Everyone knows the hoary old Paper Chase quote that law professors used to always trot out, right? “Look to your left, look to your right, because one of you won’t be here by the end of the year.” I do not think law schools see one third of their students dropping or flunking out any longer (if they ever did), but the one-in-three statistic is apparently spot on for something else lawyer-related: the percentage of lawyers who have serious problems with alcohol. A big new study of nearly 13,000 attorneys (the largest ever for this sort of thing) co-funded by the ABA and Hazelden, found
36 percent of respondents had results consistent with hazardous drinking or possible alcohol abuse or dependence. That compares to 15 percent of physicians, a group whose substance use has been studied far more extensively, the study says.
Certainly attorneys live in a high-stress high-workload culture, and one that often makes it difficult to ask for help. The same can be said, however, of doctors, which makes that comparison useful and apt.
Some other highlights from the study:
The full study is here.
Featured image: “Businessman’s hand pouring vodka into a glass” from Shutterstock.`
New Study Confirms One Third of Lawyers Have a Problem with Alcohol was originally published on Lawyerist.com.
Last week my Facebook feed lit up after the article by Eric Girard, “What I learned at law school: The poor need not apply”, was published in the Globe. Mr. Girard, a 3rd year student at the University of Ottawa, Faculty of Law, was on the verge of leaving school due to his financial circumstances until a friend stepped in and, at the last minute, offered to co-sign a loan. Mr. Girard’s story ends well but it highlights some significant problems with legal education in Canada. The high cost of a legal education puts it out of reach from some students, regardless of merit. In addition, the article alludes to access to justice issues and it got me thinking about the future of the profession.
Back in 2005, when I was a law school student at Queen’s, we paid approximately $8,700 in tuition and fees (if memory serves). We actually benefited from a tuition freeze put in place by the Ontario Liberals in 2003 who, at that time, reacted to calls that tuition levels were too high. Since then, tuition and fees has risen to $18,693 CAD. I don’t need a handy website to tell me that the costs have more than doubled in 10 years (has it been 10 years?!) but marshu.com tells that it is an increase of 114%. I will let the economists and finance people weigh in on how that should be adjusted for inflation and other “market forces“. (Since when did Newtonian physics enter the market?) I’m also not going to get into the levels of financial support provided by law schools. Many, if not most, of us received non-repayable bursaries and/or scholarships back in 2005. In my mind, a 114% increase is simply staggering. Nuff said.
The consequences of staggeringly high tuition is what really troubles me. High tuition is a barrier to access thus limiting the diversity within the schools and, in turn, the profession as a whole. Mr. Girard found a way to be sufficiently indebted to get himself to the finish line. I can only imagine his elation when, 8 or 10 years down the road perhaps, he is able to pay off his student loans. He does not mention his level of debt but simple calculations from law school websites put the average cost of 3 years of tuition and fees (not including rent or other necessities) at between $55,000 CAD to $100,000 CAD. MacLean’s compared law school tuition across the country and U of T is by far, of course, the most expensive. When cost of living is included, debt levels could easily jump to $90,000 CAD or $180,000 CAD. The point here, which was made very well by Mr. Girard, is that the astronomical costs of 3 years of law school means incurring huge loans and students who do not have access to those loans may not graduate.
I also see bigger issues that may have effects across the profession. I see newly-minted lawyers with a mountain of student loans facing a shortage of articling positions. If they can’t get into the market, how will they pay off the debt? I see new lawyers contemplating how to pay back their $150,000 in student loans in a market where law firms are “offering” unpaid articling positions, or positions that only cover the student’s transit pass. I can only imagine the current levels of stress during OCIs.
I feel privileged to be part of this profession. I feel privileged that I graduated during a time when law school tuition was more affordable. (Thank you JET programme et al.) And I think we should feel privileged to have the financial means to pay for law school or the access to loans to get us through. It’s important to acknowledge that we are a profession of the privileged and, in many cases, for the privileged.
Today I’ve covered part of this discussion and I applaud Mr. Girard for sharing his story. It takes courage to expose one’s financial troubles. Mr. Girard highlights a problem that has been looming large for years. I am reminded of many meetings at the OBA when I was a member of the Executive back in 2007. Then-President Jamie Trimble (now Justice Trimble) deserves much of the credit for keeping us focused. (Actually, I could use some of Jamie’s focus for this post.) We produced a +100 page glossy book with proposals, charts and graphs on legal education in Ontario. And the issues still linger. In fact, they seem to be worse.
To date, my DIY A2J posts have talked about ways that lawyers can improve access to justice in family law matters by disseminating information about family law and dispute resolution processes on a voluntary, pro bono basis. Pro bono work is all well and good, and arguably a moral imperative of those practising a generally privileged profession, but at the end of the day you have a responsibility to yourself and to your family to put food on the table and keep the lights on.
It seems to me, and apparently to the Canadian Bar Association‘s Futures Committee as well, that there are other profitable ways of running a law practice that don’t rely on the billable hour. Best of all, a number of these alternatives can actually increase access to justice while meeting lawyers’ need to get paid; the idea of practice models that are remunerative and promote access to family justice is a theme I will be returning to in the months ahead.
What’s wrong with the comprehensive service billable hour
There are, in my view, a number of problems with the comprehensive service billable hour model of practise. First of all, few clients are able to pay for start-to-finish legal services. Pretty much every report on self-represented litigants, from the work of the Canadian Research Institute for Law and the Family to the Action Committee on Access to Justice in Civil and Family Matters to the CBA’s Envisioning Equal Justice Initiative to the National Self-represented Litigants Project, agrees that the cost of legal representation is the number one barrier to accessible justice. Professor Julie Macfarlane, in her report Identifying and Meeting the Needs of Self-represented Litigants (PDF), found that 53% of the litigants she spoke to had retained the services of counsel at one point during their case and that in three-quarters of these cases, the lawyer had been privately-retained but her participants had “exhausted their available resources” and could not afford to continue with counsel.
Of course, it’s not just the poor who have this problem. A report (PDF) from the University of Toronto’s Faculty of Law that looked at access to justice for middle income earners said that “a fee structure based on an hourly billing model is unaffordable to most;” indeed it is, and let’s not forget that we’re talking about the middle class here.
According to Canadian Lawyer‘s 2014 fee survey (PDF), contested divorces in Canada cost $10,406 on average and $39,522 at most, and a five-day trial runs about $26,591 on average and $59,700 at most — and don’t forget the costs that are borne in the process leading up to trial, which often equal or exceed the cost of the trial itself. According to Statistics Canada, the average annual after-tax income of male-headed single-parent families was $55,100 in 2011, and the average income of female-headed families was $43,300; according to Professor Macfarlane’s report, 57% of the litigants she spoke to had annual incomes of less than $50,000.
Second, let’s look at things from the client’s point of view. You walk into the family law lawyer’s office. The lawyer can’t tell you how long it will take to resolve your case, the steps and applications that will be required to wrap things up or what sort of disbursements will be necessary, what the end result will be, or what the total cost will amount to; all your lawyer can tell you for certain is his or her hourly rate, and that isn’t guaranteed to remain the same throughout the carriage of your file. Then the lawyer asks you for a significant chunk of change, usually not less than $5,000 and often well north of that, to get started on the project.
(Speaking of lawyer’s hourly rates, Canadian Lawyer also reports that the average rate for a 2009 call was $267 per hour and the rate for a 2004 call was $322. The magazine found that 44% of lawyers responding to its survey planned on increasing their hourly rate within the year, with 45% of those people planning on a hike of 5 to 10% — well above the national inflation rate, which increased from 1.0 to 2.3% between January and May this year according to the Bank of Canada.)
Honestly, I can’t imagine a business model less appealing from a consumer’s point of view. Professor Macfarlane, writing about litigants who could no longer afford to retain counsel, observed that “it was not unusual for them to still owe money to their lawyers and to be paying this back in instalments” and that such litigants were “often resentful that, despite significant expenditures, they were still not at the end of their matter.”
Third, the billable hour model does nothing to encourage haste toward resolution — not that haste is always a good thing, in many circumstances it is not. However, a file can but put down while other matters are attended to, and when it gets picked back up a month or two later the same number of issues, steps and processes still remain to be finished. Delay does nothing to lessen the overall value of a file; to the contrary, I suspect it rather increases it.
The billable hour could easily be perceived as encouraging a laggardly approach, inclined toward resolution by litigation, to one’s files. (I am sure that few if any family law lawyers could reasonably be accused of milking their files; that said, the main money-makers for litigators are chambers applications and trials. Nothing pays as well as those five-day trial Canadian Lawyer wrote about, or the ten- and twenty-day trials it didn’t.) This perception is often reinforced when clients are billed for time spent reading letters and emails, never mind replying to them. This is legitimate work, but the total amount charged gets out of hand very quickly when the minimum increment of the billable hour is six minutes and associate lawyers are mindful of their employers’ billing expectations.
Fourth, the billable hour model values time spent over progress achieved. That’s fine, I suppose, but over time the ratio of time to results can get seriously bent out of whack. This is especially likely in high conflict files, where the number of letters, affidavits and applications to address a problem are so grossly disproportionate to the importance of the result. As a result, the analysis of time spent versus results obtained is usually our Achilles’ heel at hearings to assess our accounts.
There are a number of different ways that we can retool our practices to reduce our reliance on the billable hour while still making a living. I’ll be talking about more of these in the future, but in this post I’ll discuss unbundling, also known as the limited-scope retainer.
The unbundled alternative
In “Unbundling” of Legal Services and Limited Legal Representation (PDF), the Law Society of Upper Canada defined unbundling thusly:
Unbundling of legal services refers to the provision of limited legal services or limited legal representation. It is the concept of taking a legal matter apart into discrete tasks and having a lawyer or paralegal provide limited legal services or limited legal representation, that is, legal services for part, but not all, of a client’s legal matter by agreement with the client. Otherwise, the client is self-represented.
In other words, unbundling takes the bundle of tasks involved in the normal start-to-finish carriage of a file and breaks it down to an à la carte menu of offerings from which the client can pick and choose according to his or her needs and budget. In family law matters, the menu typically includes:
The services I offered on an unbundled basis typically involved advice, agreements and divorces. I usually managed agreements and divorces on a flat rate. Initial advice, independent legal advice and on-going advice I billed on a pay-as-you-go basis, letting the client take as much or as little of my time as he or she wished.
