Attorney Brings Newborn to Court Because Judge Says Maternity Leave is “No Good Cause” to Postpone Hearing

The Lawyerist - Thu, 10/16/2014 - 22:54

From the Associated Press Staci Zaretsky at Above the Law:1

An immigration judge in Atlanta denied an attorney’s request to delay a hearing that fell during her six-week maternity leave and then scolded her in front of a packed courtroom when she showed up with her 4-week-old strapped to her chest and the infant began to cry, the attorney said.

Well played, mom.

  1. Staci actually broke this story, and the AP apparently reported it without giving her credit. Lame. 

Categories: Teknoids Blogs

The Next Target

3 Geeks and a Law Blog - Thu, 10/16/2014 - 17:00
Previously I posted on some knowledge gained at the Bridgeway Conference in Nashville. I wanted to add one more item to the list.

Jeff Paquin, who now works with Bridgeway, gave a presentation called Legal Department 2050. He started by looking back at the evolution of legal departments and then projected forward on what the future might hold for them. In looking back he noted that since the mid 80's, legal departments have grown substantially. Back then about 5% of the legal budget went to pay the in-house team. A recent report shows this number is now approaching 50%. Quite a bit of this growth has occurred recently with legal departments pulling more work away from outside counsel.

Numerous reports and posts have shown that in-house legal departments have become one of the biggest competitors for outside counsel. This is not news to law firms since they are hiring these people directly from those firms. Later at the conference I had one client comment to me on the challenges they are having maintaining relationships with law firms, since they keep hiring their primary relationship lawyers away from the firms.

Jeff then took this concept and projected it forward. He runs a group called the Legal Futurists Society. Based on the collective thinking for this group, they see this growth peaking in the next 10 years.

Jeff posed a question to the audience. He asked what we saw resulting from this trend. A hand shot up quickly followed by, "Scrutiny." Everyone agreed that as legal departments' personnel came to represent greater portions of the budget, cost concerns would shift from law firms to the legal departments.

Here are my follow-on thoughts:

#1 - My reaction beyond 'scrutiny' was that legal departments are just becoming law firms. This means they will now be burdened with all the same problems a firm has in terms of infrastructure. What do they have for document management? What about KM and all of the other tools firms have in place? This will be a significant challenge for them, since law firms are still trying to figure all of this out and they are years ahead of legal departments.

Which leads to my second thought ...

#2 - In-sourcing doesn't appear to be changing the model much. Legal departments don't seem to be 'doing law' much differently. They are just doing it with lower cost resources. So the cost savings realized will only be marginal. And it won't take long for corporate leadership to realize that limitation - and to notice the size of the department has grown considerably.

So I think Jeff and the group are right. A lot more scrutiny will come to bear on legal departments. As they grow in size and cost, the cost saving target will shift from law firms' to their backs.

What's good for the goose ...?

Categories: Teknoids Blogs

In Celebration of Government Information Day, Meet a Few GovDoc Librarians

slaw - Thu, 10/16/2014 - 15:56

Today, the University of Ottawa is organizing Government Information Day to examine the many challenges of organizing, digitizing and preserving often finicky government documents.

We all use them every day: rules and regulations, Hansards, parliamentary committee reports, government agency documents, court records, official stats, public sector scientific and technical reports, etc.

Anyone who has ever had to track down an old order-in-council or find a controversial pollution report by government scientists will appreciate how hard it can be.

For the past little while, the CLA Government Library and Information Management Professionals Network, part of the Canadian Library Association (CLA), has been publishing 13 Questions With…, a series on its website that profiles a member of the Canadian library and IM community every week.

In celebration of Government Information Day, the Network has presented three profiles this week of people from the field of government documents librarianship:

 

Categories: Teknoids Blogs

Nice Try, but Claiming Copyright Won’t Save You from Discipline

The Lawyerist - Thu, 10/16/2014 - 15:31

Illinois lawyer Joanne Denison created a blog about courtroom corruption that landed her in hot water with the Illinois Attorney Registration and Disciplinary Commission (IARDC) for “alleging professional misconduct in making false statements on her Blog.” In a creative and novel response, Denison tried suing the IARDC for including content from her blog in its complaint.

It didn’t work.

(h/t The Volokh Conspiracy via TechDirt)

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Free White Paper: “10 Things the Best Law Firm Website Designs Have in Common”

The Lawyerist - Thu, 10/16/2014 - 15:17

Good design is the foundation of a website that brings in business. Whether your marketing focus is on offline networking or search-engine optimization, your website must convince potential clients to take the next step toward hiring you.

We have been showcasing the best law firm websites for five years, and we have found that the best-designed law firm websites have some things in common. A well-designed website should look good, of course, but the reason to take the design of your website seriously is because a well-designed website persuades clients to contact and hire you.

Compelling copy and solid search-engine optimization are also important, but in this white paper our focus is design — design that helps turn visitors into clients.

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How to Cite Walter Sobchak on Prior Restraint

The Lawyerist - Thu, 10/16/2014 - 15:02

First Amendment lawyer Marc Randazza has found a gem: an opinion from the Texas Supreme Court quoting Walter Sobchak in “The Big Lebowski” on prior restraint (see the video above). With this, you can cite to a case instead of a movie. Here is the citation you need:

Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).

