This article was originally published in the January issue of Minnesota Bench & Bar.
Regardless of the verdict given, what attorney—having argued a case—hasn’t come away wishing for more insight into the minds and perceptions of the jurors? Given ten years of data from systematic surveys of jurors, some patterns in their responses emerge.
Early in my legal career I tried a civil jury case in Hennepin County District Court. The day after the jury decided the case, the presiding judge called me to say that it was his practice to meet with juries after they finished their deliberations and get their feedback on the trial, the judge, and the lawyers. He wondered if I was interested in hearing about that feedback as it pertained to me. Of course I was interested. Lawyers don’t have many opportunities to get jury evaluations, or any other evaluations. I learned some things from that jury and made some changes based on what they said. I learned that jurors did not like it when I moved too close to the jury box—it felt to them like I was invading their space. I also learned that my efforts to dress very conservatively in order to offset my youth and inexperience resulted in dress that they thought was too bland and serious. I have always been extremely grateful for the time that judge took to share the information with me.
When I began my own career as a district court judge, I made it a point to meet with every jury in any case I tried so that I could answer their questions and get their impressions on the trial process and their role as a jury. Some questions couldn’t be answered of course, especially the inevitable: “What would you have decided, Judge?” In addition, I sent them a survey a few days later and they were invited to return it with their thoughts and comments. Those discussions and jurors’ responses to the surveys offer interesting insights on the perceptions that jurors have of attorneys.Methodology
The data discussed in this article was collected from 109 jury trials conducted between 2000 and 2011, 91 of which were criminal and 18 were civil. Jurors returned 550 surveys: 489 from criminal trials and 61 from civil trials. The survey was designed to collect data about the judge, the court staff, the court facilities, the jury instructions, and the attorneys and asked for both objective ratings and subjective observations.
The majority of the respondents were from predominately rural counties of central Minnesota, in the 7th Judicial District. Results indicate these jurors are very respectful of the role of the judge and see the judge as a guide, teacher, and protector. They also universally note the helpfulness of getting jury instructions in writing in addition to the oral presentation.
Jurors were asked to respond to a series of questions that resulted in a numerical rating of the attorneys’ performance. In each of the categories, jurors were asked to rate the attorneys’ performance on a scale from 1=Excellent to 5=Very Poor. The categories they were asked to rate included Evidence Presentation, Courtroom Demeanor, Sincerity, Competence, and Preparedness. Jurors were also encouraged to provide written comments about what they liked about the performance of each attorney and to make suggestions they might have for improvement.
Data was analyzed by grouping all of the prosecuting attorneys and plaintiffs’ attorneys together as one group (referred to as plaintiff attorneys hereafter) and all of the criminal defense attorneys and civil defense attorneys as another group (referred to as defense attorneys hereafter). Follow-up analysis was conducted by separating ratings of plaintiff attorneys from those of the defense attorneys. The data was further analyzed based on three jury outcomes: (1) whether the jury returned a verdict that was entirely in favor of the state/plaintiff on all counts, (2) in favor of the defendant on all counts, or (3) there was a split decision.Survey Results
The results of the survey generally follow a pattern that you might expect—when jurors return a verdict in the attorney’s favor, they tend to view evidence presentation, courtroom demeanor, sincerity, competence, and preparedness of the attorney in a more favorable light. For example, on a scale of 1=Excellent and 5=Very Poor, jurors gave defense attorneys, on average, a competence score of 1.68 when they returned a verdict that was completely in favor of the defendant, 1.95 when they returned a split verdict, and 2.23 when they returned a verdict that was all in favor of the state/plaintiff. This represents a statistically significant 11 percent drop in the jurors’ perceived competence of the defense attorneys when the verdict went against them.
Defense attorneys appear to be at a slight disadvantage when it comes to jurors’ overall perceptions of their performance …
Chart 1 illustrates jurors’ diminished perception of attorneys when the jury’s verdict was entirely in favor of the opposing party. The scores given denote the percentage change in scores for both sides from when the verdict was returned entirely in their favor to when the verdict was returned entirely in favor of the other party.
Defense attorneys appear to be at a slight disadvantage when it comes to jurors’ overall perceptions of their performance and may wish to pay particularly close attention to these results. For example, defense attorneys’ scores for Courtroom Demeanor, Sincerity, and Competence dropped twice as much as those of plaintiff attorneys when the juries returned unfavorable verdicts.