I found that I often liked this sort of work a great deal more than many of my full-service files. These sorts of limited-scope files are in and out of your office quickly and never run the risk of becoming dog files; the work is usually easily accomplished and enjoyable; and, accepting further work is always discretionary. Flat rate work was paid up front, along with taxes and foreseeable disbursements, and most hourly rate work was done in the presence of the client and was billed and paid at the end of each meeting, reducing overdue accounts receivable and collection problems.
On occasion, I would represent a client for the purpose of a specific application, as I would for some pro bono files. This sort of service was a bit trickier to provide as it involved getting on the record (and getting off) and a fair amount of communication with opposing counsel or an opposing party. In such cases, I found that it was critical to be crystal clear with everyone involved — the client, the opposing party or lawyer and the court — about the nature and extent of my involvement in the file. It also helped to get the client to sign a Notice of Intention to Act in Person ahead of time. (This is a form used in British Columbia that takes counsel off the record and provides the client’s new address for service.)
Unbundled work has always struck me as a sensible way of earning an income. It’s good for the client, who gets what he or she is looking for within a determinable amount of time at a fixed or predictable price and is directly responsible for the management of his or her case. It was good for me, as the work was always remunerative and carried very little risk of massive receivables accumulating, and was a welcome change of pace from my comprehensive service files. Although the duration and value of each retainer is inherently finite, I rarely found that I was lacking opportunities for further limited-scope work. (A limited scope retainer was often something that I proposed during initial consultations when it became clear that the client did need the help of a lawyer but couldn’t afford a great deal of it. Other work came from referrals.)
The curious unpopularity of unbundled work
Given my positive experience with working on an unbundled basis, I have never fully understood why unbundled work isn’t more popular with lawyers; it’s certainly popular with clients. In her report on the needs of litigants without counsel, Professor Macfarlane wrote that:
… many [self-represented litigants] sought some type of “unbundled” legal services from legal counsel; for example, assistance with document review, writing a letter, or appearing in court. Relatively few were successful in accessing legal services on this basis despite a sustained effort. This was perplexing to many respondents, who could not afford to pay a traditional retainer and envisaged that they could undertake some parts of the necessary work themselves, with assistance.
The experiences of Professors Macfarlane’s participants are echoed in the literature. In a 2012 survey of Alberta family law lawyers (PDF), the Canadian Research Institute for Law and the Family found that 40% of its respondents never offer unbundled services, and that those who do work on such a basis did so in an average of only 12% of their cases.
This really needs to change.
First, Professor Macfarlane’s report makes it clear that people want to hire counsel on an unbundled basis. Second, unbundled services work and improve access to justice. According to a report on brief legal services (PDF) prepared by the Canadian Research Institute for Law and the Family,
Unbundled legal services have been used successfully in the United States since the 1990s, and many US states have modified their rules of court and lawyer codes of conduct to accommodate limited scope retainers and provided lawyers with guidelines and training on the effective provision of limited-scope retainers. One of the major advantages of unbundled legal services is to provide at least some legal services for those who simply cannot afford full representation by a lawyer and do not meet eligibility guidelines for legal aid coverage.
Third, unbundled services can work for you. In recent report (PDF) of the Alberta branch of the Canadian Bar Association on limited scope retainers, Marie Gordon QC wrote that unbundling represents “an effective niche marketing tool” to grow one’s practice in a way that is much less stressful, allows lawyers to thrive who are averse to court and enables a part-time practice. Fourth, as Ms Gordon also wrote, the early concerns that unbundling might herald a decline in lawyers’ standards of practice have proven to be unfounded:
As with the introduction of collaborative family law, fears and suspicions about a reduction in ethical standards were inevitable in the beginning, but unfounded in the end. I am actually hopeful that [limited scope retainers] may meet some of the interests of clients, lawyers, and the Bench. Probably the most important point to make is that [limited scope retainers] do not import a lower standard of competence or professional conduct than the full scope retainer.
The limited-scope retainer agreement
Before undertaking a limited scope retainer the lawyer must advise the client about the nature, extent and scope of the services that the lawyer can provide and must confirm in writing to the client as soon as practicable what services will be provided.
In my view, you will be best protected by not only advising the client about what you’ve agreed to do, but by describing your services and their limitations in a proper written retainer agreement which you and the client will sign. In my view, a good limited-scope retainer agreement will do the following, in addition to covering all of the usual subject matter:
If you decide to try taking some work on an unbundled basis, which I heartily recommend, here are some tips and suggestions.
1. Be thorough in your initial interview. You and the client must be clearly on the same page with respect to the work you are going to do, that which you are not and that which is the responsibility of the client. You must be satisfied that you understand the client’s circumstances, the status of any litigation or negotiations occurring to date and that the work you are proposing to do will assist the client and advance his or her case.
2. Ensure that the client has realistic expectations as to the impact of your work on the resolution of his or her case and that you are not guaranteeing any particular outcome.
3. If you will be communicating with opposing counsel or an opposing party, state the limits of your representation and the issues which should be addressed directly with the client; if at all possible, try to avoid a situation where some communication should go to you and others to the client. Above all, be sure to advise when your work for the client has ceased.
4. If you will be going on the record, consider having the client sign a Notice of Intention to Act in Person, or whatever other form may be necessary to release you as counsel of record and the client’s address for service, at your first meeting.
5. Avoid a yo-yo approach to representation in which you are repeatedly popping on and off the record. This will confuse all involved and undermine the efficacy of your services, and I suggest that you politely decline to act in such circumstances.
6. Be prepared to handle increased administration requirements. Unbundled work is piece work, and if you seriously pursue this sort of work you won’t be dealing with 25 active files each month but 50, and this means more conflicts checks, more files to open and more accounts to render. Be sure your support systems can handle the extra work.
It also occurs to me that any written materials prepared on behalf of the client should echo his or her style of speech and vocabulary to the extent possible. In other words, the client shouldn’t sound like a lawyer.
I’ve talked a lot about flat rate work in this post. I will expand on that subject, and propose a means of calculating remunerative yet reasonable flat rates, in a future post.
There are those people that will tell you that any tattoo for a lawyer is ill-advised, as it does not fit the nobility of our profession. I am more in the “as long as it is covered at work” camp of tattoo thought vis-à-vis attorneys. But what if, for some inexplicable reason, you decided to get a tattoo that reflects your love of the law? Should you flaunt it?
There are scores of scales of justice and Lady Justice tattoos, but those are far too common for our purposes. We are talking about those law- and lawyer-related tattoos that are embarrassingly on point, be they too sincere or too ridiculous. Tattoos like the ones that follow.
Originally published 2015-01-30.
A couple years ago Slaw columnists Kari D. Boyle and Ian Mackenzie collaborated on a pair of excellent articles on Med-Arb – Kerri from the mediator perspective and Ian from the adjudication perspective.
These articles insightfully highlight many of the legal, ethical and practical issues surrounding the idea of having a single person act as both mediator and arbitrator – issues that continue to be hotly debated among mediators and arbitrators.
Med-arb has become widely accepted in labour, family and other areas. The main reason is efficiency.
There are many different models of med-arb. All of them rest on the foundation of express informed consent of the parties to engage in both mediation and arbitration. In most cases, there is a pre-existing agreement to arbitrate –either in a contract or under some other adjudication process. The decision to mediate usually comes later, after the dispute has arisen.
There is nothing unusual in a decision to try to mediate a solution, then arbitrate any issues that remain unresolved. It is the idea that a single neutral can do both that raises the unique risks and opportunities of med-arb.
In January, I had the pleasure of moderating a panel discussion on med-arb for the ADR Institute of Ontario’s business and commercial section. Panel members David McCutcheon and Stephen Morrison focussed on some of the practical challenges neutrals and counsel face when adopting this model for resolving commercial disputes, in particular. (The ADRIO panel built on a med-arb session at the ADR Institute of Canada annual conference in Calgary which generated a lively discussion on the benefits and risks. Recordings of both panels are available from the ADR Institute.)
Many people who question the benefits of med-arb say you should look for the best mediator and the best arbitrator for each specific case. It’s difficult or impossible to find someone who will excel in both roles, they say. Why compromise one or both processes?
Because it works in practice, advocates say.
Everyone can save time and money if the same person acts as mediator and arbitrator. No need to get two people up to speed on the issues.
Putting the arbitration on hold for a short time and actively engaging with the parties to facilitate a settlement is often successful. The parties may resolve all the issues, or may narrow the scope of the arbitration to one or two issues that can be decided relatively quickly.
But even the strongest advocates acknowledge that there are real concerns about confidentiality and impartiality.
Can the mediator be effective if he or she cannot meet privately with the parties and receive information regarding the dispute and settlement option in confidence?
Can the arbitrator be truly impartial and make a decision based on the evidence, if he or she does meet with parties privately and has information from one that the other doesn’t know about?
One question that keeps coming up is whether a mediator/arbitrator who learns something during the mediation that hurts one party or another can set that information aside during the arbitration and render a fair decision, based only on the evidence. Will that information inevitably influence the decision? (See: Keeping a Secret from Yourself? Confidentiality When the Same Neutral Serves Both as Mediator and as Arbitrator in the Same Case)
But arbitrators do that all the time. So do judges. They hear arguments about admissibility of evidence and, if they decide it’s not admissible (or relevant), they set that evidence aside.
As an arbitrator, I have had situations where I have had to rule on whether certain documents should be produced. I have had to decide whether evidence was admissible and what evidence was relevant to the issues in dispute.
I feel that I was able set aside inadmissible or irrelevant information. But maybe I’m just deluding myself: some argue that this is an impossible task and that judges and arbitrators alike are always influenced to some extent. We must always be conscious of this risk of subconscious bias – my point is that it exists in every form of adjudication, not just med-arb.
Parties will often try to influence the neutral during mediation, with information that may not be relevant to the matter in dispute, but tends to paint their opponent as dishonest or unreliable.
One can’t refuse to hear this kind of information as a mediator. All one can really do is ask: “Why are you telling me this? How is this relevant?”
One suggestion, made by Stephen Morrison at the ADRIO meeting, is that the neutral explain to the parties up front that there is a difference between “information” and “evidence”. Everything the neutral hears at the mediation phase is information; it isn’t evidence. Some of it may become evidence later, if the dispute goes to arbitration. Much of it will not.
