Monday, April 30, 2012

What makes a good lawyer? Howard Levitt knows.

I am a regular reader of the online version of the Financial Post.  I recently came across an article entitled "What makes a good lawyer?"  written by Howard Levitt who is a senior partner at Levitt LLP a law firm in Toronto, Ontario.  I thought Mr. Levitt's comments were interesting and I am sharing an abridged version of the article (the reason I am doing this as well as providing the link is that one day the link may not work).

"What makes a good lawyer:

  • Knowing the law: The better you know the law, the more defences you can construct, which slip undetected by those less knowledgeable.
  • Understanding the "hidden persuaders: " This combines an instinct for the jugular with a knowledge of legal regulations and corporate practices.
  • Most cases settle. The amount of that settlement may have more to do with the company's need to settle than with the case's intrinsic merit. 
  • Analytic skills: Ultimately, employment litigation (or any litigation) is about placing the "facts" within an impregnable theory of the case. To do so, you have to command a mastery of the weaknesses of your side as well as its strengths and synthesize the entire case into a three-dimensional picture, which is impenetrable to opposing theories. To accomplish this, you have to anticipate all lines of attack and ensure your theory of the case, and your witnesses, can withstand them.
  • Understanding psychology: This not only assists in probing the other side's weaknesses, but provides insight into how to "tell your story" in the manner most likely to be believed. It also instructs what to emphasize and when to settle.
  • Understanding negotiations: There is a propitious time to settle and there are times to do nothing. If, for example, you are about to go to mediation or a pretrial, any offer made will simply be used as the basis for yet further increases. A lawyer's job is to assuage the clients' anxieties and conceal their vulnerabilities;
  • Sales skills: Ultimately, lawyers are salespeople. You have to sell yourself to the other side, the mediator and the judge and convince them that your case is overwhelming. If you lack those skills, your prospects of success are limited.
  • Client control: A lawyer's advantage is detachment from the client's anxieties and personal views of their case. Ultimately, you must do as the client instructs. However, your job is to strongly influence that. (Some litigants) are desperate to settle as quickly as possible, often at the expense of their case. (A lawyer's) job is to influence their subjective views with informed ones. At the end of the day, that is much of the reason why they are not representing themselves - and shouldn't be.
  • Witness-preparation skills: How a client performs has everything to do with preparation. Counsel must have suffi-cient trial experience to accurately predict what is coming and assist in coaching their witnesses as to how to answer. I try to anticipate questions in cross-examination and prepare answers that will explode on opposing counsel when that question is asked.
  • Trial experience: Shockingly, only a handful of members of the employment bar, even senior ones, have conducted trials or, at least, any major ones. Few have done appeals. This impacts on how they are perceived by opposing counsel and how strong their actual bargaining power is in settling cases.
  • Proportionality: However brilliant their victory, no client is happy when their legal fees are disproportionate to the result. Not every case can be treated with the rigour of one involving tens of millions of dollars, or of an appearance before the Supreme Court of Canada. Clients think in terms of paying for the developments in a case, not for how many hours the lawyer spent on it. I also urge my juniors to ensure they spend their energy accordingly. Clients never appreciate handholding when they receive the bill for it.
  • Digging deeper: Some cases have come to me over the years that appear, on their face, to be almost hopeless. Few turn out to be. Good lawyers keep digging into the facts and are alert to the opportunities when they arise."
         (My emphasis)

Obligations of Boards of Directors and Property Managers

It has been some time since I lasted posted to my blog.  My not regularly blogging is unfortuneately illustrative that "the road to hell is paved with good intentions".  On a go forward I will try to be more diligent.

I am proud to say that I am still not too old a dog to learn new tricks and recently learned how to set up RSS feeds.  From this the Morris v. Condominium Corporation No. 074 0215, 2012 ABQB 265 decision was delivered to me via my reader Feeddler.
This case is noteworthy because Master Smart appointed an inspector pursuant to section 67 of the Condominium Property Act (Alberta) (the "CPA").  The case now clearly establishes the principle that if condominium corporations fail to honor the obligations imposed by the CPA that the Court will intervene by appointing an inspector.  This is a serious remedy which Boards and Property Managers should avoid.
There is curious language in the Morris case indicating that property managers should not stand by and allow the obligations under the CPA to be ignored.  Though no relief was granted against the property manager the case may be relied on to establish the standard of care which a property manager owes to owners in condominium corporations.  I would encourage property managers to review the case and be careful to advise their condominium corporations accordingly.