I’m not sure about those all-caps, but I will defer to Marc.

Categories: Teknoids Blogs

My Twitter Digest for 10/15/2014

<CONTENT /> v.5 - Thu, 10/16/2014 - 14:30
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Can Language Skills Be a Bona Fide Occupational Requirement?

slaw - Thu, 10/16/2014 - 08:00

The Ontario Human Rights Tribunal recently found that when a Chinese Canadian employee was terminated from his employment, he was discriminated against on the ground of place of origin, and partly because of his lack of English proficiency.

Facts of the case

Yongbin Liu was born in China and came to Canada 10 years ago. He worked for Everlink Payment Services Inc. as a help desk support analyst on a part-time basis from June 1, 2009, to February 26, 2011, and full-time from February 27, 2011, to May 31, 2012.

Everlink provides services and technology to the financial industry.

On May 31, 2012, Everlink terminated Liu. He was told that his position was being eliminated due to reorganization and there was no other position for him in the company because he did not have the appropriate skills.

The employee filed a human rights complaint stating that the employer discriminated against him because of his race, colour, place of origin and ethnic origin contrary to the Human Rights Code. He believed he was terminated because of his accent and lack of proficiency in speaking English. He also claimed that one of his supervisors engaged in a course of harassing behaviour toward him by publicly berating him and denying him certain benefits.

Everlink maintained the decision to terminate Liu’s employment was part of a larger restructuring and not related to his language issues, and that there was no harassment.

Discrimination based on language

Liu was the sole help desk analyst. The job involved finding solutions to information technology problems encountered by other employees of Everlink. During his employment, he met the objectives on all four of his performance reviews and received a merit increase and incentive bonuses for two of those years. However, Liu acknowledged his English could be improved, and his supervisor, Steve Watkins, claimed there had been complaints about his English language skills.

After his 2011 performance review, Watkins prepared a development plan to assist Liu in improving his verbal and written skills in English, including a series of online English as a Second Language (ESL) courses and tests. However, another manager, Bruce Rice, was soon assigned to Liu and he did not follow up on the development plan set up by Watkins. In his subsequent review, Rice found that Liu met performance expectations.

Everlink argues that if the termination was as a result of poor language skills that were needed for Liu to perform his job, this termination was unrelated to any protected ground under the Human Rights Code, thus Liu’s complaint should be dismissed.

Although language is not a prohibited ground of discrimination under the Code, an employer may be able to establish that a certain level of English language proficiency is a bona fide occupational requirement for a given position. However, in order to do so, the employer must demonstrate the language requirement meets the following three-part test:

  1. It is rationally connected to the work performed.
  2. It was adopted with an honest and good-faith belief it is necessary for the fulfillment of a work-related purpose.
  3. It is reasonably necessary to accomplish a work-related purpose, and it would be impossible to accommodate an employee with the characteristics at issue without imposing undue hardship.

In the tribunal’s opinion, there may be circumstances in which an individual’s ability to speak English is connected to his or her place of origin, which is a protected ground under the Code. In the present case, the tribunal found there was a nexus between Liu’s place of origin and his perceived difficulties in communicating verbally in English. Being born in China, English is Liu’s second language and his difficulties of communicating in English stem from that fact. Despite Liu’s language difficulties, he clearly met the expectations of his job as he worked there for three years, graduating from part-time to full-time, succeeding in performance appraisals, and getting bonuses.

Without going into details, several email exchanges between management heads including HR indicated that Liu’s lack of English proficiency was a factor in the termination. However, Everlink failed to demonstrate that there was a language proficiency standard for an employee in his role, or that Liu had failed to meet any language standard.

The tribunal therefore concluded that Everlink had discriminated against Liu on the basis of his place of origin. He was awarded 11 months of lost wages and $15,000 as compensation for injury to his dignity, feelings and self-respect.

Harassment claims

Liu claimed that during the course of his employment, Ray Boorman, who in 2012 became Liu’s final supervisor, bullied or harassed him on a number of occasions by ignoring Liu, never being friendly, blaming him for things that had nothing to do with him, and shouting at him in front of other employees. In his view, this treatment was unfair.

Additionally, Liu believed that he was denied certain benefits provided to other employees such as a long-distance data travel package. He wanted the package to use his Blackberry and computer during an upcoming vacation to China. He was told that no package would be purchased for him as the company had begun to buy such packages only for executives, managers and critical support staff. He was also advised that the company would like him not to take his Blackberry with him on his vacation. Liu received a further email stating that there was an informal policy that only managers and key employees were permitted to carry the company’s equipment outside of normal work hours or locations. He indicated that the company’s equipment was not to leave the province for legal reasons that he would not get into. The supervisor ended his email stating “Personally though, Yongbin take the vacation time… Without worrying about Everlink!”

According to the tribunal, although Liu felt that he was unfairly criticized when his supervisor raised his voice at him, these incidents did not amount to harassment under the Code. In fact, Liu could show no evidence that there was a link to any of the grounds protected under the Code. At most, this was a case of general bullying, not based on Liu’s ethnicity, and the tribunal does not have jurisdiction over general claims of unfairness.

