Finding a reputable law firm to take the place of Heenan Blaikie LLP hadn’t been that easy, not because of a shortage of lawyers (the telephone books were brimful of them) but for lack of sufficient information. In the age of the Internet, when everything you want to know appears to be at the tip of your fingers, there wasn’t a single Web site that was courageous enough to warn prospective clients about predatory lawyers. This is even more unfathomable given that legal costs can eclipse any other single expense a person might incur in a lifetime—which, in my case up to this moment, has proven to be true.
Not wanting to take an unnecessary risk, I focused my search on law firms that gave the impression of being established. I eventually picked Davis LLP, then known as Davis & Company. From the firm’s photo file, I chose a young lawyer, David Foulds, to be my counsel of record. His rate, $275 an hour plus GST, appeared to be affordable. His limited experience didn’t cause me much concern, since I was retaining the law firm, not an individual; if the need arose, there was always a houseful of experts that he could consult. (That was one of the lessons that I picked up from Heenan Blaikie LLP: a person strapped for money should retain a major law firm but pick a young staff member for day-to-day dealings.)
When David Foulds took over the case, the foundation work was already in place, so he could start by examining the defendants. Examination of Noah Richler, the primary defendant, took place over a three-day period beginning on February 17, 2003, and Jonathan Gatehouse, the only other defendant, was examined on May 17, 2004.
On the first day of my examination for discovery, June 3, 2004, the National Post’s lawyer, John Webster, offered to settle out of court. In a closed-door session with David Foulds held during a recess, Webster broached the idea. David Foulds shared with me the gist of the offer: the National Post was prepared to reach an agreement, but if we were “trying to dig gold,” they would fight to the bitter end.
I felt the offer came rather too early; I had been under the impression that lawyers discussed settlement outside the courtroom, mere hours before the trial began. I wanted to hear David Foulds’s recommendation, however, before reaching a decision. He said to me: I don’t advise you to consider settling yet. He argued that John Webster, who had taken over the case only a short time before from Stuart M. Robertson, the lawyer who looked after the file for almost four years, didn’t know the details of what he, David Foulds, had asked in undertaking during Noah Richler’s examination. I followed David Foulds’s advice.
In the summer of 2004, shortly after my examination by John Webster concluded, I depleted my savings. I could no longer write a five-figure cheque. But I continued to pay my debt. Each month, I sent David Foulds a minimum of $1,500 from my engineering paycheque. Although I never skipped a single month’s payment, David Foulds’s performance became sporadic; then he stopped work entirely. For an entire year, from September 2005 to September 2006, the case lay dormant. He never communicated with the opposing counsel or me during that time. (See the evidence in the last page.)
I still didn’t own assets that I could sell to raise the lump sum I needed to induce David Foulds to revive the case; I didn’t even own a car. The obvious solution would have been to offer him a share of the money that I would get in settlement. After all, John Webster had indicated to him the willingness of his clients to settle out of court. But, I recalled, the law prohibited contingency-fee arrangements.
In desperation, I began spending heavily on lottery tickets, particularly on those that promised a higher chance of winning and cost $100 apiece. Some months, I spent hundreds of dollars on these illusive promises. I had seldom played the lottery before. I had always said that the only thing I got for free was the air that I breathe. Now they seem to be my only lifeline.
I never won the lottery. But in the summer of 2006, I found out that the laws that banned contingency-fee arrangements had been abrogated four years before, in October 2002! I was a little disappointed that David Foulds hadn’t brought this to my attention, but I felt I understood his reason: he may not have wanted to be seen to be pursuing this lucrative deal when I could pay his bills by instalments. I was full of hope when, on September 20, 2006, I wrote him a letter making him an offer. I left it to him to suggest the percentage of the settlement he wanted; I was prepared to give him up to 45 percent if that was what it took to revive the case.
If for some reason the contingency-fee arrangement was unacceptable to him, I offered to continue paying him as before, in monthly instalments. “For your peace of mind,” I added, “I will sign a contract stating that your outstanding invoices will first be deducted from future settlement—before I see a penny.” Before ending the letter, I made one last attempt to strike a responsive chord, telling him of the psychological toll the media attack had exacted on me and of the financial sacrifice that I had made in getting the lawsuit to where it was. I enclosed a copy of my newly released novel, The Unfortunate Marriage of Azeb Yitades, and a couple of rave reviews the book had received. Then I waited anxiously for his answer.
I never got one. As with many of my previous letters, this one too fell on deaf ears; he didn’t even acknowledge receiving it. If I had had any doubts of his intentions before, they were now permanently erased: David Foulds wanted me to go away and make room for someone for whom money was no object. But he couldn’t say that to me in as many words since I had paid my bills in full. And I had behaved decently in my dealings with him, always saying “Thank you” even when I had no reason to be thankful, and never questioning his billing even when I felt I had reasons to.
Looking for another lawyer at such a late stage would have caused me many setbacks. First, there was the additional financial burden. Because of the sheer volume of material involved (there were nine large cardboard boxes of documents, totalling over 10,000 pages), any new lawyer that I might hire would need to spend days, if not weeks, just to get a handle on the case, at an extra cost to me of no less than $20,000. It would take me one whole year to save that sum of money from my engineering job, my main source of revenue. Second, there was the question of the replacement: what guarantee did I have that the next law firm I hired would treat me any better than Davis LLP just did?