Again, this is no different from any other arbitration. In many cases, there will be a pre-hearing conference with the parties and their counsel, to lay out the issues in dispute and make decisions about procedure and scheduling. In my experience, each party will make very broad claims about their case, position themself as the “good guy” and paint a negative picture of the other side. This is just a normal part of arbitration advocacy.
The same will happen during opening statements at the hearing. These statements may or may not be supported by the actual evidence.
One would hope that this same kind of advocacy, attacking the credibility or integrity of the other side, doesn’t happen at mediation, where the focus should be on settlement. But it does.
One of the real practical limitations of med-arb, I think, is that the parties always look at the neutral as a decision maker, rather than as a facilitator. This may limit their candour about potential settlement options.
Everything a party or counsel says at the mediation phase, is screened through a filter that asks: “How will this affect the decision, if this goes to arbitration?”
Parties are less willing to concede any factual or legal weakness in their position and, as a result, may be less willing to make the concessions needed for settlement.
Take for example, a commercial dispute where the claim is $1 million in damages. The claimant may be reluctant to talk about settling for half that amount for fear that the arbitrator will take it as an admission that the claim is worth only that much and will reduce the ultimate award. The respondent may be afraid to offer any money at all for fear that it will be taken as an admission of some liability.
The neutral must make every effort to reassure the parties that this is not the case. The parties must be free to discuss a wide range of settlement options, knowing that none of them will affect the ultimate decision if the matter goes to arbitration.
I had a med-arb case several years ago that illustrates how this can work. I was appointed arbitrator in a contract billing dispute. The parties had decided up front that they wanted it to be a med-arb and I agreed to do that. The arbitration claim turned on the interpretation of a particular clause in the contract. As it turned out, the mediation completely ignored the troublesome clause, and focused on several options to extend the contract in a way that would increase the value for both sides. The potential gains were seen to be more than the amount in dispute and both sides were willing to give up some of those gains to make the dispute go away.
So, virtually nothing discussed during the mediation session had any bearing on the issues in dispute in the arbitration. Both sides understood, I think, that if they didn’t settle, there would be a win-lose decision on the contract interpretation.
Neither side ever asked me what I thought of the contract clause in issue. If they had, I would have said I had no view on it one way or the other, but both sides should be aware that their interpretation might be wrong. That risk – plus the additional cost of arbitration – should be some incentive to settle. And it was.
That brings us to another practical aspect of med-arb. In commercial mediation, the parties often expect the neutral to offer an evaluation of the merits of their case. That is something the med-arb neutral cannot do.
The neutral can “kick the tires” to test the issues in dispute. Gently in some cases; more vigorously in others. But the neutral must make it clear that he or she is doing this with both sides. Otherwise, one party may conclude that the neutral is leaning in favour of the other.
At the ADRIO meeting, it was suggested that some of the risks of med-arb might be reduced or eliminated if the mediation proceeded without any separate meetings with the parties. (This is a model taught by Robert Mnookin and Gary Friedman at the Harvard Program on Negotiation and there are many advocates who say this should be the default for all mediations, not just med-arb).
I think that this is something that parties should seriously consider. It certainly changes the dynamic of the mediation phase, but it may help protect the integrity of the arbitration phase. There are always trade-offs.
The take-away from the recent ADR Institute sessions and from other discussions on med-arb is that it is a very useful, practical approach to resolving all kinds of disputes, as long as everyone involved is aware of the potential pitfalls and takes proactive steps to avoid them.
Vendor Quiz is a periodic feature here at Slaw in which we ask a legal marketplace supplier a series of substantive questions about their product or service. Our goal is to provide insight and guidance to Slaw readers who might be considering a purchase, and who would benefit from practical information with which they can make a more informed choice. Vendor Quiz is an advertorial service, with each post sponsored by the featured vendor.
Loom Analytics is basically ‘moneyball’ for the legal industry. It provides legal analytics at your fingertips to help you identify historical trends in legal data.
Currently, lawyers need to rely heavily on reasoning from analogy and anecdotal data when making decisions on case strategy. Loom Analytics is a web-based legal analytics tool that supplements traditional methods by highlighting meaningful patterns in large amounts of legal data.
Our goal is to complement currently available legal research tools and intuitive decision-making with hard numbers and graphs.
At the present time, the Hearing Outcome report is the most useful resource for lawyers deciding whether or not to take on a case. If you are plaintiff counsel, you can tailor your report to reflect your potential client’s circumstances, and run a Win/Loss comparison to see case precedents. You can also drill down further to see the same metrics depending on whether you are going to trial or at any other step in the litigation process.
Conversely, if you are defence counsel, you can use this report to help you make an informed decision about whether you want to settle or take a case all the way to trial.
Here’s an example of a graph you could run using our ‘Hearing Outcome Report’:
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To give you a broad picture of the decision landscape matching your case, use the Decision Search Report in conjunction with the Hearing Outcome report. The ‘Decision Search Report’, lets you see the total number of summary judgements in comparable cases. Combining the results of the Hearing Outcome Report and the Decision Search Report will give users an accurate representation of historical trends.
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Many lawyers are tired of hearing about legalese, and many still haven’t embraced plain language in their own legal writing and speaking. This post won’t try to change their minds. If Bryan Garner’s life work can’t convince lawyers, how can I?
But there is another issue often lost in the plain-language wars: where did all these legalese words come from? The perception on both sides seems to be these words and phrases once served a purpose, but don’t anymore. But what if we discovered that they never served any purpose?Legalese as Reminiscence
When I recently conducted a Twitter poll on most-disliked legalese words, I was struck by this fact: 25% of the participants said they loved legalese.
If I could get rid of one word, it would be…
— Brendan M. Kenny (@KennyBrendan) January 15, 2016
Let that sink in. 25% of lawyers active enough on social media to vote in a Twitter poll are not on the plain-language bandwagon—and they don’t want to be. I have a theory.The Majesty of the Law
No doubt about it, some things in the law should sound solemn and ancient, because as Lord Hewart noted, “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
For example, most lawyers wouldn’t change the opening of every Supreme Court session:
The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.
But when the court goes all-out old-fashioned, we often get this (ending at 6:42):
One can only imagine what they jury thinks after hearing that recital.
And when lawyers try to tell a story using legalese, it’s as though they are trying to tell Star Wars like this:
Lawyers are smart people, so our persistence in alienating our audience had puzzled me. Then I had this exchange with an old friend (not a lawyer) about a plain language post I wrote.
Chris might be on to something. Lawyers persist in using clumsy language even when it makes us less persuasive to our intended audience. Maybe that is because we believe or fear that words mean things when they really don’t. This may be a superstition, but it is a superstition that all the arguments in the world in favor of plain language will not overcome.
In the last century, lawyers have recognized that constantly using Latin words and phrases when English ones serve just fine made legal writing and speaking unnecessarily stuffy and ambiguous.
Of course, there are some terms of art that don’t have ordinary English equivalents, such as res ipsa loquitor, prima facie, and alibi.1 Other words with ordinary English equivalents are nevertheless so standard as to be unabjectionable, such as bona fide, amicus curiae, and versus.2 Few seek to remove this type of Latin from the law.
Today, most lawyers will recognize that writing or saying in praesenti (“in the present”), contradicto in adjecto (“contradiction in terms”), or ex abundenti cautela (“out of abundant caution”) is to present “pompous, turgid deadwood.”3
Perhaps many lawyers today resist cutting out non-Latin legalese because they view it with the same respect that 19th-century lawyers viewed Latin. Let’s see if that respect is warranted.Grammatical Grotesquerie “Wherever lawyers stand on legalese, they should, at least, stand on reason.”
This is a term Bryan Garner uses to describe legalese that no one intended to make a thing. He notes that when he was a young lawyer in Texas, the traditional denial in a defendant’s answer went like this:
“Defendant generally denies each and every, all and singular, the allegations contained in the plaintiff’s original petition.”
—Bryan Garner, Garner on Language and Writing: Selected Essays and Speeches of Bryan A. Garner 319 (American Bar Association) (2009)
He surmised that the justification for “all and singular” was likely in the same vein as Chief Justice John Fortescue’s famous statement: “We have several set forms which are held as law, and so held and used for good reason, though we cannot at present remember that reason.” After doing some digging, the first use of “all and singular” he found was in a 1847 Texas Supreme Court rule, and he notes:
The anonymous drafter of that rule, perhaps a justice of the Supreme Court, perpetrated a synactic blunder that would be repeated (with minor variations) in Texas pleadings for more than a century and a half.
—Id., p. 319
It’s bad enough that lawyers use antiquated phrases that have little or no meaning. It’s worse when we don’t even use the same antiquated language. For instance, I found four different versions of the sadly common “Further your affiant” language at the end of an affidavit used in Minnesota:
We should note three things about “Further affiant…”
Here’s a challenge: Find oddest phrase that lawyers routinely use in your state and investigate its origins. Cut it from your writing if you discover that it is unnecessary and encourage other lawyers to do the same.The Whys of Whereas
“Whereas” is one of those words that pops up on all sorts of contexts. In my experience, many lawyers think the word needs to be in anything signed by the court.
When I was working in the California Attorney General’s Office, I needed to draft a routine stipulation for the court to sign. Like the Bryan Garner fan I was, I wrote it in plain English and sent it to opposing counsel, who worked for a top-25 law firm. Opposing counsel responded by redrafting the stipulation as a whereas-ridden monstrosity. My then-supervisor responded with characteristic wit:
When I called opposing counsel about it, he said they always used whereas in stipulations and his managing partner had insisted on using them in this case. This led me to ask: is there any reason to use whereas clauses? According to Garner, the answer is no:
One significant feature of these whereas clauses is that they usually have no legal effect: they are merely preliminary statements providing introductory background information before the binding promissory language.
—Bryan A. Garner, A Dictionary of Modern Legal Usage 929 (Oxford University Press) (2nd ed. 1995)
Let’s break this example down:
Until lawyers can rid themselves of this fear, they will never embrace plain language in writing and speaking.The Direction of Your Attention
Lawyers love to direct people’s attention to things. It could be an exhibit (“directing your attention to the bloody glove”), another witness’s testimony (“I’d like to direct your attention to the plaintiff’s direct examination”), or a legal concept (“directing your attention to the reasonable-person standard”). As many have already written, there are much better ways to transition into another topic.
