Litigation Funding article about UK context

Dec 7, 2016 5:02 PM

great article re litigation funding in the UK that levels the playing field and provides greater access to justice:


The Kids in the Hall Lawyer Goes Public.

Nov 6, 2016 1:14 PM

The Kids In The Hall might have created a sketch character like David Himelfarb if he didn’t already exist.

Himelfarb was their lawyer and tour manager since the mid-1980s, and bunked with them on the tour bus.

Fast-talking and prone to telling stories within stories, the colourful longtime entertainment lawyer is going public.

Not with scandalous revelations about Dave Foley or Scott Thompson — but with legal advice.

“I’m like a general practitioner and I direct people to specialists,” Himelfarb says of his start-up consulting website

Its motto: “Your brother. In law.”

AtDavid follows what I call the “I know a guy” theory.

“And not only do I know a guy, I know a great guy,” he says. “I’m not just sending anybody to some lawyer, it’s someone who is well-thought-of in the legal profession.

“I know everybody because I was social in law school,” he adds. “My friends are judges, senior partners in major law firms. I’ve had a busy practice. I’ve had 35 years’ experience in all areas of law.

“If you’re in trouble, say getting divorced or you’re charged with DUI, first thing you’re going to do is ask your friends if they know a good lawyer. And they may know one. But if they don’t, you can call me. No one would ever second-guess my decision in referring a client to a particular lawyer.”

His website is pretty entertaining — primarily for the hilarious testimonial videos from clients like Foley, Mark McKinney, Kevin McDonald and Jason Priestley.

And hey, the first consult is free.

My own history with Himelfarb goes back as long as long as The Kids In The Hall’s. His name first made the news in the mid-’80s when he sued Cadbury over a series of chocolate ads that used celebrity lookalikes of stars like Burt Reynolds, Bo Derek and Chubby Checker. I first interviewed him then.

“That was misappropriation of personality, something I’d researched a lot in law school,” Himelfarb recalls. He’d written about the subject in an entertainment trade mag and was contacted by reps for Derek and her husband, John. After taking them on as clients, “I called Burt Reynolds’ reps and said, ‘How much are you getting paid? Because my guys aren’t getting paid anything.’

“They said, ‘What are you talking about? We don’t know anything about this.’”

The ads were pulled. There was a settlement. “And the advertising community wasn’t particularly fond of me after that,” Himelfarb says.

Though he’s done all kinds of lawyering, the problematic playing field that is Canadian entertainment remained his first love. As a junior lawyer, he’d already represented Dave Thomas and Rick Moranis for the movie Strange Brew when he was approached by KITH’s Bruce McCulloch on a private matter. When the troupe was signed by Lorne Michaels’ Broadway Video, Himelfarb was there.

But it was after the Kids’ TV series was cancelled by CBC and CBS that he found a new role as a manager. “When they blew apart, I put them back together to do shows. It was, ‘Let’s do three shows or four shows at Just For Laughs.’ Then, ‘Let’s record it.’ Then we found there was an enormous appetite in the U.S. to go back on the road.

“So we did three tours, and each tour I needed to be less hands on. And now they’re able to do it on their own.”

A lifelong entertainment fan, Himelfarb gave his own kids “a close-up look at professional showbiz. We were like gypsies. They slept on the bus with the guys. Two of my three kids, eight berths in these tour buses. Five (Kids In The Hall) guys, me and two kids.” He recalls the troupe putting his son Richie onstage in San Francisco as an extra in the “Citizen Kane” sketch.

“My oldest was, like, 9. They were young and cute. There was outrageous stuff like Scott having a meltdown and my kids watching him, their mouths open.”

He pauses and adds, “It could be difficult too, because Kids In The Hall was a fractious family.”

“It took time away from my practice, but it was an amazing and unique experience.

“I really love practicing law,” Himelfarb adds. “I really love helping people. And in entertainment law, besides getting paid, they come around and hug you.

“You don’t usually get that from insurance guys. They pay you — reluctantly.”


Of course you should get it in writing!

Aug 3, 2016 7:31 PM

There is no question that if contracting parties want to protect their interests, they should put their agreements in writing. The agreement does not have to contain any special legalese, but it should be clear and concise. It should describe what the parties’ expectations are of each other. It should be clear enough for a third party (say, a judge or an arbitrator, for example) to understand what the parties intended.

Basic English will suffice. For simple agreements, wording such as the following is a good way to begin a “letter of agreement” addressed from one party to another:

            “Dear [Name of individual or company], this shall serve to confirm our understanding and agreement relating to [whatever the subject matter of the agreement is, such as, for example, “your distribution of our product in the territory of Ontario for (such and such a period)”] upon and subject to the terms and conditions set forth herein:….”

Then you set out the significant terms and conditions that apply. As well, the agreement should be dated and signed by the parties intending to be bound.

Of course, it is strongly suggested that you obtain the advice of a commercial lawyer to assist with properly drafting the agreement between the parties. However, as between no written confirmation and a written confirmation of the terms of an agreement, a written one should provide some evidence of the parties’ intention and, therefore, useful in a dispute involving a determination as to what the parties intended.

There are many rules applicable to the interpretation of agreements. Usually, there is a clause that states that the parties intend that the written document contains their entire agreement and that it supersedes and replaces all prior negotiations, promises, representations and agreements relating to the subject matter of the contract. That type of clause in an agreement is an attempt to prevent a party from alleging that there is more to the agreement than what is set forth in the document being scrutinized.