Moreover, Liu was not discriminated against because of the long-distance package issue. The evidence given by Everlink was more credible, and there was no evidence to support Liu’s conclusion that his race, ethnic origin, or place of origin were factors in the decision to stick to a strict interpretation of the company policy to deny the package.

Lessons learned

Not every instance of unfairness or perceived bad treatment results in a finding of discrimination at the Human Rights Tribunal, because there has to be a connection between that adverse treatment and a prohibited ground under the Human Rights Code. Credibility and an examination of the entire context are always considered in a human rights case. Sometimes the tribunal has to decide what happened after hearing drastically different stories, and asks what happened “on a balance of probabilities.”

However, making decisions about existing and potential employees based on English language proficiency can give rise to considerable liability. It is important for employers to avoid selection criteria that may discriminate based on how a candidate speaks (e.g., a requirement that a successful candidate have “unaccented” English language skills or English proficiency when no standards exists). If a position requires a specific degree of English language proficiency, have and apply an objective assessment that can pass the tribunal’s three-part test.

Dianne Markley, a professor at The University of North Texas (UNT), whose graduate research focused on how accents affect the hiring process, says it is “almost impossible to speak any language acquired later in life without an accent.” A UNT study showed “an incredibly strong statistical correlation between judging someone as cultured, intelligent, competent, etc., and placing them into prestigious jobs”, based on the lack of a readily identified accent.

According to Markley, an accent is “a pattern of pronunciation” that is different from whether a person uses language well and forms sentences correctly. “A person can speak flawless English, but an accent causes him or her to be seen as someone who can’t do the job.”

The requirement for English proficiency, and the degree of proficiency required, must bear an objective relationship to the essential requirements of the job, and be a bona fide occupational requirement that is imposed in good faith.

In these circumstances, the requirement for the position must focus on the particular language needed to function in the job, and not on the place of origin, ancestry, ethnic origin or race of candidates for the position.

Categories: Teknoids Blogs

Why Lawyers Shouldn’t Write Their Own Website Copy

The Lawyerist - Thu, 10/16/2014 - 06:12

So you want to write your own website copy? I highly recommend you don’t, for these two key reasons:

1. You Have More Important Things To Do

Your time is precious, which means you should focus it on performing tasks that only you can handle. Like writing a brief. Or appearing in court. Or meeting with a prospective client. The list goes on.

Your business needs you to do what you are good at, as much as possible. It does not need you to spend countless hours figuring out what pages to have on your website, what copy should go where, or which words to use. DIY marketing is not the best way for you to spend your time.

2. Someone Else Can Write It Better

This is the crux of it, of course. You went to law school to learn about law, not writing marketing copy. Even if you studied marketing in undergrad, you have not spent the past few years keeping up with online marketing trends and best practices. A copywriter, on the other hand, does just that. Such a writer also knows how to write for online users, including how to structure and format copy for greater engagement. By working with an experienced writer, especially one well versed in the law, you increase your odds of having effective website copy without sacrificing your time.

If You Insist on Writing Your Own Website Copy

Writing and publishing website copy is important when it comes to online marketing. A professional writer can capture your voice and your message. If you decide that writing for your website is best left in your own hands, however, then I suggest you embrace the following five tips:

1. Forget Everything You Learned In Law School

When it comes to writing, that is. Legal writing and website copywriting are two distinct skills. For instance, if you want to connect with your audience, you need to write at an 8th-grade level, not a 16th-grade level. You need to stop writing long sentences and paragraphs and you need to avoid footnotes and sub-clauses. And you should absolutely stop throwing around legal phrases or terms of art that people outside the legal field don’t understand. This business law firm gets it right (and may be one of the reasons it was one of this year’s best law firm websites).

2. Let Go of Your Ego

Your website is not about you. It is about your prospective clients. What has meaning in the legal community may have little to no value to people outside of it (Martindale-Hubbell ratings, anyone?). Focus instead on the fact that people are looking for your services for a reason. They need help, and they want to know whether you can help them. They are looking to see if you can answer a few simple questions before they contact you. If you deliver the basics, they will reward you with phone calls and email inquiries.

3. Put Yourself In the Shoes of a Prospective Client

What is your prospective client looking for? What are his or her concerns? What common problems may arise? How are they feeling at the exact moment they find your website? Write content that speaks to your client’s fears and future, and you will find that you have created content that truly connects.

4. Sprinkle In Some Personality

The more you can be yourself, and the more you can show your audience who you are, the greater likelihood you will make a connection with your readers. Or have fun with your site, as humor is a great ice breaker. By adding personality to your site, your have a higher likelihood of further engaging with your prospective clients, which helps bring those prospects farther down the sales funnel. One great example of personality that I’ve seen is on the lawyer profiles of this website.

5. Do Not Assume You Know How to “Do SEO”

Optimizing your website for search engines does not mean stuffing as many keywords into a page as possible. And please, for the love of all things holy, stop thinking that all you need to do is use the following combination everywhere: City + Practice Area + Lawyer.  It takes time, research and experience to figure out what works right on your website from a search standpoint. So even if you write your own content, you should still hire an SEO specialist to help with your search engine optimization efforts.

Start following these tips and you will find that your content will at least begin to outperform your competition. But if you really want to make an impression on your prospects, you are better off reaching out to a trained copywriter who understands your industry and the Web.