On October 10, 2006, two weeks after my last letter, I sent David Foulds another. “Mr. Foulds, you are still my lawyer,” I reminded him. “I have paid your invoices in full. I have discharged my end of the bargain and expect you to do the same as well.” And I added, “This is the last such letter I am sending you.” I took the unusual step of sending him the letter by registered mail; I didn’t know if the company logged every piece of mail that came into the office, but I wanted to be certain this one was.
And this last measure made all the difference. A mere three days later, the time it took for regular mail to reach its destination within the city limits, I got a telephone call from David Foulds. He was prepared to revive the lawsuit, but to discuss the conditions he wanted a meeting. This took place a few days later at his office, in the presence of Stephanie Fell, his young protege, whom he wanted to look after the case under his supervision. I didn’t object to the idea, although I knew it would mean extra expense for me. (Her rate, $210 an hour plus GST, was scarcely less than his, and since she spent considerable time discussing the case with him, I ended up paying more than I would have if he had worked on it by himself. And Stephanie Fell’s involvement didn’t last long. For reasons unknown to me, a mere four months later she was removed from the case; thereafter, David Foulds handled it by himself.)
The conditions set down by David Foulds for reviving the lawsuit included that I pay him in advance for his services; he demanded that I send him a minimum of $1,500 a month, to be deposited in an account that he termed the trust fund, which would be administered by his office. The money would be used towards the payment of his invoices only if I couldn’t settle them upon receipt, he noted. Otherwise the fund would grow in the account, ensuring his continued service. He advised me that if the case went to trial, it might place an additional financial burden on me. The trial might last up to a week, he estimated, and the preparation that he would need to defend the case in court might take at least that long. If the case got that far, he would want a lump sum covering both the preparation and the trial. The trial was a long way off, however, so that did not bother me. What I was curious about, though, was why he hadn’t taken the offer I had made him. Didn’t Davis LLP endorse contingency arrangements? David Foulds gave me the answer even before I asked the question. Davis LLP does allow such arrangements, I learned, and in fact one of his colleagues had advised him to accept the offer, but he rejected the idea.
On October 25, 2006, I sent David Foulds fourteen postdated cheques, as per his instructions, each one in the amount of $1,500. And he resumed work, careful that his fee didn’t exceed the amount in my trust fund. When it reached the stage where David Foulds gave me one half of a document one day and the other half three months later, just to drag out the case, my spirits sank to their lowest. That day, February 14, 2007, I e-mailed him: “I know that I am at your mercy and there is not a thing I can do about it. But there must be a higher power that you fear, and I petition you in the name of that power to do the right thing and breathe life into the case. My life is wasted waiting for this case to be resolved.”
By the summer of 2007, it had been five years since I retained Davis LLP, and the case was finally ready to be filed in court. The examination for discovery of all parties had been completed, and the undertakings had been addressed. But getting David Foulds to take this last step proved difficult. My frustration showed in the e-mail that I sent him on July 13. “Are you, or aren’t you, going to stop this endless procrastination and schedule the trial date?” I asked him. “If the answer is ‘yes’, I would like to know how soon you intend to do that. If, on the other hand, your answer is ‘no’, or if your schedule is measured in months, I don’t want to hear your reasons. You will give your explanation to your colleagues and partners, as I am going to hold Davis LLP responsible for your intolerable conduct, not you.” And this e-mail spurred him into action. On July 19, 2007, only a week later, he filed the case in court. Then the waiting began again, for the court to respond.
Having waited long enough, on November 13, 2007, I sent him a follow-up letter.“It has been four months since you filed the case in court,” I reminded him. “I am surprised you haven’t heard from them.” And I asked him a set of questions, to ensure that he had done everything necessary. When I didn’t hear from him, on November 16, I sent him a reminder. Three days later, on November 19, he e-mailed me to say, “I am in receipt of forms from the court that are to be executed cooperatively with the other side.”
In fact, the court had sent him the forms a month and a half earlier (on September 28, 2007); he kept them not only from me but also from Mr. Webster, whose co-operation was needed to execute the two-page document. It would be almost another two months, during which time I would shower him with a flurry of e-mails, before David Foulds returned the completed forms to the court and the mediation date was fixed, for April 24, 2008.
On January 8, 2008, I decided to share with David Foulds the one thing that had been weighing heavily on my mind ever since the day, over a year earlier, I had asked him to resurrect the case. “When you left the case dormant for an entire year and I was looking for a way to get you to revive it,” I e-mailed him, “I was faced with a major dilemma: Even if I managed to persuade you to breathe life into the case, would you be willing to pursue it wholeheartedly? And when I offered you a share of the final settlement as an incentive and you said you preferred the payment in advance, before even providing me with the service, I couldn’t help but wonder if you were not going to tell me in the end to settle for a pittance.” What I wanted to know was the amount of the damages that he considered appropriate now that he had seen all the evidence.
David Foulds mulled over the question for a couple of days. Then, on January 11, 2008, he e-mailed me his response—and also sent me a hard copy by registered mail. “I have considered your e-mail carefully,” he wrote. “Having done so, I regret to advise you that I have concluded that our firm can no longer continue to represent you in this matter.” He argued that I had shown “a loss of confidence” in him. “It would not be professionally responsible to represent you when you have expressed doubts about my willingness to pursue your case wholeheartedly, suggested that I have preferred my own interests over yours, and maintained that you have ‘suffered under the firm.’” I had the right to appeal his decision in court, he informed me. It could be done “in the first week of February.” And he returned to me the balance from my trust fund, some $6,000.
The lawsuit had cost me $140,000 in total, not including the $25,000 that Heenan Blaikie LLP and the firm’s good lawyer, Jonathan Stainsby, kindly wrote off. My payment to Davis LLP alone was $65,000.