Setting a Precedent

There was a report in The Globe and Mail a couple of weeks ago about a lady that was suing the man with whom she had a four year affair.  Apparently, for four years, she did not know he was married.  When she found out, she filed a lawsuit. 

She claims that, had she known he was involved with another woman, she would not have entered a relationship with him.  Her lawsuit claims that, by not knowing that information, she did not give consent to the sexual relations that occurred between them, meaning that each sexual encounter was actually a sexual assault.  Her lawsuit is claiming $225,000 in damages for the alleged assaults.  Her lawyer acknowledges that the case is novel, meaning that there is no precedent for a lawsuit like this.

I hope she has a lot of money.

"Precedent?setting" cases are not nearly as exciting as they seem.  Potential clients occasionally come in with a set of facts and claim excitedly: "This could set a precedent!"  The translation for that comment is: "Will you do this for free?" 

Here's the reality of a "precedent?setting" case.  First, they are an enormous amount of work.  Since we can't rely on precedent cases to encourage the judge to decide in our favour, we generally need to sell the case as a logical extension of the existing law or as an analogy to an existing remedy.  There is a ton of research and legal argument to be done in that regard.

Secondly, you have to overcome the skeptics.  The media, the opposing lawyers and the judges will likely have an initial reaction of: "There's no basis in law for your case: why are you wasting our time?" 

Thirdly, judges at the trial level are reluctant to make new law, for many reasons.  If they are appealed successfully, they look bad.  It is much easier to apply the existing law and make the plaintiff lose.  If the plaintiff appeals to the Court of Appeal and wins, well, the trial judge didn't do anything wrong by applying the law.

That leads to the fourth reality: you are most likely going to the Court of Appeal.  If you win at trial, you can count on the defendant appealing the decision.  If you lose, you will have to appeal to try to overturn the trial judgment. 

That leads to the fifth reality: you need a lot of money.  The legal costs are huge to take a case to trial (and a likely appeal) on an issue where there is no precedent.  Even if you win, you will not likely get a costs award to help pay your legal bills.  Courts rarely award costs to the winning party in "novel" cases.

I won't do "precedent?setting" cases for free.  You will have a hard time finding a lawyer that will.  It's an enormous gamble, with the odds against you.  I also won't take on those cases unless the client is able to foot the bill along the way. 

So if you want to make new law, carry a thick wallet and be prepared for a long, difficult legal road.