How to Avoid Your Day in Court - LawNow Magazine

How to Avoid Your Day in Court

jugglingWhen people think of needing legal help, they often think of lawyers, court forms, and court rooms. As those who have been there already know, it isn’t nearly as glamorous as it seems on television, and quite to the contrary, it can be quite scary. The good news is that not every legal issue has to end up there. Think of the law as a long time-line, or “spectrum”, of possibility: court is at the very end of the line. The key to maximizing your chances of not ending up there is taking a proactive approach to address the issue as soon as you catch the first glimmer of a problem (or earlier!). But where do you begin? More good news! In this day and age, there is a great deal of information available at your fingertips (or at the local library). It’s just a question of knowing when you need such information and exactly how to go about getting it.

The first step in trying to avoid the courthouse is recognizing when there is a problem that needs to be addressed. This can often be much harder than it seems. After all, legal problems don’t just walk into a room and identify themselves. The law, and its application, has an amazing ability to surprise. Let’s look at a few examples.

We’ll start with the far end of the legal spectrum: the “What do you mean the law does not cover this situation?” or “What, there’s actually a law about that?” kinds of scenarios.

  • You are a post-secondary student, and you move into a room in someone’s home. You would think that standard landlord/tenant law (which, by the way, is sometimes called “residential tenancies”) applies to your rental situation, right? Not necessarily. For example, in Alberta, it does not. Instead, the situation is governed by contract law (which is not a “law”, per se, but common law). No contract can mean lots of trouble. Surprise.
  • You move in with your best friend. Your children have grown and your husbands have passed on, so why not save on expenses? After all, you already do just about everything together. After three years, you might become adult interdependent partners (the Alberta version of common law). Yes, even without any conjugal relations. Surprise.
  • The daycare to which you send your child has asked you to sit on its board of directors. It is such a great organization; helping out is the least you could do. While this is true, if the board does not have the right documentation in place, you, as a director, could be held personally financially liable for the mistakes of the daycare centre. Surprise.

As you can see, just about anything can give rise to a legal issue. You never know when you’ll find yourself on that line. So stay aware. Start by assuming there is some kind of law involved, and look into it. This is especially true in situations in which you have some kind of responsibility to someone else, or situations in which you hear a little voice in your head saying “well, this could lead to a bunch of trouble”. So …are you letting someone else drive your car? Have a look to make sure that is covered by your insurance. Dumping things into the creek on your property? Remember, that water flows to somewhere else, and those property owners may have some rights. As an aside, it is important to remember that, not knowing about a law is irrelevant; if you break that law, you will have to face the consequences.

The next set of situations on the legal spectrum are of the ‘false assumption’ variety: the “well, that is what the law used to be 20 years ago” or “ well, I’ve heard (or seen on TV) that this is what the law says”, or “well, surely the law will say <this>, it is only logical.” A few hints in this regard.

  • Laws change. Some laws change every few years, others remain the same for decades, You should never assume that the law is the same today as it was 20 years ago, or even as it was yesterday. Even lawyers always have to double-check. For example: a few years ago, it was not a problem to talk on a hand-held cell phone while driving. Today, it is illegal and it can lead to serious penalties.
  • Laws are different in different places (sometime vastly different). They can change from city to city, province to province and country to country (this is known as “jurisdiction”). Do not assume that you know the law because a distant relative told you all about their experience. Also, American television is not a good way to do legal research. As far as the law is concerned, the U.S. is a foreign country, and the legal differences can, at times, be enormous. For example: in the U.S. there is a tax on gifts, in Canada, there is not. Another: in Alberta, one can write a will entirely in hand-writing, with no witnesses, and it can be valid Will. In B.C., however, it would not be a valid will, because in B.C., even a handwritten Will requires two witnesses.
  • Laws do not necessarily match each individual’s concept of logic. Just because you, or I, think something is logical (or just, or fair), does not make it ‘the law’. Even if 1 million people think it is fair, that does not make it ‘the law’. An Alberta example: “If I cannot make my own health decisions any more, surely everyone will just take instructions from my spouse”. Right? Wrong. That would be logical, but it is not usually how the law works. Health care workers need to know who you choose as your decision-maker, and they need the correct piece of paper to do that. Imagine for a moment a situation in which your spouse and, say, your child, are providing different instructions. Whose instructions are to be followed? No one’s. Instead, someone will have to prove that they have the legal authority to make decisions on your behalf (either because you assigned them that job before you lost capacity, or because they’ve gone to court to get someone appointed). That is the law: an individual’s perception of logic or fairness are irrelevant.