Categories: Teknoids Blogs

A Glimpse of Shifting Tectonic Plates in Nashville

slaw - Thu, 10/16/2014 - 06:00

The annual International Legal Technology Association (ILTA) conference was held in Nashville last month. (See Kate Simpson’s posting last year her take on last year’s conference in Las Vegas: http://www.tangledom.com/ilta-2013-in-fabulous-vegas/.) I find the ILTA conference to be very fulfilling. Not only are there a plethora of good, substantive sessions (50 or more every day, for four days), but the conference also provides an opportunity for me to have good, in-depth conversations with my counterparts in large US and Australian firms.

For those who are members of ILTA, audio recordings of five of the six knowledge management (KM) sessions have been posted on the ILTA site. So even if you weren’t able to attend, you can at least listen to those sessions. (The one KM-stream panel not recorded was the one I participated in, entitled It’s a Failure Party! How to Celebrate these Learning Opportunities. Each of us talked about various initiatives that had not been successful and what we’d learned. But in order to protect the guilty, as it were, we imposed the Cone of Silence.)

With 1,600 attendees and about the same number of vendors, trying to identify general themes is challenging. What you’ll read below will necessarily reflect my biases (cf. the analogy of the five blind men describing an elephant), but here goes.

What seemed to me to emerge from the various sessions were discussions about the effect of digitization, the effect of increasing computing power, a broader focus on process improvement, cybersecurity and the move to the cloud as both separate and related themes, young lawyers, and “What does the future hold?”

Digitization and exponential growth

The overwhelming impression I had at this year’s conference is not that just that The Change is permanent, which I think everyone from Adam Smith, Esq. on agrees on, but that it is starting to pick up momentum. (By “The Change,” I refer of course to what’s happened since the Great Recession. As someone said, “Before 2008, all law firms participated in market growth; now, we’re fighting for market share.”)

The Day 1 keynote speaker, Peter Diamandis, spoke about The World of Disruptive Technologies and Abundance. One of the key points he made was about the six stages of technical disruption, which starts the first step, the digitization of content. The disruptive change that results from digitization is, at first, deceptively slow. The first digital camera, for example, was developed by Steve Sasson at Kodak in 1975. But the company believed that it was in the business of prints and chemicals and opted not to pick up on the digital camera. It took a while to get from that initial camera, the size of a small suitcase, to where we were even, say, 15 years ago, but the change since then has been remarkable. And human beings, he stressed, are unable to comprehend the nature of exponential growth, except in retrospect.

The analogy for law land, it seems to me, is that we are seeing more and more the effects of digitization in areas such as eDiscovery and starting to see it in areas like contract review. But one of Diamandis’s points was that, once the “digital genie” is out of the bottle, it never goes back. So law firms that think that things will change but at a moderate pace and they will (somehow) manage are not recognizing the exponential effects that these changes will have on the practice of law.

The effect of increasing computing power

Perhaps not surprisingly, speakers in several different sessions, and not only Peter Diamandis in his keynote address, drew attention to the fact that IBM has partnered with the Sloan-Kettering Cancer Hospital in New York to use IBM’s Watson (famous for having beaten Ken Jennings in Jeopardy) as a tool in cancer analysis. See this article from Forbes, which notes that “IBM Watson’s business chief Manoj Saxena says that 90% of nurses in the field who use Watson now follow its guidance.”

Further, in January of this year, IBM announced that it is providing a new business unit with $1 million in funding to commercialize its use. Several speakers made the point that providing cancer diagnoses is probably at least as difficult a process as contract drafting in M&A deals (if not significantly more so!). What happens when the power of Watson is turned upon the legal segment?

Process improvement

The last few ILTA conferences have included presentations by a handful of leaders in process improvement, firms such as Seyfarth Shaw, Littler Mendelson, and Baker Donelson. What they showed us then was leading edge. This year, on the other hand, there were a number of panels on process improvement. Clearly what was cutting edge is now becoming much more widely adopted.

Cybersecurity and the move to the cloud

I attended a couple of risk management-related sessions, at which there was a focus on cybersecurity, but not just in the sense of the threat posed by hackers attacking law firm systems to access valuable knowledge about things like impending deals. One session focused on the increasing number of clients who are asking their law firms to ensure that their own content, which they view as proprietary, is locked down and only available to the lawyers working on their files. Any such initiative runs counter to the firm’s KM initiative, which seeks to leverage existing knowledge. How do we build knowledge and train younger lawyers in the face of demands for the Balkanization of firm content?

Another significant change I noted is that more firms are moving to the cloud, although at this point it is still a small minority of firms. When law firms investigate various cloud computing service provides, we were told, they expect an extremely high level of security (not surprisingly, given law firms’\ professional liability responsibility for safeguarding the confidentiality of client work). The irony, of course, is that, when they do so, they demand a level of security far higher than what is present in their own in-house environment. Most cloud providers offer far greater security than all but the largest firms are able to put in place, so my question is whether we should not all be moving to the cloud.

New thinking from young lawyers

At a session entitled The Rise of Expert Systems: Threat or Opportunity to Traditional Legal Services?, Michael Mills of Neota Logic and Tanina Rostain of Georgetown University Law Center talked about the Georgetown Iron Tech Lawyer competition. During the competition, law students, during the course of one semester, identify one particular regulatory issue to attack, and then, using Neota’s decision-tree software, develop a program that allows “ordinary people” to get answers to complex legal issues. The apps they develop are then “published” on the web.