In this post, I have two different concerns: what is the purpose of the phrase and where does it come from?
On the first point, I have found absolutely no evidence that the phrase has any special legal meaning. If anyone finds evidence that it does, please let me know.
On the second point, I have heard rumors that this phrase was used by lawyers in Elizabethan England, but I’ve only been able to track the phrase back to 1784.
— Barry Popik (@barrypopik) January 17, 2016
Almost no one outside of the legal community has used the phrase since the early 20th Century.
And if a ScotusSearch of US Supreme Court oral arguments is any indication, even lawyers are using the phase much less often. Lawyers and the justices used the phrase a total of 86 times since 1959, but only 8 times since 2000.Enclosed Please Find Gobbledygook
Legal motions and correspondence are replete with “enclosed please find,” and its close cousins “attached please find,” and “please allow.” This is nothing new.
These pleases have been criticized by writing treatises since the 19th century.4
A more ridiculous use of words, it seems to me, there could not be.
—Richard G. White, Every-Day English 492 (1880)
Enclosed please find’s lineage is not particularly distinguished or even connected with the law. It seems to have picked up steam just as “herewith enclosed” declined, and it became part of the form language used in magazine mail order forms, like the one below:
Attached please find has a similar background, and the first use I could find was this request in 1856 to place advertising in a magazine:
Today, it serves as an electronic enclosed please find typically used for work e-mails.
And don’t forget the begging that please allow this evokes:
In this instance, lawyers can stop saying please and just attach, enclose, and include.Check Your Premises
“Premises considered” used to be a word people actually used in Jamestown in the 17th century:
The Heathen enter frequently into some of the remote dispers’d habitations of the Christians, the premises considered, what can they see which should make them in love with their Religion?
-Anonmyous, “Advisive Narrative Concerning Virgina” (W. Godbid) (1662)
The phrase hasn’t had a place in standard English since 1810.
These days, premises considered shows up in the pro-forma conclusion to a shapeless pleading written by a lawyer who has no clue what it means:
One who writes “wherefore premises considered” in the prayer of a court paper would be hard pressed to say what the premises are, other than everything that has gone before.
—Bryan A. Garner, A Dictionary of Modern Legal Usage 685 (Oxford University Press) (2nd ed. 1995)
We need to let this one go too.To Know These Presents Is to (Not) Love Them
Yes, lawyers still write know all men by these presents to mean “take notice.” This one goes back a long time. It first comes up in Google Books in 1695. And no, there probably was never a reason to use this phrase, either.
Wherever lawyers stand on legalese, they should, at least, stand on reason.
Bryan A. Garner, Garner’s Dictionary of Legal Usage 518 (Oxford University Press) (3d ed. 2011). ↩
Bryan A. Garner, Garner’s Dictionary of Legal Usage 314 (Oxford University Press) (3d ed. 2011). ↩
Lawyers, Stop Writing (and Saying) These Things Immediately was originally published on Lawyerist.com.
Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.
Brian Langille, Professor of Law, University of Toronto and Pnina Alon-Shenker, Associate Professor and Director of Ryerson Law & Business Clinic, Ted Rogers School of Management at Ryerson University
Reprinted with permission. (2015) 4:2 Canadian Journal of Human Rights 211
Excerpt: Introductory abstract and Parts III and IV
[Footnotes omitted. They can be found in the original via the link above]
In this article, we argue for purposive interpretation of statutory labour laws when issues of their “scope” or “range of application” arise. While this purposive approach has been rhetorically dominant, it often fails to fulfill its promise in our case law. Drawing on Tussman and tenBroek’s work, this article calls attention to the structure of thought involved in legislative “classifications”, which is not a new idea but has been absent from current discussions. We stress that determining appropriate coverage of labour laws requires rational and pragmatic reasons for treating people differently which go beyond legislative classifications to the purposes of the specific law. This article critically reviews the Supreme Court of Canada’s recent decision on the application of human rights laws to law firm partners in McCormick v Fasken Martineau DuMoulin LLP in an effort to show how the purposive approach is invoked, how it is then either ignored or applied incorrectly, and how the purposive approach ought to have been deployed if we had remained faithful to its structure and demands.
…III. Some Canadian Illustrations A. When Things Go Right
We refer to Canadian cases from several labour law contexts as a starting point and to cement our basic idea of “purpose” in understanding the proper scope of application of various labour laws. We begin by noting that when determining coverage of labour laws (and thus possible and proper segmentation), Canadian courts, at least in some circumstances, simply think in terms of specific statutory purpose (and have not been tripped up along the way by labour law’s commonly understood overall purpose). In these cases, the concepts with which we have been dealing, such as “employer” and “employee”, even though present, provide no barrier to the protection of those who should be protected, i.e. to the achievement of specific statutory purposes. However, the central and potentially radical import of these cases has gone, as far as we can tell, largely unnoticed.
Our first case example involves a truck driver who was crushed between his own truck and that of a fellow independent contractor. The Ontario Court of Appeal held that under Ontario’s Occupational Health and Safety Act, the broker for this group of independent truck drivers had to establish a health and safety committee. Such a committee was required “at a workplace at which 20 or more workers are regularly employed.” The question raised in this appeal was whether the truck drivers, who were from one legal point of view independent truck owner-operators (and thus not employees), were “regularly employed” within the meaning of section 9(2)(a) of the Act. The answer is yes. The goal of creating safe workplaces is not to be hobbled or thwarted by passing this goal through another substantive filter of legal categories having no rational relationship to that objective. The idea of “employer” and “employee” to be deployed in this case is completely filled up by this way of thinking. All that is required is the statute, an understanding of its purposes and a rational line of thought from purpose to “coverage”.
The same logic has been applied to human rights statutes. Our second example involves a cook employed by a catering company who was assigned to a railroad gang in rural Saskatchewan. Soon after his assignment the railroad gang discovered that the cook was HIV positive. Whilst the group had a variety of responses, the roadmaster was seriously concerned and refused to eat food prepared by the cook. The Human Rights Tribunal found that whilst the cook had not explicitly been fired, the inhospitable environment constituted constructive dismissal. The issue on appeal was whether the railroad gang or the roadmaster had “employed” the cook. Canadian Pacific argued that if the cook was not employed by the railroad gang, he could not be constructively dismissed by them. The court disagreed. The terms “employer”, “employ” and “employment” within human rights statutes are to be interpreted to advance the purposes of those statutes. Narrow definitions of these terms defeat those purposes. In the cook’s case, the railroad gang’s “utilization” of the cook was sufficient to find an employment relationship for the purposes of human rights statutes.
These are the sort of cases we wish to explore. The basic ideas we take from these cases are the following. First, that the key idea in these cases is simply that of purposive statutory interpretation. Second, that statutory purpose can take us just about everywhere we need to go in thinking about most labour laws. Third, this means that we will have as much segmentation as we need and should have if we simply apply labour law to whom it should be applied. Fourth, that this does not require the creation of new categories of workers, or new labels – in fact we can use any term we wish as long as we use it sensibly, i.e. purposively. Fifth, and more controversially, the urge to define new categories is a legacy of our starting point, particularly the traditional employer/employee relationship and the idea that labour law emerged as a need to redress imbalances therein. The trick, in short, lies in simply sticking to the statutory purposes at issue in any case. This would help liberate our thinking and enable us to reconceive our account of labour law’s overall purpose in a way which fits with rational legal decision making, and also with much more profound normative thinking than the simple tale of inequality of bargaining power permits.
These cases set an example for, and issue an invitation to, all of our labour laws. In a case such as that of the Ontario health and safety committee, there are statutory “definitions” but they do no “work”. They are on their face “empty”. The real work has to be done by thinking about what the statute is trying to do. Our courts and tribunals have generally done so with no difficulty, but unfortunately not always.B. When Things Go Wrong
Faskens is a striking example of how things can go wrong if we ignore these basic points. The case is one of overt discrimination on the basis of age. The facts are as follows. McCormick was a partner in the Vancouver office of a large (by Canadian standards), law firm which we will refer to simply as “Faskens”. About 650 lawyers worked for the firm and of these, 260 were “equity partners” who had an ownership interest in the firm. McCormick was an equity partner. The Partnership Agreement at Faskens contained a mandatory retirement policy at age 65. McCormick complained, not unreasonably, that this violated the Code, which prohibits discrimination in employment on the basis of, among other grounds, age. There is no denying that this was age discrimination. It was not sophisticated, covert or “adverse effect” based. There was no “facially neutral rule” which had an “impact” upon a protected group here. Faskens is simply a case of overt, intentional discrimination against an individual which cost him his job. It was as if Faskens had simply said you have to go because you are a Catholic or a Jew or black or a woman.
Given this obvious point, Faskens’ legal escape route was to argue that the Code, in its entirety, did not apply to the relationship between law firms and their partners. Their argument, unattractive as it may be, was that law firms can legally discriminate against partners of the firm. This means that partners of law firms can be forced out of the firm not simply on the basis of age, but also on the basis of sex, or religion, or race. That is quite a striking claim. The idea that one group of Canadians, no matter whether rich lawyers or poor agricultural workers, were somehow carved out of these sorts of basic human rights protections is, on its face, quite an extraordinary one. Yet this is the claim which Faskens made. Faskens asserted that the legal basis for this most unattractive legal conclusion was the idea that McCormick was not an “employee” of Faskens. Because McCormick was a partner, he could not be an employee under the Code. Since the Code protected only employees, the protections were not applicable to him.
This was the argument which the British Columbia Court of Appeal accepted. Human rights codes do not apply to law firms in their relations with their partners. The law firms are immune from human rights law. That is quite a “knock out” result. By contrast, the Supreme Court rejected the notion that “a partner in a firm can never be an employee under the Code”. But it also admitted that “the structure and the protections normally associated with equity partnerships mean they will rarely be employment relationships for purposes of human rights legislation”. That is, while the Court of Appeal focused on partnership as a legal concept which cannot be reconciled with an employment relationship, the Supreme Court examined “the substance of the actual relationship” and reached very similar results. How did the Supreme Court get there?
