Money talk is one of the last great taboos, but when it comes to clients, young lawyers need to just get over it, says Toronto civil litigator Jonathan Miller.

The high cost of litigation means lawyers tend not to have much good news for clients when it comes to billing, but he says constant communication can help soften the blow.

“It's really important to have the conversation about what you're going to charge up front,” says Miller, an associate in the Toronto office of Shibley Righton LLP.

“Once you've had the initial conversation, it's good to keep going back and touching base, especially if things are going differently than you anticipated. That way everyone is on the same page,” he adds.

Legal costs are a particularly pertinent issue for clients with matters in Small Claims Court, a forum where many young litigators cut their teeth. The rules of the court only allow successful representatives to recover a maximum of 15 per cent of the amount at issue.

“Even if the claim is $25,000 — the maximum allowed in small claims — the most you can get for legal fees is $3,750. When you're paying a lawyer by the hour, you can burn through that pretty quickly. Often, you can find the fees will exceed the amount being fought over,” Miller tells AdvocateDaily.com. “Just because the amounts at issue are smaller, doesn't mean the legal issues are any less complicated than a case in Superior Court; there are still legal tests to be met.”

Miller says even using the simplified rules of the Superior Court of Ontario, which has jurisdiction for monetary amounts in dispute up to $100,000, clients can find legal fees eating significantly into, or completely consuming, their potential final award if they have to go to trial.

He says changing the rules of the Small Claims Court to allow for recovery of a higher proportion of legal costs or increasing the monetary limit of the court would help the situation, but until then, he says lawyers can take steps to keep clients onside and costs down.

“It can be a challenge to your ability to serve clients, while still leaving something in their pocket at the end of the day,” Miller says.

Liberal use of articling students is one way to contain costs, he says, although the effect can be limited. “Even if you have students doing the work from start to finish, with some supervision from a lawyer, the fees are still going to be pretty extensive if it goes as far as a trial.”

Miller says he likes to break the litigation process up into phases, and give clients estimates of the cost of each one.

“I try to give clients a heads-up: this is what I'd expect it to cost to go to a particular point in the proceeding, whether it's the initial negotiations, or demand letters back and forth, or to the end of pleadings,” he says.

At the end of each phase, Miller tries to speak with his clients about the progress so far, as well as the outlook for future stages of the action.

“As long as you tell them upfront what sort of expenses they are likely to face, it really puts the ball in your client's court as to how they want to handle it,” he says. “I've had a client who decided to continue the action on their own, not because they were unhappy with our service, but because it was going to cost them more than they wanted to spend to continue.”

On occasion, Miller offers clients a fixed fee for particular stages of litigation, but warns that can be a risky proposition.

“If clients want a fixed fee, I will consider it, but you have to make sure the amount you charge will be representative of the amount of work you could be getting yourself into,” he says. “For junior counsel, it can be a good way to encourage a client to hire you and show them what you can do, which will hopefully help generate more business down the road.”