In spring 2014, the award went to Unemployment Benefits Hearing Coach. As the name implies, the app provides guidance on how to prepare for a hearing and assists claimants and employers in understanding their rights. This is a very exciting development in light of Richard Susskind’s comment in The End of Lawyers? that there is a huge underserviced market of consumers with “ordinary” legal issues they must content with.

The crucial comment, for me, was from Michael, who noted that it was refreshing and invigorating to hear law students talking excitedly about issues relating to user interface and user experience.

Here were students who were keenly focused on the client experience. But as Mary Abraham recently asked rhetorically in Above and Beyond KM, “While every law firm claims to put its clients first, does it really?” Here, Michael was saying, was a new generation of aspiring lawyers who did put clients first. What happens as those lawyers mature in their various law firms?

What does the future hold?

While ILTA is very useful in getting a snapshot as to where we are right now, among the most invigorating sessions were the ones that looked in the crystal ball to try and predict the future. The Wednesday keynote speaker was Rohit Talwar, whose topic was Unleashing IT To Disrupt and Define and Differentiate Future Strategies. Rohit spoke as one of last year’s keynotes, and his role this year included bringing us up to date on ILTA’s Legal Technology Future Horizons study. The study itself is a fascinating view into current trends. (You can find a four-part, in-depth analysis of this study on the [UK] site Elephant Creative: here, here, here, and here.)

Attendees of his keynote session also received a handout that identifies the three horizons of change, namely Now, the Medium Term, and the Long Term, and predicts how various new technologies will play out in the legal segment over those three horizons.

On the last day I attended a session entitled What’s That? New and Cool Technologies. As the title implies, the panellist were looking at current (very leading edge) technologies, which gave us some insight into what we might be seeing in law firms in the next few years.

The most invigorating session, for me, however, was one on the last day entitled Do Robot Lawyers Dream of Billable Seconds? There was, however, so much “meat on the bone” from that session, that I propose to defer my discussion of the various issues addressed there to my next posting.

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My Twitter Digest for 10/14/2014

<CONTENT /> v.5 - Wed, 10/15/2014 - 14:30
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Android 5.0 Lollipop Has Arrived

slaw - Wed, 10/15/2014 - 12:01

Anyone who wants the latest and greatest tablet is in luck.

Google just announced the release of its new Android 5.0 Lollipop OS, and a new Nexus 9 tablet, Nexus 6 phone, and Nexus Player streaming media player. Lollipop will be available for existing Nexus 5, 7, and 10 devices “in the coming weeks.”

If you are an Apple fan, Apple is launching new iPads and other devices tomorrow.

I think I “need” a Nexus 9. My iPad 2 is getting a bit slow and tired, and it would be a better companion to my Nexus 5.

Categories: Teknoids Blogs

Coursera Expands Its MOOC Certificate Program

The Chronicle Wired Campus - Wed, 10/15/2014 - 10:01

Coursera, the online education company, announced on Wednesday that it was expanding a program that awards special certificates to students who pass multiple MOOCs.

The company unveiled the program, called Specializations, earlier this year. The idea was to create certificates that, while not supplanting traditional degrees, carry more weight than a certificate of completion from a single massive open online course.

The program, which requires learners to take Coursera’s fee-based “Signature Track” courses, apparently has been a success: The company is adding 18 new Specializations—mostly practical, in-demand fields like project management, cloud computing, and data mining. Students who complete the sequences can expect to pay $100 to $300, depending on the number of courses, according to a spokeswoman.

Colleges so far have succeeded in preventing free online courses from disrupting their tuition-based degree programs, but MOOC providers are still hopeful that they can create alternative credentials that have currency with workers and employers.

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New PLEI Resources From Manitoba Courts

slaw - Wed, 10/15/2014 - 08:14

Manitoba Courts has just recently posted a number of videos to assist self-represented litigants (SRLs) and other justice system participants on its website. The videos released to date include:

  • What to expect when attending court
  • The Manitoba Provincial Court
  • The Manitoba Court of Queen’s Bench
  • The Manitoba Court of Appeal
  • What to expect at jury selection
  • How to fill out a Petition or Petition for Divorce

Along with each video is posted a list of links to other relevant resources.

The site notes that the next phase in the video development will focus on videos that are more tutorial in nature (presumably along the lines of the Petition video).

This is a much needed new resource for Manitobans seeking access to justice, particularly those who don’t have the benefit of a lawyer’s assistance, and an excellent addition to the recently redesigned Manitoba Courts website.

 

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Early Birds And Night Owls Can Both Be Unethical

The Lawyerist - Wed, 10/15/2014 - 06:12

Even though we have known for ages that circadian rhythms vary wildly, we still equate getting up early with virtuous productivity and staying up late with a slacker/procrastinator mentality. And those of us who like to get our work done at midnight are probably just hard-wired to be that way. What we did not know, however, is that our circadian rhythms might be driving us towards unethical behavior if we are doing our decision-making at the wrong time.