First, the Court expressed its view of the issue before it as follows:
The issue before this Court, therefore, is how to characterize Mr. McCormick’s relationship with his firm in order to determine if it comes within the jurisdiction of the Code over employment. That requires us to examine the essential character of the relationship and the extent to which it is a dependent one.
No rationale or explanation was offered for this requirement which turns out to be critical to the Court’s conclusion.
Second, and in our view surprisingly, the Court began not with the Code, but with a long explanation of how law partnerships, in this case at Faskens, actually work. At Faskens, the 260 equity partners run the firm through a Partnership Board of 13 partners from across the firm’s various offices. The Board appoints the Managing Partner. There were about 60 partners in Vancouver and the British Columbia region sent three partners to the Board. Board members are elected by the partners and at one point, McCormick himself had served on the Board (under its previous form as the Executive Committee). The “constitutional” basis for all of this was the Partnership Agreement (which also contained the mandatory retirement policy of which McCormick complained). The Partnership Agreement could be amended only by vote of the partnership as a whole. (Thus, McCormick was in fact “fired” under the mandatory retirement policy by a majority vote, or perhaps nonvote to change the policy, of his partners). Partners such as McCormick have an “ownership” interest in the firm and a share of the equity. The mandatory retirement policy took the form of requiring that all equity partners divest their share of ownership at 65. It was theoretically possible under the policy to make an arrangement to continue working for the firm after having ceased to be an equity partner, but the Partnership Agreement stated this was to be “the exception rather than the rule”. Basically, once you cease to be an equity partner, you are out. This is what happened to McCormick.
Third, and eventually, the Court turned its attention to the Code. It began its treatment with the almost ritual invocation of the ideas that the Code is “quasi-constitutional” legislation and that it “attracts a generous interpretation to permit the achievement of its broad public purposes”. But after their incantation, these ideas exit the judgment.
Fourth, the Court then expressed its view about those purposes:
Those purposes include the prevention of arbitrary disadvantage or exclusion based on enumerated grounds, so that individuals deemed to be vulnerable by virtue of a group characteristic can be protected from discrimination.
That sounds reasonable enough. In fact exactly right. And is this not precisely what happened to McCormick?
Fifth, the Court made the very important assertion:
The Code achieves those purposes by prohibiting discrimination in specific contexts. One of those contexts is “employment”. The definition of employment must be approached consistently with the generous, aspirational purposes set out in s. 3 of the Code and understood in light of the protective nature of human rights legislation, which is “often the final refuge of the disadvantaged and the disenfranchised” and of “the most vulnerable members of society”. This is the philosophical framework for ascertaining whether a particular workplace relationship represents the kind of vulnerability the Code intended to bring under its protective scope.
Again, that sounds right – and would give McCormick heart.
Sixth, the Court then turned to the language of the Code – it does apply to “employment”. That was the basis of McCormick’s claim. He claimed that he was being forced out of employment at his law firm because he was 65. So the legal issue is just our issue – what does “employment” mean for the purposes of the Code? The Code itself is singularly unhelpful – as are most labour or employment law statutes – in this regard.
For years, we both have been confident of the view that the Code does not concern itself with the niceties, or inadequacies, of the familiar labour law distinction between “employees” and “independent contractors”. Whatever the distinction’s usefulness, say in regards to issues of vicarious liability, it is intellectually and legally useless here because no one cares, and the Code does not care, whether you refused to employ a person as an employee or as an independent contractor if the reason you did so was because of sex, race, religion or age. The Court helpfully confirms this “expansive” approach. Again, so far so good for McCormick.
Seventh, unfortunately, the Court then took the following, unexplained tack. Rather than developing the idea of the purposes of the Code, it embarked upon a very doctrinal, arid and terribly familiar discussion of “employment” in the abstract – all unrelated to the discussion thus far about the allegedly broad purposes of the Code. The Court simply asserted that
[d]eciding who is in an employment relationship for purposes of the Code means in essence, examining how two synergetic aspects function in an employment relationship: control exercised by an employer over working conditions and remuneration, and corresponding dependency on the part of the worker.
The Court very briefly explained that “the emphasis on control and dependency … is consistent with approaches taken to the definition of employment in the context of protective legislation both in Canada and internationally”. The Court accepted that “while significant underlying similarities may exist across different statutory schemes dealing with employment, it must always be assessed in the context of the particular scheme being scrutinized.” But control and dependency seems to flow from a large scale notion of labour law’s standard and tired story (of protecting vulnerable workers), which gets in the way of, and defeats everything just said about, the purposes of our human rights laws (of preventing victimization based upon a prohibited ground) and McCormick’s claim.
The rest of the decision constitutes a meditation upon the ideas of “control” and “dependency”, along with the development of the notion that being a partner is inconsistent with these two ideas.
Along the way to this conclusion, the Court added to our problems in a variety of ways. For example, it seemed at ease with the idea that it is appropriate to look at the jurisprudence under collective bargaining statutes to ascertain the meaning of employment for the purpose of human rights law. Note that the Court cited Guy Davidov’s work to explain its shift to control and dependency tests when examining employment for the purpose of the Code. The Court asserted that this move was “consistent with the approaches taken to the definition of employment in the context of protective legislation” and again referred to Davidov’s work. But even labour law scholars who have defended the traditional idea of labour law’s mission must find this move puzzling. Davidov, for example, acknowledged that some laws (such as human rights and health and safety regulations) have broader application. When constructing his test for who is an “employee”, which is built on criteria such as dependency and control, Davidov stressed that his focus was on “the appropriate scope of employment standards and collective bargaining laws”, rather than human rights and health and safety regulations which are quite different.
The Court also suggested that partnership law and the very idea of partnership have relevance to the coverage of our human rights codes. This seems implausible – partnership surely is as irrelevant to the coverage of the Code as the idea of “independent contractor”, flowing from vicarious liability law, was to the health and safety committee case discussed above. The Court also stressed the fact that partners have the chance to participate in decision making processes which affect them, but the relevance of this fact remains unexplained. (One might, perhaps, entertain the idea that this would be a relevant consideration if the issue were collective bargaining coverage).
The bottom line is that law firm partners, such as McCormick, have no human rights protection because they do not fit the standard model of an “employee” according to the test of “control” and “dependency”. Rather, because they have some degree of control they look more like the standard narrative’s picture of an “employer”. The most radical statements are the Court’s conclusions that “[i] n most cases, … partners are not employees of the firm, they are, collectively, the employer”, and that as a partner, McCormick is seen “more as someone in control of, rather than subject to, decisions about workplace conditions.”
Note that no explanation at all was offered for the implicit conclusion that someone cannot be an employer for some purposes and also an employee for another purpose. Nor was there a robust engagement with the obvious point – that, while as a partner McCormick exercised more control and suffered less dependency than many other employees, he was still ousted from the partnership because of his age simply because a majority of his colleagues thought that was a good idea. His lack of control on the very point at issue was the reason for the litigation. The Court seems to be of the view that because he could object and vote against the mandatory retirement policy, he was the author of his own misfortune. So too the Court was of the view, it seems, that because partners have a sort of “tenure” (i.e. are much more difficult to fire), this was a reason to take their removal from the partnership less seriously, rather than more seriously.
On the test the Court adopted, one is left wondering if there are not a lot of other employees who are now no longer covered by human rights law. So, to take an example close to home, tenured university professors exercise a lot of control and suffer much less dependency than most workers. Are they (we) now excluded?
The main point for our purposes is this. The Court elided the idea of the rationale for extending human rights protection to those groups identified by the prohibited grounds (which, as we have just seen and as the Court itself noted, is the idea of their vulnerability in virtue of the group characteristic) with the idea of the various contexts in which the Code seeks to protect those so identified as vulnerable, e.g. housing, service provision and employment. Here the Court slid into not only a moralized (vulnerability) account of why we have human rights protections for certain groups (a sound move), but also to a moralized (vulnerability) account of the contexts in which these protections are to be operable (a very unsound move).
Here, in the form of a question, is a simple way of putting this point: what if a wealthy black person, say an equity partner at Faskens, were denied accommodation on the basis of race? (Or refused service in a restaurant?) We would not “moralize” the housing market (or provision of restaurant services). We would not say that only those members of protected groups (who are statutorily deemed to be vulnerable) who are also weak and desperate for housing (or other services such as food) get human rights protection. That is, you don’t have to be “doubly vulnerable”, once in virtue of membership of a protected group and again in the particular sphere of market activity (services, accommodation and employment) which is at issue. That is what the Court constructed here – a double vulnerability.
A second critical point is this – the idea, and any discussion, of the specific statutory purposes at stake were completely dropped out. As a result, we were never told why these ideas of “control” or “dependency” bear at all on our reflections about “coverage” (i.e. what is an “employment” for the purposes) of our human rights law.
What should have been done? Our suggestion is that we should not moralize, in this case via a familiar account of the general purpose of labour law as a whole, a straightforward legal problem of determining statutory purposes and applying the statute rationally in light thereof. We need to advance a sensible, purposive, rational, pragmatic, non-moralised question about allocation of responsibility, incentives and relationships which are quite oblivious to any standard notion of “employment”. If this view is right, we are able to end up with just the right amount of segmentation, or lack thereof, which our various laws demand.IV. Getting It Right Next Time
There are three parts to a plan to avoid the problem we have identified and which is so well represented by Faskens. First, we need to revisit the idea of statutory purposes and explore the structure of reasoning involved in such an endeavor. Second, we need to carefully articulate our statutory purposes and examine concrete cases such as Faskens through this lens. Third, which we will defer for another day, we have to offer a new and better account of labour law and its basic purpose, which fits with the specific purposive approach, does not “get in our way”, and thus avoids the unnecessary problems on display in Faskens.A. Purposes and Classification
Hugh Collins has alluded to the possibility discussed here – that the problem of “coverage” of various labour laws could be solved by thinking about purposes. But he dismissed this possibility, writing:
It is always tempting to urge the courts to adopt a purposive approach, and indeed this was attempted for a brief period in the USA. But without additional guidance this seems highly indeterminate and vulnerable to judicial misconceptions of purpose, and furthermore it seems unlikely that this would overcome the problem of choice described above. If the courts are to engage in the imposition of forms of government over economic relations, they require a firmer set of criteria which both make sense in the world and establish intelligible boundaries to the reach of employment protection legislation.
