Uncertainties in Litigation – Hull on Estate and Succession Planning #166
Listen to Uncertainties in Litigation
This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the uncertainties in litigation. They look at the great uncertainty of interlocutory (or injunctions, or motions) throughout the process.
They talk about the motions that are brought often that can create budget difficulties due to the unknowns in litigation.
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Welcome to Hull on Estates and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag. The podcast you’re listening to will provide information and insights into estate planning in Canada. From the offices of Hull & Hull in Toronto, here are Ian and Suzana.
Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 166 of our podcast on Tuesday, May 26th, 2009.
Ian Hull: Hi Suzana.
Suzana Popovic-Montag: Hi Ian, how are you today?
Ian Hull: I’m doing great, thank you.
Suzana Popovic-Montag: That’s good.
Ian Hull: So one of the things that we wanted to work through today and talk a little bit more about was the development of…we have always tried to encourage our clients to stay out of the litigation process because of the uncertainty. And one of the great uncertainties is what we call interlocutory or injunctions or motions or mid steps throughout the process. And we thought we would try to illustrate our point to show how crazy litigation can get and how some of the tangents it can turn without an ability to predict by talking a little bit about the kinds of motions that are brought often or some that aren’t brought often but can create a whole new chain of events in terms of costs and difficulties when you’re trying to resolve the problem in the litigated Court format.
Suzana Popovic-Montag: And I think, Ian, this is a good discussion to have because it helps us explain as lawyers why it is that our clients are saying well how much will this Will challenge cost, that we give them a range from A to B, but you know it’s got a whole bunch of unknowns in between because some litigation can be run quite smoothly. Other litigation, you never know what’s going to arise. And the other intangible, of course, is you don’t know how the other side or the other sides are going to respond in kind to any of these steps as well. So that’s where our uncertainty in terms of budgets for litigation comes in and some of these motions that we’ll discuss will be illustrative of that.
Ian Hull: Absolutely because in some ways, when people get into and embroiled in litigation, it becomes a little bit of, well one person does something and the other person wants to fight back and do something else. And it becomes strategic. And a classic example is when you get into scenarios where someone will say well look, insufficient disclosure has been provided. For example, you haven’t provided me with all the historic Wills or the notes relating to the Wills. And then the other side will come back with a motion saying well, insufficient information is provided in respect of your claim. You haven’t showed us any financial interest you have. You haven’t showed us any of the corporate records that might be relevant or something like that. So that’s just an easy illustration, and we’ll talk about particulars now. But that’s an easy illustration of how, from a strategic standpoint, these things explode and each motion is literally tens of thousands of dollars, regardless of how we want to do it. And so you put the strategic overlay onto this and then talk about some of the easy hot buttons that people can press.
Suzana Popovic-Montag: And we talked during our last podcast about one of the easiest examples of a motion that can arise and that is, during a discovery process if questions are asked and for whatever reason counsel decides that they’re not going to answer questions, then we’ve got to bring a motion to get those answers from the parties who’ve been examined. And that will ultimately depend upon a determination by a judge as to relevance, whether or not the question is one that is relevant to the litigation, whether it was properly asked and if it has to be answered.
Ian Hull: So you can see, like that example alone demonstrates just how crazy things can get. Because what you’re ultimately doing is, say you say to the witness on the other side as you’re learning about your case, to that witness who is just alleging that the Will is invalid or something. And you say well, you know, what facts do you rely on in respect of that allegation? And for some reason their lawyer decides that they want to, for strategic reasons, be difficult and they say that’s not relevant. So you can’t even scratch the surface of your claim without going back to Court to get a motion to release that information and to release the witness, so to speak. And all of those steps are literally tens of thousands of dollars. And really the thing that’s most upsetting and disturbing for most clients is that a lot of these interlocutory motions tend to be sort of based on strategic steps, as opposed to economic or really how important they are or not important they are. And, you know, when we unleash people into litigation, we forget that there’s going to be an overlay, a tremendous overlay of strategic steps that people are going to take, motivated maybe to beat up the other side, maybe to flesh out their case, maybe just legitimately to understand their case better. But that uncertainty is obviously there, and who knows? One party may react differently than the other parties.
