Lawyers are taught to take detailed notes. Every conversation with a client, whether in person or by telephone, or written in a document or email, is recorded in order to back up actions taken and matters billed. It’s what you turn to when your client says “I didn’t tell you to do that” and you face a complaint.
Recent estates litigation in Ontario turned on the exemplary note taking of Solicitor Barry Smith. As noted by Gans, J.: I digress to make one observation. Smith, who had been Helen’s, if not Eugene’s, solicitor for at least 7 years by the Spring of 2011, would best be described as an ‘old-school’ solicitor. He was not only a generalist, who made ‘house calls’, but was a man who was involved or involved himself with every aspect of a client’s affairs. He made copious notes to file, which I found to be unassailable in terms of providing me with the details of the events as they unfolded during the Spring and into the Summer of 2011.
This case involved all the usual suspects: a large estate, a testator recently diagnosed with Alzheimer’s, a power of attorney clash, and undisclosed codicils. But it was the note-taking by Mr. Smith that persuaded the judge that Mrs. Kates was competent.
When reading Kates Estate, 2020 ONSC 7046, don’t ignore the footnotes. There are some very interesting comments there as well.
“The Importance of Keeping Good Notes”, Richard Worsfold and Reshma Kishnani, The Lawyers Daily, January 29, 2021.