There are three objections listed here – indeterminacy, misperceptions of purpose and “the problem of choice”. None of these seem, to our mind, to be particularly powerful. The first two can be met by the observation that nothing could be more indeterminate nor misconceived than the type of reasoning we see on display in Faskens, which is visited upon us by our current thinking. Collins’ view is that we need “firmer criteria”. Our view is that we have too many criteria which are too firm and too familiar. By the “problem of choice”, Collins refers to his discussion of the courts deferring to the intention of the parties as to the form of the engagement of labour. It is hard to see how this is not the very point in issue – that is, that the issue is one of public policy, not private choice. This is precisely the focus that the idea of attending to purpose is meant to achieve.
As usual, however, Collins has accurately uncovered a real problem. It was one which Tussman and tenBroek laid bare, and provided the basics of a solution to, decades before. In their famous essay “The Equal Protection of the Laws”, the authors provided the intellectual building blocks for rational legal thought about legislative “classifications”. The basics of the approach are as follows. All laws will not apply to all people. Some laws will be general and apply to all, and some will be “special” and apply to some. In the latter case, the law will by necessity “classify” those to whom it does and does not apply. The problem of classification – of the legitimacy of classification57 – has a structure. To classify is to define a “class” to whom the law applies. To do this involves designation of a “quality or characteristic or trait or relation, or any combination of these, the possession of which, by an individual, determines his membership in or inclusion within the class” (e.g. aliens, all over age 25, foreign corporations). Further, a reasonable classification is one which includes all who are similarly situated and none who are not. But determining who is similarly situated presents a problem. We need some independent point of reference to do this job; it cannot be enough that all in the class possess the trait set out to define the class. That would be tautological and any classification would be therefore reasonable. As Tussman and tenBroek observed:
The inescapable answer is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law.
The purpose of a law may be either the elimination of a public “mischief” or the achievement of some positive public good. … We shall speak of the defining character or characteristics of the legislative classification as the trait. We can thus speak of the relation of the classification to the purpose of the law as the relation of the Trait to the Mischief.
Then our authors came to the problem which Collins confronted decades later when addressing the problem of classification in labour law, and they hit the same nail on the head. Tussman and tenBroek wrote that “[a] problem arises at all because the classification in a law usually does not have as its defining Trait the possession of or involvement with the Mischief at which the law aims.”
This seems, at first blush, to be the case. Most statutes do not have a definition section which reads “this act applies to all those tainted by the mischief that this statute aims to cure”. It would make life a lot easier if more statutes did so. This is because if a statute defined the class to whom it applied directly in terms of those who suffer from the mischief to be ameliorated, legal life would be much simpler because “[t]he class, being defined directly in terms of the Mischief, automatically includes all who are similarly situated with respect to the purpose of the law.”
The drawbacks of such an approach which Collins identified above, it will be recalled, are just problems with adjudicative “discretion” – i.e. indeterminacy and misconception of purpose and so on. Tussman and tenBroek observed along the same lines that “[t]his procedure requires, however, delegation of considerable discretion to administrators. … Legislators, reluctant to confer such discretion, tend to classify by Traits which limit the range of administrative freedom.”
So, it seems we are left with the problem of two classes: the mischief (M) and the identification of a trait (T) which is a sort of proxy for the “ideal” solution of simply one class – the mischief itself. Thus, the law often generates for itself the following familiar problem. The group identified by the Trait, i.e. the nonpurposively described class (T) to which the law in its attempt to capture the class defined by the statutory purpose (M), may or may not in fact overlap with the class (M) we seek to help. As Tussman and tenBroek outlined for us:
In other words, we are really dealing with the relation of two classes to each other. The first class consists of all individuals possessing the defining Trait; the second class consists of all individual possessing, or rather, tainted by, the Mischief at which the law aims. The former is the legislative classification; the latter is the class of those similarly situated with respect to the purpose of the law. We shall refer to these two classes as T and M respectively.
Now, since the reasonableness of any class T depends entirely upon its relation to a class M, it is obvious that it is impossible to pass judgment on the reasonableness of a classification without taking into consideration, or identifying, the purpose of the law.
There are five possible relationships between the class defined by the Trait and the class defined by the Mischief. These relationships can be indicated by the following … :
(1) All T’s are M’s and all M’s are T’s
(2) No T’s are M’s
(3) All T’s are M’s but some M’s are not T’s
(4) All M’s are T’s but some T’s are not M’s
(5) Some T’s are M’s; some T’s are not M’s; and some M’s are not T’s
One of these five relationships holds in fact in any case of legislative classification.
We can pause here to say that in our view, the Supreme Court in Faskens produced an under-inclusive result (3, probably). Their understanding of T (employee) did not reach all in M (those in need of and entitled to human rights law protection). This was because their T proxy for M was really, if anything, a proxy for something else. (And the best account of “control and dependency” is that it is the Trait for identifying those involved in the Mischief of harms caused in circumstances we see as calling for vicarious liability).
Now we face the real problems – and have at least some material to help us do so. Is Collins right in saying that it is preferable to not define T as M, so that T = M? Is it true that we need to separate T and M? Are we worried more about discretion than irrational definitions (T’s)? And is it what our statutes are actually doing?
We can begin by noting that Tussman and tenBroek are, unlike Collins, agnostic on this point. They simply noted that as a matter of fact, legislatures are reluctant to “confer such discretion” on adjudicators and tend to “classify by trait”. They passed no explicit judgment on whether this is a good legislative judgment or sound legal procedure. Yet implicitly, their whole article is testimony to the problems the law gets itself into when we refuse a grant of rationally governed discretion and insist on using both T and M in an attempt to curb discretion. Their article would not have been necessary without this legislative tendency.
Recall that Tussman and tenBroek were making a point about the constitutional demand of equality. We are not. We are not making a constitutional argument that, for example, Faskens is wrong (although such an argument is clearly available). But it turns out that the idea of equality – treating like cases alike and how we know what counts as being alike – is basic to legal thinking. At the root is the idea of having rational reasons for treating people differently, and this is just the key to deciding to whom a statute should apply.
As we have noted, however, most of the time we do not really have a very helpful definition of T in our labour law statutes. Most of the time we have, as in Faskens, simply the invocation of the word “employee” and perhaps “employer” as one who employs employees. As a result, many of our statutes define, as we have noted, T in terms of “striking circumlocution”.
Occasionally we find very awkward attempts to define T (such as “dependent contractor”). However, these usually turn out to be unhelpful responses to poor adjudication, under a definition of the “striking circumlocution” variety, in which there has been a failure to equate T with M.
The point being made here is that in cases where there is no real statutory definition of T, there is an obvious tendency to fill this void, by visiting upon this non-defined T, the standard and tired labour law narrative. Our point is that this is a large mistake, as Faskens shows so well. This is what the Supreme Court of Canada did in Faskens and the result was, as we have seen, that the Court did not attend at all to the relevant specific purposes of the Code. If Faskens shows anything, it is that we are always doing purposive interpretation, whether we know it or not. It is better to do it overtly and correctly.B. What the Supreme Court of Canada Should Have Done in Faskens
Let us now go back to the decision in Faskens and see whether this better understanding of classification could have led to a different analysis and perhaps a different result. The central issue in Faskens was an issue of classification – to whom the Code applied, and whether it applied to McCormick or not. The Code prohibits discrimination by a “person” against another “person” (the “complainant”) on the basis of various prohibited grounds, such as race, sex and age in various social contexts, such as provision of services, housing and employment.
The statutory definitions, however, are not very helpful to McCormick nor to Faskens. The definition of a “complainant” is completely empty, while the definition of a “person” is circumlocutory. There is no definition of an “employee” or an “employer” (which is listed under the definition of a “person”), and the definition of “employment” tells us absolutely nothing.
An attempt to extract a definition of the class to whom the Code applies by various characteristics (T) would be completely tautological: it covers those who are discriminated against on the basis of prohibited grounds and those who discriminate against them in various social contexts, such as employment.
An independent point of reference is therefore needed. We need to articulate the mischief (M) which the Code aims to eliminate, in order to identify all the persons who are similarly situated with respect to the purposes of the Code, and whether McCormick is one of them. As noted above, the Code does not provide a definition of the class to whom it applied (T), and, all the more so, a definition which relates to the mischief to be ameliorated by the Code (M).
Zooming in on the context of employment, we have to think about the purposes of the Code in order to have a better understanding of the terms “employee”, “employer” and “employment” – those persons who are similarly situated for the purposes of the Code. It should be acknowledged that the meaning of “employee”, “employer” and “employment” may be different for the purposes of different acts and even different statutory provisions within a single act.
Probing the purposes of the Code, the Court could have started its analysis in Faskens with section 3 of the Code, which was mentioned only in passing. While the Court correctly acknowledged that “employment” should be interpreted in a way that was consistent “with the generous, aspirational purposes set out in s. 3”, the Court does not go about this analysis. Here is the full text of section 3:
The purposes of this Code are as follows:
(a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;
(b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;
(c) to prevent discrimination prohibited by this Code;
(d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;
(e) to provide a means of redress for those persons who are discriminated against contrary to this Code.
Section 3 is only somewhat helpful. It talks about promoting public purposes such as “equality”, “mutual respect” and “dignity” and preventing a public mischief – that is, “discrimination” – without explaining these very big terms. Here our case law and scholarly literature can be auxiliary. Discrimination is often understood as
a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individuals or groups not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.
Three additional points should be noted. First, discrimination is more than just a distinction between individuals. Generally, we are allowed to make a distinction in favour of or against another person on the basis of one’s favourite rock band or the colour of one’s shirt. Distinction amounts to discrimination when the unequal treatment is based on an enumerated ground, i.e. a personal characteristic, such as colour of skin, race or sex, which is immutable (or constructively immutable), and should therefore not be the basis for the assessment or treatment of individuals. The list of prohibited grounds under the Code corresponds to historically disadvantaged groups whose stigmatization and marginalization the Code aims at redressing.
Second, treating like people alike may still result in discrimination. The purpose of the Code is therefore to promote “substantive equality” rather than identical treatment. Promoting (substantive) equality entails “the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration.”
