lawyer may act for the buyer and the lender to ensure that all accounts relating to the property are paid. They also want to be sure that the title is registered in the buyer's name and then properly pledged, or charged, in favour of the lender for the amount of the mortgage.
What is Probate?
When a person dies, and leaves a will behind them, they will have named an executor to execute their wishes as expressed in the will. Before the executor can access assets, he or she must be approved by the Court. The Court issues letters “probate”, and ensures that the requirements of the law are met. Unless the will is challenged, the court does not pass judgment on it. It only approves the form of the will and the appointment of the executor. This person can then instruct banks, brokers, and the Land Title Office to deal with the deceased's assets.
Why should I have a Will?
If a person dies “intestate”, or without a will, it can cause many difficulties and complications for the surviving family. If this person has assets, someone must deal with those assets. If the deceased person leaves a spouse or children, their assets will go directly to them. Otherwise they go first to parents, or then to brothers and sisters and to children of predeceased brothers and sisters. Then to cousins, second cousins, etc. This would happen regardless of what the deceased person's wishes actually were.
Furthermore, a curious situation can arise when a couple dies at the same time and neither of them have any children or a will. If there is evidence that one person died first, then his or her assets will pass to the survivor. Or, if there is no evidence who died first, then the older person is deemed to have died first, and his or her assets will pass to the younger person. The younger person then dies possessed of all of the couple's assets, which then pass to that person's family (parents, siblings, cousins). This completely excludes the family of the first person to die. Accordingly, having a pair of mirror image wills can ensure that the couple's assets go wherever the couple wishes.