RelatedQuiz: “What time are you most likely to behave unethically at work?”
Washington Post

A recent paper by researchers from Johns Hopkins, Georgetown, and Harvard sheds light on how, left to your own devices, you may become an amoral monster if you have to make an ethical choice during the wrong time of day. Basically, Christopher M. Barnes and his team set up a study in which lying resulted in more money for the text subject. First, they had people take a quiz to determine their chronotype — a fancy way of identifying which type you are: a morning person or a night person. Then they randomly assigned people to work on a task at seven in the morning or midnight without regard to whether they were a night owl or a lark. Then they waved some cash in front of their faces.

Participants undertook a die rolling task previously established as a test for unethical behavior. In this task, they anonymously rolled a die and reported the number back to us, and we paid paying them based on the number they reported (higher amounts for higher rolls).

Although we didn’t know what numbers participants actually rolled, we did know that everyone should report an average of 3.5. So any systematic differences across conditions (morning people in the morning vs. evening people in the morning, for example), would indicate cheating. Consistent with our prediction, an interesting and statistically significant pattern emerged. Larks in the night session reported getting higher rolls (M=4.55) than larks in the morning sessions (M=3.86), and owls in the morning session reported higher rolls (M=4.23) than owls in the night sessions (3.80).

(Aside: Did it not remotely occur to the people participating in this study that if they were getting rewarded with cash, something about the ethical implications of how you got that cash might be at stake?)

Setting aside the fact that there is something deeply sad about a person who would lie during a psychological research study, this has real-world implications for those of us in fields that are ostensibly grounded in ethical decision-making. While it is implausible to assume that a district court will let you start having motion practice hearings at 10 p.m., it is not absurd to suggest that firm managers would do well to accommodate employees in scheduling matters to maximize both productivity and ethical behavior.

The important organizational takeaway from these findings is that individuals may be more likely to act unethically when they are ‘mismatched’–that is, making a decision at the wrong time of day for their own chronotype,” Barnes, Gunia, and Sah write. “Managers should try to learn the chronotype (lark, owl, or in between) of their subordinates and make sure to respect it when deciding how to structure their work. Managers who ask a lark to make ethics-testing decisions at night, or an owl to make such decisions in the morning, run the risk of encouraging rather than discouraging unethical behavior.

If you have the good fortune to be in charge of your own calendar rather than at the whim of a manager, you could consider ensuring that you schedule things like settlement conferences at at a time when you are most able to be ethical and effective.

Also, in case you are one of those night owls that are tired of always having your reputation besmirched as a lazypants, the study had something to say about that as well.

These results “cast doubt on the stereotype that evening people are somehow dissolute,” the authors conclude – early risers are just as likely to cheat when taken out of their temporal comfort zone.

If you are a night person, perhaps the researchers would write you a note you can give to your employer so you can finally stop trying to be in the office before dawn.

Categories: Teknoids Blogs

The Cape Town Convention

slaw - Wed, 10/15/2014 - 06:00

In September the third conference on the Cape Town Convention took place at the Law Faculty in Oxford. This treaty deals with international interests in mobile equipment, and was adopted in late 2001. There are three protocols, dealing with aircraft and aircraft engines; rail and space. The details of dates and entry into force can be located on the Unidroit site. The CTC is one of the most successful commercial treaties, having been ratified by 60 countries already.

My interest in the Convention comes about from the project that is associated with it – the Cape Town Convention Academic Project. This project was established three years ago under the auspices of Unidroit , the International Institute for the Unification of Private Law, and the AWG, the Aviation Working Group, and is managed by the University of Washington School of Law and the University of Oxford Faculty of Law.

The leading academics involved in the project, Professor Jeffrey Wool and Professor Sir Roy Goode realised the importance of collecting the legislative, judicial, regulatory and other related material pertaining to the Convention as it was created. This would provide a useful and comprehensive repository for the practitioners and academics in this relatively recent field of transnational commercial law.

Interestingly for law librarians, there are several core principles which have been adopted from the outset to distinguish this collection. It provides materials freely for research and educational purposes, it updates the materials on an ongoing basis, it provides quality control over the materials selected, and it aims to be a comprehensive and searchable repository for those with an interest in the CTC. Additionally:

  1. there is very close involvement in the project of the experts involved in this field
  2. the Cape Town Convention Journal is provided free online
  3. translations are provided for some of the key documents
  4. there are self-instruction notes and teaching materials
  5. there is a bibliography of Law and Economics Research

From the website, here is an outline of the contents of the repository:

  • Operative legal texts – Containing current versions of the Convention, Protocols, and Regulations and Procedures for the International Registry
  • Developmental and legislative materials – Containing preparatory materials, acts and proceedings from the diplomatic conferences, and materials contemplated by such conferences, including the Official Commentaries by chapter
  • International registry materials – Containing current and developmental materials related to each international registry
  • National implementation materials – Containing national documents and legal materials relating to CTC ratification and implementation by contracting states, and summary notes describing the actions taken by such contracting states which link relevant documents
  • Annotations on Prof. Goode’s official commentaries – Containing the text of the Official Commentaries by chapter and annotations thereto
  • Reporting on judicial activity – Containing documents associated with judicial actions related to the CTC
  • Reporting on administrative activity – Containing documents associated with administrative actions related to the CTC
  • Scholarly articles – Containing scholarly articles and books on the CTC
  • Practitioners’ and professional materials – Containing materials intended for attorneys and other professionals working with the CTC
  • Economic assessment materials – Containing documents relating to the economic assessment of the CTC
  • CTC instructional materials – Containing descriptive and self-instructional materials on the CTC and supplemental modules integrating the CTC into established academic classes

For anyone with an interest in this field of transnational commercial law, this is a resource that will certainly be welcome and could be very useful. For colleagues who deal with Private International Law, this free resource is worth knowing about for your FCIL arsenal.