Often the provisions at the end of an agreement are called boilerplate or standard terms and conditions that are used over and over again in all kinds of agreements. These provisions are helpful and can prove extremely useful when a dispute arises. It is often the case that informal written agreements do not contain such boilerplate provisions and that can work to the disadvantage of one or more parties to the agreement.

If you are a contracting party, you do NOT want to end up fighting in court to resolve a dispute about the interpretation of an agreement. See my earlier blog about the nightmare of going through the court system to resolve a dispute.  In most cases, if clarity is what is desired, it is much better to be as clear and concise as possible with a written document at the outset. It makes the most sense to obtain the advice of a lawyer before hand; you may very well pay exponentially more if a dispute arises down the road. 


Fighting a Dispute with a Neighbour

Jul 19, 2016 11:32 AM

Entering into a dispute with a neighbour can be as emotionally draining as fighting with family members. It can also be financially crippling and should be avoided at all costs. A neighbour is like family; you could be stuck with them for a very long time.

I have had numerous clients in disputes with neighbours. Some have spent hundreds of thousands of dollars and others merely tens of thousands in litigation costs. One must be extremely careful not to let things escalate or spin out of control. Not only does the cost of litigation become an enormous burden, but the enjoyment of your home or other property is greatly diminished if every time you open the front door you are concerned about running into your neighbour.

Whether it is a fence dispute, a desire to pave over the mutual drive to set up a smooth surface for a basketball court, a barking dog or a bonfire with the smoke billowing towards the property next door, extra care must be taken to avoid a dispute with a neighbour.

If you or your neighbour are desirous of a change from the existing status quo, the use of finesse, courteousness and extreme caution is highly recommended and should be maintained at all times when broaching the subject. Whether in a city residence or at the cottage, people do not want to be disturbed or be asked to change their lifestyle or how they live.

You want peace and harmony. To get it, you may need the advice of someone with the right experience.



Divorce and the Nightmare For Children of Divorce

Jul 6, 2016 9:20 AM

Lawyers and the court system will NOT protect your kids as well as you can; provided that you are interested in their best interests and can act rationally.

What is experienced by children of divorce in childhood resonates and reverberates into adulthood – and, not in a good way.

Many clients and friends going through divorce or separation look to their children for emotional support or as source of love or as an ally in their disputes with their ex-spouses. NOT GOOD! A parent should NOT put their children in this position. The kids do not deserve this and it will only compound their fear and anger, no matter how mature they may seem to the emotionally fragile parent. Any exercise in parental alienation (where one parent bad mouths or denigrates the other parent) will come back to haunt the parent engaging in such behaviour. It is much better to take the high road and put the best face on a tough situation. It will take self-sacrifice and strength in overcoming the pain a parent is suffering. In the long run, the children will appreciate the effort and be better off.

It is not an easy path for a parent to suppress their ego, loneliness and hurt in this situation. However, there is light at the end of the tunnel. By keeping the relationship civil, if not friendly, with the other parent, there is the possibility of retaining some of the special moments of the old family unit (whether it's birthday parties, religious holidays or special dinners). Romantic relationships can come and go (ask the French!), but, the parent/child relationship is for life and worth being especially careful. A parent going through separation or divorce MUST suck it up and be the parent that their child needs and deserves. A good parent needs to be supportive, interested and loving towards the child. It truly is about what the parent can do for the child, not the other way around. This is basic.

I am divorced; my parents were divorced; my ex-wife’s parents were divorced; divorce happens. The legal system is not the best system to resolve emotional conflict or family conflict. For an informed approach, someone going through a family breakup should speak to someone knowledgeable about different approaches. While nothing may put Humpty Dumpty back together again, a hammer may not be the best tool for a patch job or a smoothing effort.

You want peace and harmony. To get it, you may need the advice of someone with the right experience.


Alternatives to Court Battles – Mediation

Jun 7, 2016 9:39 AM


You have to be crazy or very rich to try to resolve a dispute in court. It is really akin to two people playing “Chicken” driving their cars towards one another, hoping that the other guy swerves. Very few cases go to trial or are decided by a judge. The fighting parties get worn down by the expense and fatigue of fighting.

Legal costs related to fighting in court are enormous. The costs to hire a lawyer to act in a Small Claims Court (with a monetary jurisdiction cap of $25,000) can be as expensive as proceeding in a higher court such as the Ontario Superior Court. The lawyer has to prepare, review, respond and attend to matters related to a court proceeding, regardless of which court. 

A Small Claims Court proceeding is supposed to be a process that a party can avail themselves of without the necessity of a lawyer. A party can do so, but it’s not so simple and it’s time consuming, complicated and frustrating.

A very real, effective alternative to going to court is to use the assistance of a good, experienced mediator or arbitrator that has been properly trained and knows how to conduct an effective mediation or arbitration. If both parties are willing, a settlement can be quicker and more cost effective. Very often, if the parties in dispute are serious about resolving their differences, I recommend using an impartial third party, knowledgeable in the area involved. That process is minimalist, quick and efficient. The parties would agree that the decision of the mediator/arbitrator/adjudicator would be binding on the parties and the parties would be able to utilize their lawyers in the proceeding. Each side presents their side of the story, the adjudicator may ask questions and then he or she renders a decision. There can also be witnesses. Both sides share the costs of the adjudicator. A mediator has special skills and experience. It is critical to retain the right one. 

You want peace and harmony. To get it, you may need the advice of someone with the right experience. 





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