Howard Levitt
National Post
December 6, 2006
"Winning may not be everything, but losing has little to recommend it." -- Dianne Feinstein
Winning a wrongful dismissal suit, like any lawsuit, is a function in roughly equal measure of the judge you draw, the strength of your case and your lawyer; the latter being the one factor you can control and the one that can influence the other two.
While you cannot pick the judge, if your lawyer's knowledge of the judge's record is better than that of your opponent's lawyer, you may strategically settle when the judge is announced.
And while you cannot change the facts, a good lawyer can make the most of them.
But with unlimited legal advertising and close to 60,000 lawyers in
SPECIALIZATION Most wrongful dismissal cases are still handled by non-specialists, whether general practitioners, civil litigators or even labour lawyers focusing primarily on union-management issues. You neither want to pay for your lawyer's education nor miss defences or claims your lawyer is unaware of. Before retaining a lawyer, ask whether he practises exclusively in employment law.
TRIAL EXPERIENCE Ask your lawyer how many trials he or she has conducted. Many of the best-known wrongful dismissal lawyers have never, or seldom, conducted a trial. Clearly everyone would like to settle their cases out of court, but the best results occur only when your opponent knows you are prepared to go all the way.
SKILL You want a lawyer with a reputation for winning. That, too, will determine your bargaining power and prospects for ultimate success. If your lawyer has lost cases, how successful has he been at converting that to a win on appeal? If you have access to the Quicklaw data base, search for any dismissal decisions your lawyer have been involved in. If you don't find any, or at least, not any successful ones, use someone else.
EXPERTISE AND ACCOMPLISHMENTS How long has the lawyer been practising employment law? What texts, publications or law reports has he or she written or edited and are they serious texts referred to in court judgments? Has the lawyer spoken at professional conferences? If so, are they conferences of the Law Society or Bar Association, or audiences where they effectively volunteered? Has mainstream media sought their opinions?
Similarly, being at the top of Google, etc. may have more to do with the fees the lawyer pays to Google or the strength of their Web campaign than it does with expertise.
STYLE The lawyer should provide you with an accurate assessment of your strengths and weaknesses, rather than tell you what you want to hear in the hope of being retained. He also should write demands that will be treated seriously, and not make extravagant claims that may make your opponent man his or her battle stations.
Similarly, from the employer's standpoint, counsel should be respectful, yet not prepared to pay too much of the company's money. Too many Canadian employers boast about how they are never sued, rather than considering how much they could have saved in unnecessary severance.
An employer's counsel should provide advice with appropriate balance and be prepared to plead and argue cause, when to do otherwise could set a dangerous precedent for the company.