Suzana Popovic-Montag: Another situation where again you can’t predict or control is when you have a lawyer that you want to examine or their file that you would like to obtain, for instance, a Will challenge. The lawyer’s evidence is going to be quite crucial and many times in those situations, the lawyer will get counsel, counsel will insist on a motion to be brought to waive solicitor/client privilege to compel the individual to produce their file and to compel them to attend at discoveries as well. Again, another step that, you know, it seems self-evident, seems very important that information. But we’ve got to jump through a couple of hoops in order to get that evidence properly before the Court.
Ian Hull: Absolutely. And one of the things that we find really upsetting and frustrating is anybody who’s on a fiduciary role, is in a fiduciary role, an executor or trustee, when they behave arrogantly. We sometimes have to run to Court to again get a Court or a judge to say you can’t behave that way. And an easy example there is where a fiduciary or a trustee will not disclose the Wills, or more importantly won’t disclose the assets. And you have to bring a separate motion for disclosure of the assets alone. Before you even get into the fight, you’re into a motion on a procedural point because that trustee is acting either arrogantly or is acting strategically. And they look at this and say well look, they’re not going to have the energy or the money and the wherewithal to really push me on this, so let’s just ignore them or let’s act arrogantly and say you’re not entitled to it and make them go to Court. And by the time they get to Court maybe they settle at the Courtroom door, maybe they don’t, whatever. They have created what is really a strategic and sometimes, in some cases, is a bit of a bully tactic, but can be effective because of the economics of the process.
Suzana Popovic-Montag: And ultimately as well, many times we’ve seen situations where we’ll actually litigate the issue, that motion, and then a judge will reserve costs, rather than taking the opportunity to possibly penalize the party that maybe they view as having acted improperly or certainly that we would have viewed as acting improperly. And then they don’t make that cost Order, they’ll save it for the end of the day, which is of course a reasonable award to make by a judge. But litigants and clients in particular can be quite upset by that result, I think.
Ian Hull: Well and it’s all a part of the unknown. And whenever you step into the process, if you’re going to step into it, the more educated you are about the process, the better off you are. You know, just to simply say to a lawyer well we’re going to write a blank cheque and you do whatever you have to do and whatever you think should be done is one approach. But most people wouldn’t renovate their house on that basis.
Suzana Popovic-Montag: That’s for sure.
Ian Hull: So you’re going to want to be active, you’re going to want to make those strategic calls. Well how important is that? How unimportant is it in the whole scheme of things? And maybe you are trying to look strong and powerful in what is a contentious, gladiator-like relationship. All of those are legitimate motivations but, you know, people should…it seems to me with our clients, we really need to make sure they understand going into this (a) as you say, we don’t have control over the agenda; and (b) sometimes these motions and things like that can be appropriate and are the sincere and legitimate inquiries being made or being sought by the Court Order. So, you know, as we work through that issue, because I mean the theme here we’ve been trying to do is talk about what we’re going to get ourselves into in litigation. And instead of just saying with a blanket “it just costs a lot”, this is part of our attempt anyway to illustrate what it does cost a lot and how much effort that’s going to involve in the process and some of the uncertainties that come with it. So that’s the motions, the interlocutory and the mid steps that we thought we’d walk through today.
Suzana Popovic-Montag: Okay.
Ian Hull: So in our next podcast we’ll finish off some of our thoughts on costs, as I say, not on the sort of broad scale but on the sort of detailed analysis approach. So thank you very much for joining us this week.
Suzana Popovic-Montag: Thanks very much to you, Ian, as well.
You have been listening to Hull on Estates and Succession Planning by Ian Hull and Suzana Popovic-Montag. The podcast that you have been listening to has been provided as an information service. It is a summary of current issues in estates and estate planning. It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.
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