Ruth Bird

Categories: Teknoids Blogs

Wednesday: What’s Hot on CanLII

slaw - Wed, 10/15/2014 - 06:00

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. Law Society of Upper Canada v. Hamalengwa, 2014 ONLSTH 187

HAMALENGWA – Findings of Professional Misconduct – While representing a difficult client who was charged with first degree murder, the Lawyer was eligible to bill the Ministry of the Attorney General for fees and disbursements pursuant to a Fisher order – The Lawyer’s accounting, billing and docketing systems were deplorable and bore no relationship to his billings to the Ministry – The Lawyer engaged in professional misconduct by billing the Ministry for attendances at court when he had not attended or attended for less time than he claimed; overbilling for legal research; billing for services that were not properly billable as legal services; overbilling for student assistance disbursements he had not incurred; overbilling for fees and disbursements that were not fair and reasonable; and submitting a document to the Ministry purporting to be an invoice from a student working under his direction when the invoice was not prepared by the student and the services were not rendered as described in the document.

2. R. v. Oakes, [1986] 1 SCR 103, 1986 CanLII 46 (SCC)

Respondent was charged with unlawful possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act, but was convicted only of unlawful possession. After the trial judge made a finding that it was beyond a reasonable doubt that respondent was in possession of a narcotic, respondent brought a motion challenging the constitutional validity of s. 8 of the Narcotic Control Act. That section provides that if the Court finds the accused in possession of a narcotic, the accused is presumed to be in possession for the purpose of trafficking and that, absent the accused’s establishing the contrary, he must be convicted of trafficking. The Ontario Court of Appeal, on an appeal brought by the Crown, found that this provision constituted a “reverse onus” clause and held it to be unconstitutional because it violated the presumption of innocence now entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. The Crown appealed and a constitutional question was stated as to whether s. 8 of the Narcotic Control Act violated s. 11(d) of the Charter and was therefore of no force and effect. Inherent in this question, given a finding that s. 11(d) of the Charter had been violated, was the issue of whether or not s. 8 of the Narcotic Control Act was a reasonable limit prescribed by law and demonstrably justified in a free and democratic society for the purpose of s. 1 of the Charter.

3. Regina v. Shoga, 2014 ONSC 5773

[6] It is trite law that the Crown must prove every element of the offense charged. In order to secure a conviction for theft, it must be shown that “[t]he taking was intentional, under no mistake and with knowledge that the [merchandise] was the property of another”: Lafrance v The Queen, 1973 CanLII 35 (SCC), [1975] 2 SCR 201, at 214. Moreover, since section 334 of the Code specifies that the theft be of property worth over $5,000, the Crown must establish that the goods in issue exceed that value.

The most-consulted French-language decision was Renvoi: Droits linguistiques au Manitoba, [1985] 1 RCS 721, 1985 CanLII 33 (CSC)

148. i) L’article 133 de la Loi constitutionnelle de 1867 et l’art. 23 de la Loi de 1870 sur le Manitoba sont impératifs;

149. ii) Toutes les lois de la législature du Manitoba qui n’ont pas été imprimées et publiées en anglais et en français sont invalides et inopérantes et l’ont toujours été;

150. iii) Les lois de la législature du Manitoba qui seraient actuellement en vigueur, n’était‑ce du vice dont elles sont entachées sur le plan constitutionnel (c.‑à‑d. les lois actuelles), sont réputées temporairement valides et opérantes à compter de la date du présent jugement jusqu’à l’expiration du délai minimum requis pour les traduire, les adopter de nouveau, les imprimer et les publier;

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

Categories: Teknoids Blogs

Listening to Clients

3 Geeks and a Law Blog - Tue, 10/14/2014 - 17:00
Last week I was able to attend the Bridgeway Customer Connective Conference in Nashville. Unlike many of the conferences I attend, this one is directed at clients, not law firms.

One of the sessions I attended really got my attention. Pratik Patel and Peter Eilhauer of  Elevate presented on a Practical Data-Driven Roadmap for Spend Management. This was primarily a case study on how one client approached cost control for their outside counsel. Pratik gave an excellent presentation on how the client took a methodical approach to understanding its legal spend by analyzing how and where it had been spending its budget. Then they took a step-by-step approach to tackling the problem.

One component of the analysis was understanding the rates the client was paying on a practice-by-practice basis. Normally I find this type of analysis marginally useful, since rates are only one component of cost control. However, the practice breakdown was interesting, since it separated out different specialities. This meant tax lawyers were not being lumped in with labor lawyers.

With this breakdown the client was able to determine market rates by timekeeper level for each type of service. For their needs, it didn't matter whether these were market rates on the broader level or not. Then they identified firms with rates above these client-based market rates.