Many legal and philosophical scholars have attempted to provide substantive content to the concept of equality by identifying several principles that equality aims to protect. While some advanced a single principle or purpose – such as ending oppression, ensuring sufficiency, or protecting the interest of belonging and the benefits of full membership in social, economic and political lives – others took a more pluralistic approach. Sophia Moreau, for example, spoke about the three wrongs of discrimination: unequal treatment which is associated with stereotyping and prejudice, oppression and denial of basic goods. Denise Réaume specifically discussed the harms that are associated with discrimination in the private sector as implicit or explicit conduct motivated by stereotypes or prejudice, or by a denial of a fair opportunity to participate in important activities and social institutions. Finally, T.M. Scanlon articulated five diverse reasons for eliminating inequality, including alleviation of suffering, prevention of unacceptable forms of power or domination and elimination of stigmatizing differences in status.
Third, discrimination is prohibited only in various social spheres such as housing, provision of services and employment. Generally, people are autonomous moral agents. They are obliged only to respect others’ rights and liberties (including the right to equality) by not restricting or interfering with other persons’ freedom to enjoy their rights and liberties. However, in some social spheres, there is a case for imposing broader obligations on private actors. When they are in a position to distribute and redistribute benefits or resources comparable to the State and have the ability to create social change, these actors are subject to a duty to treat people with equal concern and respect.
Accordingly, the Code applies to persons who are treated unequally on the basis of personal immutable characteristics (rather than their merits) corresponding to the enumerated grounds (such as black, gay or older people) and are denied certain goods or full participation in economic, social, political and cultural lives. They are those who suffer from the mischief that the Code is designed to cure (M).
In the context of employment, this includes employees, independent contractors, temporary, contract, seasonal and casual workers, volunteers, interns, co-op students and any person who engages in economic or productive work in the labour market. They are all similarly situated with respect to the purpose of the Code because any type of work is “one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.”
The Code also applies to those who are in a position to create or exploit this mischief – those who have the power to bring about social change and redistribute benefits or goods in a way that will repair injustice and social exclusion. In the context of employment, this could include employers, temporary employment agencies, contractors and many more.
Considering that McCormick engaged in productive work (providing legal services to clients on behalf of the partnership) and that Faskens could and had, in fact, affected his ability to have full and meaningful participation in economic and social life by imposing a mandatory retirement policy, the Code applies to his relationship with Faskens and generally to the relationship between a law firm partner and a law firm partnership.
Although Faskens’ mandatory retirement policy clearly established a prima facie case of age discrimination, the Supreme Court of Canada could have then examined whether it was justified for other reasons – either some sort of estoppel given that McCormick had benefited for years from the arrangement of forcing other partners to retire, or statutory exceptions such as a bona fide occupational requirement.
Here an analysis of the meaning of age discrimination and the purposes of anti-age discrimination law becomes relevant. In short, while age-based distinctions are considered “a common and necessary way of ordering our society” – and less harmful than other forms of discrimination – age discrimination might be associated with significant wrongs especially when it comes to older people. As Alon-Shenker has written,
[p]eople of advanced age do represent a historically disadvantaged group, particularly in the workplace. Although seniors may not be a typical “minority group,” and may even include privileged individuals, they have some central characteristics of minority groups such as identifiable physical characteristics and shared social and institutional expectations (including the expectation of retirement). They are often subject to negative stereotypes and they face discrimination in many spheres, including employment, health services and housing.
Accordingly, anti-age discrimination in employment law aims at promoting various purposes to remedy these wrongs, including preventing opportunistic behaviour by employers, who are tempted to dismiss older workers when their labour costs are higher than their marginal productivity; promoting displaced older workers who experience major challenges to reemployment; protecting against ageist stereotypes and ageism; and alleviating social isolation, oppression and economic deprivation among older workers.
Although no categorical answer can be given here, it seems as though Faskens could have provided evidence to establish a claim that its mandatory retirement policy did not involve any of the aforementioned wrongs. For example, the law firm could have argued that the policy was not designed on the basis of a stereotypical belief that older partners were not productive, but rather was designed to benefit all partners by ensuring the regenerative turnover of partnership shares. The result would have been that while the Code applied to McCormick (and to law firm partners in general), and the mandatory retirement policy was discriminatory on its face, the policy was justifiable under the Code. This would have been perhaps a disappointing result for McCormick, but a promising and sound result for many other people who engage in productive work and are vulnerable, by virtue of a personal characteristic, to discrimination.
Canada entered 2015 internationally condemned as a climate laggard, and enters 2016 with a new government that received praise for its role in the Paris Climate negotiations. But the country’s work on climate change is far from done. The government has promised, within 90 days after the Paris talks, to sit down with the Premiers to develop a national framework on climate change.
In this post we review the Paris Agreement, its strengths and shortcomings, and what it means for Canada.
Evaluating the Paris Climate Agreement
In December the nations of the world gathered in Paris to negotiate a new climate treaty. Years in the making, the resulting agreement was described by the U.S. Secretary of State as “a victory for all of the planet and for future generations,” while world-renowned climate scientist, James Hansen, on the other hand, has said that it is “a fraud really, a fake.”
U.K. journalist, George Monbiot, captured well the sense of ambiguity around the meaning of the agreement when he wrote:
By comparison to what it could have been, it’s a miracle. By comparison to what it should have been, it’s a disaster.
How you assess this agreement depends, to a large degree, on what type of agreement you were hoping for.
If you wanted a good (if belated) first step – with the world coming together to acknowledge the urgency of climate change, to agree to strong long-term goals and to put in place some measures to help encourage future action by individual countries, then this agreement was a success.
If you were looking for an agreement that contained a realistic map or plan on how to achieve those long-term goals and avoid dangerous climate change, and recognized that solving the problem would require countries to make hard choices, then it wasn’t.
The agreement, of course, addressed a range of important topics beyond achieving these goals – from how countries can adapt to climate change, to financing for developing countries to shift to renewable energy. However, this post focuses on where the rubber really hits the road: the provisions related to reducing greenhouse gas emissions and avoiding the worst climate change.
How to achieve the Paris targets
Canada received a lot of attention in Paris when it endorsed calls to “strive” to keep global temperature increases below 1.5˚C (and below 2˚C at all costs). But what does that ambitious goal mean for Canada’s own national obligations and climate change plans? There’s nothing in the agreement that explicitly requires Canada (or any other country) to do more to achieve that goal.
Rather, the Paris Agreement is premised on each country choosing its own goals for reducing greenhouse gases, through intended “nationally determined contributions” (INDC). Canada’s current INDC was submitted in May 2015: a 30% reduction in greenhouse gas emissions below 2005 levels by 2030. Other countries have submitted their own intended nationally determined contributions, but collectively they would see global temperature increases of 2.7˚C – 3.7 ˚C – well above the Paris goals.
The … studies that assess temperature increases suggest that with the INDCs, we will witness 2.7-3.7 degrees C (median chance) of warming compared with pre-industrial levels. This is an improvement over business-as-usual trends, which would lead to 4-5 degrees C of warming, but falls short of the goal to limit warming to below 2 degrees C. Since temperature impacts are calculated out to 2100, the studies’ findings depend significantly on assumptions about what happens to emissions after the target date specified in the INDC — 2030 for most countries, and 2025 for the United States.
The Paris Agreement does commit to a “global stock-take” every 5 years, to evaluate progress towards achieving the 1.5˚C/2˚C goals, and it does require countries to update their Nationally Determined Contributions from time to time, but other than peer pressure, the Paris Agreement contains nothing that will ensure that the 2˚C promise, much less the 1.5˚C goal, will actually be achieved.
Equally concerning is that there are no real consequences for failing to meet those nationally determined commitments. Canada is, unfortunately, one of several countries with a record of failing to achieve its own targets for reducing greenhouse gas emissions.
Canada’s role in Paris
With two West Coast Environmental Law staff present in Paris, it was encouraging to see first-hand Canada’s new government’s more collaborative approach to the negotiations. Certainly, daily briefings for Canadian stakeholders by negotiators, and the inclusion of environmental representatives in the official Canadian delegation, were all appreciated.
Also appreciated were Canada’s commitment of new climate-related funding and (although more symbolic) its leadership on the 1.5 ˚C stretch-goal and on keeping Indigenous and Human Rights in the agreement. However, we were disturbed to see Canada associated with some of the more regressive positions of the U.S. and allies on other key areas in the negotiations (notably, seeking to undermine efforts to create a forum for examining strategies that help those climate vulnerable countries that experience climate-related “loss and damage”).
Canada’s role going forward
As noted above, the Paris Agreement does not legally require Canada to re-work its national target for greenhouse gases to reflect its commitment to strive to prevent global temperature increases of 1.5 ˚C, but morally we hope that Canada was not speaking out of both sides of its mouth in calling for a more ambitious international target.
Canada’s new government has said that it cannot finalize a new international commitment until it has sat down with the provinces to develop a new national framework on climate change. It has also said that as country Canada will “do its part” to achieve international climate targets.
Translating international targets into national, and then provincial, targets is going to take a new, transparent and science-based approach. During the Paris talks, West Coast Environmental Law released a proposal for such an approach – A Carbon Budget for Canada: A collaborative approach for federal and provincial leadership on climate change – recommending that Canada’s provincial and federal governments:
The Paris Agreement is a starting point, not an end point, for Canada – and for all countries of the world. Here in Canada, we need to work out our “fair share” in meeting the Paris Agreement’s goals, develop a real plan on how to deliver on that contribution and get going with some action. Paris is just the beginning.
This column was co-authored with my colleague Andrew Gage. Andrew is a staff lawyer at West Coast Environmental Law and the author of A Carbon Budget for Canada: A collaborative approach for federal and provincial leadership on climate change.
Like the idea of having a cloud office suite, but not crazy about being locked into Microsoft Office 365 or Google Docs software-as-a-service (SaaS) ? Two open-source companies, ownCloud and Kolab Systems, are working on enabling an office suite for your own private cloud.
A cloud office suite alternative to Microsoft and Google – CSC Blogs http://blogs.csc.com/2016/02/02/a-cloud-office-suite-alternative-to-microsoft-and-google/
Soon these tools will ready to go and we can finally have real control over out data.
Drupal 8.0.3 and 7.42 released | Drupal.org https://www.drupal.org/drupal-8.0.3
While Gmail’s new “Undo” feature can save you from an all-too-hasty click, it cannot save you from your own stupidity.