A final set of situations to consider are those of the ‘burying one’s head in the sand’ variety: the “well, I’ll just ignore this for now, as it might go away” or “it can wait, my rights won’t change” or “I’m sure the law has a back-up plan, I’ll just rely on that” kind. Let’s examine this in further detail.

  • As is usually the case in life, burying one’s head in the sand, is rarely a successful strategy. In fact, when it comes to the law, it is often the opposite: if you ignore it, it might get worse. For example: You were unemployed for two months and you missed a payment or two on your new 60-inch television, and you decide that you will just make a big lump sum payment when your income tax refund arrives. They are still getting all of their money, right? No problem, right? Wrong again. Chances are, when you signed the financing agreement, you agreed that if you miss even one payment, the creditor can come and take back the TV. The bank does not care what your plans are – it wants its money, on time. Plus, now your credit rating has just gone down (where it will stay for a while).
  • A while back, you were in a car crash. You were seriously injured, but everything has taken so long, and you are still trying to determine the exact extent of the injuries and the final cost. In every jurisdiction, there is a time limit to legal actions – if you wait too long, you might lose your right to sue.
  • You are young, estranged from your family and, should something happen to you, your friends all know what you want. So why write a Will – that will just bring the family out of the woodwork, right? And if you write a Will you have to leave something to your family members, right? Wrong and wrong. When it comes to Wills, the law does have a back-up plan, but, in this case, it is the opposite of what you want. If you write a Will, you could leave things to your friends. If you don’t, succession law will give it to family.

So what to do? Assume for the moment that you find yourself at any one of the above points on the line. In the following article by Adriana Bugyiova, who describes Alberta’s LawCentral websites, there are organizations to help with this sort of thing: and the information and resources they provide are often free. In Alberta, there is the Centre for Public Legal Education. Similar organizations exist in almost every province and territory. For example:

Plain-language legal information is also available on all government websites. They may have a separate public legal education department, as does the Northwest Territories. Alternatively, each department may choose to offer some information in the format that it sees fit. Even law firms and courthouses are beginning to provide such information.

To find public legal information, you need only search. If you can Google, you are well on your way. Even you don’t know how to Google, go to your local library and ask a librarian for help. Courthouse and law school libraries are also helpful, however, be aware that the resources there are generally not in plain language.

If you are going to go down this route, here are a few things to keep in mind:

  • Make sure the information that you are examining is current, from the right jurisdiction, and published by a reliable source. You can find more information about that here.
  • Sometimes, public legal information is available in numerous languages.
  • Look for information that can also help you navigate process. This could be general information such as: 7 steps to Solving a Legal Problem. Or it could be information about a more specialized process: for example, how to file a complaint about a guardian or trustee in Ontario.
  • Keep in mind that this is general information only, you may still need to see a lawyer to help deal with the issue.
  • Look into dispute resolution alternatives. There is much information on this topic in Margo Till-Rogers’ online law column in this issue.

The last thing to remember? If, after all of this, you do find yourself on the court end of the legal spectrum, at least you know that you did all that you could to solve the problem in other ways first. There is much good legal information out there and, when accessed, especially in a timely manner, it can help avoid that ominous end of the line: the courthouse. Hopefully it will help you, too.

Speak Your Mind

Authors:

Carole Aippersbach
Carole Aippersbach is a lawyer with the Centre for Public Legal Education in Edmonton, Alberta.
 


A Publication of CPLEA

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