And here's where it got interesting. Pratik asked the audience how many firms pushed back on the client when they asked the firms about the discrepancy. He prefaced this by saying the client expected that number to be 50%. People gave various guesses, including mine which was "low."

The number was 5%.

Pratik singled me out - since I was the only law firm person in the room and asked me why firms didn't push back. I replied it was firms' superior negotiation tactics in action - which got a good laugh. Then on a more serious note, someone else commented that he viewed it as an admission by the firms that they had been over-charging the client.

Ouch.

The Lessons:
  1. Pratik made a point early on that the client did not want to push too hard on their firms. They want their law firm partners to be financially healthy. In fact the other presentations I saw at the conference echoed that sentiment. Although clients are wary of their firms, they don't want to be mean about it.
  2. And when firms react as if they have been charging high rates, they can be sending a bad message. If they act like they have been treating the relationship poorly, then they shouldn't be surprised when clients view it that way.
  3. Lastly - law firms need to grow a pair. They employ very talented people. Instead of always bending over, they should have some confidence in defending their prices. Failing to do so means they will undersell the value of their services.
The legal market needs to mature around these ideas. This chaotic, wild west situation is resulting in many unintended consequences. As usual, I continue to recommend that lawyers take a more proactive approach to dealing with all of this change. To shy away from this, only leads to confusion and unhealthy relationships.


Categories: Teknoids Blogs

Of Adobe Digital Editions Version 4 Privacy Snafu and Why Lawyers Would Care

slaw - Tue, 10/14/2014 - 14:50

It seems Adobe Digital Editions (ADE) version 4.0 could be more than it appears. If you thought it was just an innocuous little digital rights management tool for balancing intellectual property interests with your modest entitlement to enjoy downloaded ebooks from public libraries and vendors in rustic peace and seclusion, you might think again. Last week news started to spread that Adobe Digital Editions version 4.0—released about a month earlier in September— was actually an overactive and prolific snitch, reporting back to Adobe on a daily basis about every ebook title you downloaded, every ereader device you used, every page you skipped to, and even at what time, location and in what order.

Basically, it appears to be not just a DRM tool, but a very curious little spy… or perhaps more accurately a gossipy tattle tale, because spies generally care much more about who receives the information they traffic. Through its utter lack of encryption ADE 4.0 appears to care very little about eavesdroppers. It also appears to be collecting information not just on DRM titles (like those copy-limited public library EPUBs you must wait to digitally borrow), but on DRM-free titles—and you might rightly question Adobe’s legitimate interest.

We at Courthouse Libraries BC, along with many other library organizations, tried to get ahead of the story for the sake of a handful of our clients who may have used ADE in connection with an advanced function available in some titles. Our post went up on Friday, and many, many libraries have done the same.

We shared a list of sources for these concerns that includes Nate Hoffelder’s, commentator at www.the-digital-reader.com, initial post raising the flag:

Other sources include:

We are advising anyone (and I think lawyers and judges would like to know about this), to not upgrade to ADE version 4.0, and if you have to uninstall it and use the older versions of ADE 3.0 or earlier (if they even work at all).

A current post from www.digitalbookworld.com provides good current news on this fiasco, including Adobe’s promise to offer a new release by October 20, 2014 addressing the privacy and encryption problems. Adobe has not addressed the other issues, however, which include how gathering and reporting this much detailed information reconciles with any legitimate purpose.

Great, so why do you care?

I’m not saying many lawyers use EPUBs to store their work product, but some do. If you want a format that is easy to handle on an iPad, EPUB is great. Convert a transcript from an XFD, a trial book, notes about a witness, etc. to an EPUB format so that you can search quickly through a long document, change font setting for easy reading, etc. I can very well imagine that some lawyer has done this already. In fact, Scrivener has a pretty useful looking case study about a lawyer doing this pretty much exactly.

We should all be asking what business Adobe has in knowing about our self-published titles, especially when these could identify our clients. We might take safe measures to encrypt our storage and password protect our devices, and we don’t want Adobe to allow a breach to happen at all, let alone on purpose.

I recommend reading the EFF’s take on this whole problem, and I will paraphrase one of their concerns in an example that should resonate with lawyers : Borrowing a copy of Catcher and the Rye from your public library shouldn’t be a license to scan your trial briefs.

The company insists the information is collected “solely for purposes such as license validation and to facilitate the implementation of different licensing models by publishers,” but this has not assuaged EFF or the ALA. It should not appease lawyers who recognize the inherent dissonance between narrowing concepts like “solely” being blown open by terms like “purposes such as” and total vagueness like “facilitate the implementation of different licensing models by publishers.” What if a publisher’s licensing model involves selling competitive intelligence to interests that are in litigation against your client’s?

As I’m about to post, I just checked and saw that Hoffelder has posted again regarding ADE 4.0—with unslaked skepticism too:

“… on the plus side, at least Adobe is now promising to encrypt their spying. They’re not promising to stop it but at least now no one will be able to listen in.

That [means] that we won’t have to worry – not until the next time that Adobe is hacked and user data is leaked to the web. 38 million users were affected the last time this happened,including ebook users.

I feel real safe with Adobe’s plan to use encryption, don’t you?”

Hmmm. Nope.

Categories: Teknoids Blogs

My Twitter Digest for 10/13/2014

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Categories: Teknoids Blogs