As the client, you should be aware that your lawyer must provide you with a bill that shows a breakdown of his or her fees (usually based on an hourly rate or an agreed-upon flat fee) and disbursements. Disbursements are expenses your lawyer has paid on your behalf to other parties who have provided services for your case like process servers, as well as other items such as postage and photocopies. If at the end of your lawsuit you have not received a bill, the first step you should take is to contact your lawyer to request one.
Attempt to Come to a Resolution with your Lawyer
Your lawyer should be able to tell you exactly what steps they took in your case and how much time was spent on those steps. If you feel the bill is too high, the first step you should take is to speak with your lawyer about the entries on the bill and/or your expectations as he or she may be willing to reduce the account.
If you are unable to settle the dispute over the bill directly with your lawyer, you should contact the Assessment Office to have your bill reviewed. An assessment hearing is a process in which an assessment officer (adjudicator) of the Superior Court of Justice reviews your lawyer's bill to determine whether it is reasonable or whether it should be reduced.
Initiate an Assessment of your Lawyer’s Bill
You must begin your assessment within one month from the date you received your lawyer's bill, otherwise you will have to get permission from the court or lawyer to have the bill reviewed. This additional step will likely cost you time and money, and you may not receive the judge's permission.
Once you initiate an assessment of your lawyer’s bill, there are several steps that occur before the assessment hearing will take place. You should also note that, while you do not need a lawyer to represent you at the assessment hearing, it may be prudent to retain a lawyer to assist you, as an assessment hearing, though more informal, proceeds in a similar fashion as a trial.
Before you attend the assessment hearing, there are a few administrative steps that take place, which are as follows:
The Preliminary Appointment: The purpose of the Preliminary Appointment is to agree on the amount of time required for the assessment hearing, select a date for the assessment hearing, determine whether the parties are willing to participate in mediation and, if so, select a date for mediation. At the end of the appointment you will receive a document from the court which sets out the date for mediation if agreed on and the dates for the final assessment hearing.
Preparing and Exchanging Document Briefs: The lawyer whose fees are being assessed should also send their bills, supporting work, and retainer agreement to you or your lawyer prior to the assessment hearing. As the client, you also have the opportunity to submit any documents that you believe are relevant for the hearing. The law has established that it is up to the lawyer to prove that their bill is fair and reasonable. As such, it is very important that the lawyer be able to provide evidence of the work they have done on your file.
What Does the Assessment Officer Consider When Looking at the Bill?
If you are unable to resolve the dispute with your lawyer prior to the assessment hearing, it is important to understand how the assessment officer will evaluate the lawyer’s bill. The Courts have established a well-known list of factors which are used by assessment officers to determine whether a bill is fair and reasonable, these factors are as follows:
(a) the time expended by the lawyer;
(b) the legal complexity of the matter;
(c) the degree of responsibility assumed by the lawyer;
(d) the monetary value of the matter at issue;
(e) the importance of the matter to the client;
(f) the degree of skill and competence demonstrated by the lawyer;
(g) the results achieved;
(h) the ability of the client to pay; and
(i) the client's expectation as to the amount of the fee.
The assessment officer has the discretion to assign whatever weight he or she finds appropriate to each of these factors. No one factor is necessarily more important than another and all of the factors may not be relevant to your matter. However, as the client, you or your lawyer should be prepared to explain why your bill should be reduced, keeping each of these factors in mind.
An assessment is a lengthy process that requires a great deal of preparation. Whether you retain a lawyer to assist you or represent yourself, it is important to be aware that there is a process in place to address your concerns if you believe you are being billed unfairly and to understand the factors that are considered in an assessment hearing.