Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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Much has already been written about the trial of Conrad Black currently unfolding in Chicago. There are, of course, constant press dispatches and on-going, daily TV coverage. I will leave Conrad Black’s innocence or guilt to the jury sitting in Chicago. However, on a more subtle level, there are lessons to be learned for any party in protracted litigation.

When Conrad Black was first charged with fraud and racketeering, he was widely condemned. His critics took a certain amount of glee in seeing “Conrad brought low”. He was after all getting his proper comeuppance after years of malfeasance. However, Conrad Black did not flinch or bow to the pressure. He maintained his innocence rather convincingly throughout and clearly believed in the strength of his case.

To my mind, what has been impressive is Conrad Black’s perseverance in the face of adversity. Persevering is key to successfully litigating. It has been said that litigation is not a tea party; in fact, it’s more akin to war. A party has to have, or quickly develop, a thick skin. The opposing party and their counsel will hurl all sorts of allegations against you, belittle your case, and try to marshal evidence that at first blush may seem crushing and unanswerable. However, a party has to believe in the righteousness of their case and not lose faith.

Obviously, a party should have only commenced litigation or mounted a defence after carefully considering the facts and the law. If it was concluded that litigation was unavoidable, then a party should not waiver but persevere. A party should always consider reasonable settlement options, but nevertheless carry on undaunted.

Litigation can be difficult, expensive, and in the estate context emotional. Many litigants begin to waiver midstream wondering whether they made the right decision, if the proper evidence has been gathered, and if their case is as strong as it first appeared. However, with the help of good counsel, a party will weather the storm.

When in doubt, stop for a moment and think of Conrad Black who persevered despite the tremendous pressure and the clamour of his critics. Who knows, he may ultimately win.

Enjoy!

Justin de Vries

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MacLeans magazine’s Mark Steyn is providing an acerbic day-by-day report on the trial of newspaper magnate Conrad Black in Chicago. The trial continues a pattern by the US government to lay criminal charges in cases of alleged corporate malfeasance more vigorously following the Enron scandal.

As the historic intergenerational wealth transfer currently underway gathers steam, a well-publicised case could easily drive greater government interest in prosecuting breach of trust accusations just as Enron did in the corporate realm. Virtually all lawyers practising in the area have seen serious misappropriation of property or abuse of the vulnerable by those in a position of trust. Is this criminal? If so, will the police and crown attorneys be willing to treat it as such?

The Canadian Criminal Code certainly indicates so: it includes provisions dealing with Theft by person required to account (section 330); Theft by person holding a power of attorney (section 331); Misappropriation of money held under a direction (section 332); Criminal breach of trust (section 336); Fraud (section 380); and Assaults (sections 264 to 266). These provisions could be invoked given the right circumstances in an Estate, elder abuse or capacity case.

The Police often perceive misappropriation by fiduciaries as a civil matter. On the other hand, they are increasingly aware of elder abuse or abuse of the incapable, and far more willing to intervene.

As high-profile cases involving misappropriation of funds or abuse of incapable persons receive greater media attention, look for the legal consequences to branch out from the civil context to involve criminal charges as well.

Thanks for reading.

Sean Graham