On January 7, the Louisiana Hearing Committee recommended one fiery lawyer’s permanent disbarment after determining he “had to be admonished for brandishing about his shillelagh, his action clearly inappropriate for a disciplinary proceeding.” The lawyer had been suspended from practice in Louisiana on an interim basis since March 2009.
When the court suspended his law license, the lawyer riposted by calling them a “bunch of pigs,” “gutless dogs,” and referred to the chief justice with a “sexual and offensive nickname” we can only conclude is too heinous to even include in the hearing report.
A week later, the lawyer sent another email to Disciplinary Counsel Ad Hoc denying the use of racially disparaging terms all the while “including many such terms along with other offensive terms” in the email. The same day, the lawyer he “notified Disciplinary Counsel Ad Hoc that he was a “pimp”, a “puppet”, an “Uncle Tom”, and an “OREO.””
In his next email, the lawyer explained “I Just Can’t Help Myself” then “launched into a string of racially offensive and obscene terms.”
It didn’t stop there.
On April 15, 2009, at 3.25 p.m., Respondent advised by email he had developed yet another nickname for Disciplinary Counsel Ad Hoc. This nickname was intended to be equally offensive. Later, at 5:27 p.m., Respondent offered by email to substitute a new offensive nickname for the prior offensive nickname.
On April 26, 2009, Respondent emailed Disciplinary Counsel Ad Hoc to advise him that Respondent was thinking of him and used a string of racially offensive and obscene terms to communicate his message.
The poor behavior continued with emails referring to opposing counsel in conflicting precedent as “SCUM” and “VERMIN”—and a judge as a “BIG GORILLA” who was attempting to accomplish “INSANITY.”
Comparing him to a “child who is sorry he got caught but not sorry for the infraction,” the committee found that the lawyer had committed numerous ethics rule violations and recommended permanent disbarment.
Not all jobs let you speak as boisterously as Donald Trump. Lawyering is one of them.
Featured image: “Man in shirt and tie sticking his tongue out and making the letter L” from Shutterstock.
Shillelagh-Brandishing Potty Mouth Loses Law License was originally published on Lawyerist.com.
How do you know whether your cloud software is sufficiently secure to meet your obligation to protect your clients’ information? Right now, there is no easy answer. You just have to educate yourself and then make up your own mind.
That could change as a result of the draft security standards that the Legal Cloud Computing Association released today at LegalTech. The standards are basically a sensible checklist of things you should expect to know about the software you use, like:
Plus, the standards set the expectation that you should be told all of these things, up front, by any cloud software provider that wants your business. The standards themselves make it clear that a company shouldn’t be able to earn your trust just by advertising that they comply. Compliance, in this case, would have to mean providing clear disclosures.
It’s possible to be cynical about this since all the members of the LCCA (Clio, DirectLaw, Rocket Matter, NetDocuments, CalendarRules, NextPoint, and Onit) sell cloud software to lawyers. But lawyers make their own rules, so why not cloud software providers? Besides, the LCCA has reached out to bar associations and hopes to work with them to help clarify what reasonable care looks like in the cloud.
The LCCA draft security standards for cloud computing are a pretty important step in setting expectations among lawyers, cloud software providers, attorney regulators, and clients.
Legal Cloud Computing Association Releases Security Standards was originally published on Lawyerist.com.
One of my 2016 New Year’s resolutions was to start with “Yes.” Happily, every so often an opportunity comes around that makes saying “Yes!” the only logical response.
The Law Society of Manitoba’s annual Lawyers for Literacy event is just such an opportunity. Each year for the past 5 years, lawyers and Law Society staff have signed on to spend the better part of a Saturday reading to children at West Broadway Youth Outreach (“WBYO”). As well as reading to kids, participating lawyers raise pledges to support the work of WBYO and donate books and toys for use in the organization’s programming.
WBYO is a grassroots organization focused on improving educational outcomes for children from socioeconomically disadvantaged families in Winnipeg’s core. Their mission is to “provide a safe, fun and caring environment where children are provided opportunities to learn and grow. Free structured programming and positive role models instill a sense of accountability, teach life skills, encourage positive behaviour and support children towards achieving their infinite potential.” Who could argue with that?
The benefits of this initiative are pretty obvious. Children get access to new books and are read to. Lawyers leave their comfort zones to step into a challenged community and make a difference. Money is raised to support literacy and learning activities. All who participate, whether as readers or listeners, have a fun day and make a few new connections. And that doesn’t include the many benefits of reading itself.
Over the past 5 years, Lawyers for Literacy has raised more than $60,000 for WBYO, which runs pretty much on a shoestring budget of approximately $80,000 per year. I’m already looking forward to my reading shift and will soon be pestering friends and colleagues for their pledges. If you’re interested in getting involved or want to support this truly worthwhile project, all the details are available here. This is the kind of initiative that begs to be copied and reproduced all over the country. Doubtless there’s a similar organization in your neighbourhood that would love to have you come out to read and support their work.
The Internet taunts jurors. Promising them answers. Beckoning them to Google the parties, the law, the lawyers. And after-all, how bad could one search be? If only those lawyers weren’t so boring. If only the evidence was presented clearly. If only the judge’s instructions weren’t steeped in legalese, then we could decide it without the Internet. Whatever the justification may be, whether curiosity got the best of them or it was something else, jurors are Googling. And they are compromising the appearance of justice and maybe justice itself by going beyond the evidence in the courtroom.
Last year, the Ontario Court of Appeal wrote about two cases where jurors performed forbidden searches. In R v. Farinacci, 2015 ONCA 392 and R v. Pannu, 2015 ONCA 677, the court recognized the dangers of Internet searches. One of the them being the reliability of the search results.
Given the ubiquity of the Internet and the ingrained habit of Googling just about anything, we must develop a realistic approach to dealing with the ever-present need to Google things. Either we need to prevent forbidden Internet searches or we need to develop a system for enforcing preventative measures. Alternatively, we need to evolve the rules of evidence to take into account Internet searches.
However, incorporating Google into trials would be a major departure from the current law. It would undermine hundreds of years of tradition, and it would change the roles of lawyers in the courtroom, possibly for the worst.
But simply telling jurors not to Google and then turning a blind eye to it is an unrealistic and insufficient approach. The Court recognized in R. v. Farinacci at paragraph 42 that:
in most cases, unless a juror talks about his or her online activity, it is likely to go undetected. While the information gathered here was relatively benign, and did not undermine the verdict or the fairness of the trial, that might not always be the case.
Similarly Justice Watt recognized at paragraph 110 in R v. Pannu that instructions not to “bring computers, tablets, cellphones, smartwatches or any devices with research capacities to the jury room at any stage of the trial… not to access legal databases, earlier decisions, pre-trial publicity or any other material … relating to any subject or person connected with the trial” … “is imperfect, of course, because it does not stop the curious from doing research elsewhere when the jury is not in the courtroom.”
It’s time we faced reality and came up with a comprehensive and practical system for dealing with the temptations of the Internet. I am interested in hearing your solutions.
A brand-new Windows PC, fully updated and unsullied by crapware, is a wonderful thing. Sadly, very few people ever get to experience it, because so many PC manufacturers bundle loads of junk software with the computers they sell. Instead of the high-performance machine you thought you were getting, you get a computer bogged-down by stuff you don’t need or want. If you bought a high-end computer, you may not notice right away. Speedy hardware generally covers up the drain on system resources. But sooner than it should, that extra baggage will make your high-end PC feel underpowered.
Don’t let that happen to you. The next time you buy a new computer, clean out the crap and set it up properly right from the start. This guide will walk you through the process.
(We do not have a similar guide for Macs because most of the important things you need to do to set up a Mac are covered in our 4-Step Security Upgrade. You should absolutely get that guide if you own a Mac or a Windows PC.)
27-page PDF download.$20.00 – Add to Cart Checkout Added to cart
New Survival Guide: How to Set Up Your New Windows Computer was originally published on Lawyerist.com.
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. R. v Tran, 2015 ONSC 5607
 Harrison and Blake both demonstrate that even where police misconduct falls short of obstruction of justice, it can serve as a basis to stay a prosecution involving the possession and trafficking of a substantial quantity of drugs. Here, the false creation of a pretext to search the Defendant’s vehicle, combined with the collusive fabrication of a story by the two lead Officers as to why they came to assist in the traffic stop of the Defendant, certainly amounts to egregiously wrongful conduct. This police misconduct outweighs the roughly 12 grams of heroin found by the police. That quantity of drugs is, of course, a serious matter; but the misconduct evidenced here is entirely beyond anything that the courts can accept.
2. R v Vader, 2016 ABQB 55
 Looking at all of these factors, I conclude that the public’s confidence in the administration of justice requires Mr. Vader be tried for the charges that he murdered Lyle and Marie McCann. Mr. Vader’s long and interrupted march to the courtroom is troubling, however given the seriousness of the charges, and the shared interests of Mr. Vader and the public in his very public name being cleared align to favour a full adjudication of the charges against him.
3. R. v. T.F. and T.A.F., 2016 BCPC 6
 The accused parents were clearly in a position of authority to the complainant. She was their daughter and, as a result, she was dependent on their care and support. The complainant was 14 years old and lived at home with her parents. She was also dependent on her parents for her safety and well-being. In these circumstances, it is my view that the defence of consent is not available to the accused. I would go further, and suggest, that only in rare circumstances, if ever, would the defence of consent be available to a parent who has applied force to a child.
The most-consulted French-language decision was Agence du revenu du Québec c. Groupe Enico inc., 2016 QCCA 76
 Le juge affirme que, lorsqu’un individu réussit, malgré de nombreuses embûches, à démontrer le comportement fautif de l’État, il faut viser les objectifs de punition, de dissuasion et de dénonciation prévus à l’article 1621 C.c.Q. Il souligne qu’il est anormal qu’un contribuable doive s’adresser aux tribunaux pour obtenir l’information que l’ARQ avait le devoir de lui transmettre. Il détermine que l’atteinte aux droits fondamentaux d’Archambault et d’Enico était intentionnelle et volontaire au sens de l’article 49 de la Charte. Sur ce point, il retient que l’atteinte intentionnelle et volontaire inclut « les cas où l’auteur a agi en toute connaissance des conséquences immédiates et naturelles ou au moins extrêmement probables que sa conduite engendrera ».
* 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.