It is also noteworthy that, in these same categories, apart from the percentage differences in scores, the jurors’ numerical ratings for the defense attorneys were significantly lower than those given for similarly situated plaintiff attorneys. When the defendants ended up victorious on all counts, their attorneys were given ratings essentially equal to the ratings plaintiff attorneys received when the plaintiffs lost on all counts. However, the ratings given to the defense attorneys were significantly lower (and the plaintiff attorneys were rated significantly higher) when the plaintiffs were victorious on all counts. That trend is readily apparent in Chart 2.
If the jurors rated similarly situated attorneys equally, as one might expect, the lines on the graphs would appear as a perfect “X.” One would expect the defense attorneys to be rated significantly higher than the plaintiff attorneys when the juries return a verdict in favor of the defendant on all counts and the plaintiff attorneys to be rated significantly higher than the defense attorneys when the juries return a verdict in favor of the plaintiff on all counts. This expected trend is most closely reflected in the ratings given to attorneys in the categories of Evidence Presentation and Preparedness. However, even in the categories where jurors come close to rating both sides equally, the plaintiff attorneys are still not rated as low as the defense attorneys when the verdict is not returned in their favor and they are rated significantly higher than the defense attorneys when the verdict is returned in their favor.
One might hypothesize why there is such a difference in these scores. Do movies like The Devil’s Advocate (where Al Pacino’s Satan-working-as-a-sleazy-defense-attorney character lives by the motto, “Better to reign in Hell than to serve in Heaven”) have a negative impact on juries’ perceptions of defense attorneys’ performances? Do juries project their general perceptions of the attorneys’ clients on the performance of the attorneys? The data collected in this study was not broad enough to shed any light on the answers to these questions. However, the results are so statistically significant that it suggests Defense attorneys should not ignore these facts as they step in front of a jury.Juror Comments
Jurors responding to the survey commented most frequently on their perceptions of the attorneys’ level of preparedness. Over 11 percent of all of the jurors’ comments about the attorneys were some form of the following statements: “Well prepared,” “Appeared to have done his research”; or, “Did not seem prepared,” “Wasn’t on top of things.” The blanket compliments or criticisms about the attorneys’ level of preparedness do not, by themselves, shed much light on how an attorney can improve his or her performance—unless of course the attorney was indeed unprepared. However, insofar as a blanket compliment or criticism was accompanied by some additional performance-related observations, as was often the case, jurors’ comments may be instructive. Jurors responding to the survey most frequently offered the following sorts of performance-related observations:Plaintiff Attorneys:
These comments can serve as a reminder for both sides that those basic presentation skills are important to consider throughout the trial and not just during the opening and closing arguments.More is Better
The jurors’ second most repeated suggestion for both plaintiff attorneys and defense attorneys will not come as a surprise to many litigators. No matter what type of trial or what amount of evidence is presented at trial, jurors are never satisfied with the amount of evidence that they must rely upon to make a decision. Twenty-five percent of all written suggestions for improvement (and 9% of all comments) for the attorneys for both sides included some form of the following statements: “Needed more evidence” or “Call more witnesses.” One might hypothesize why jurors are never happy with the amount of information they receive. Certainly, much has been written about the so-called “CSI Effect” on juries—the debate over whether movie and television crime dramas instill in jurors unreasonable expectations about evidence collection.
While we cannot be certain that the results presented here provide clear support for the CSI Effect, both the data and my conversations with the juries following trial suggest that questions about the amount and type of evidence collected regularly arise while the jurors are deliberating. In order to be effective on behalf of clients, whether in a criminal or civil case, attorneys must be ready and willing to delve into questions that may be on the jurors’ minds about evidence that was not presented—e.g., Why didn’t the police get fingerprints off of the victim’s t-shirt? or, Why wasn’t a specific medical test performed? In my experience as a judge, these information gaps, if not addressed by the attorneys at trial, will be filled by the jurors during their deliberations with whatever information or assumptions they have available to them.
“Make your point and move on—we are reasonably intelligent people and have been paying attention to the testimony.”Conclusion
All of the jurors with whom I have had the pleasure of working deserve commendation. They show up because our legal system is reliant upon them and because they are required to do so. Many do not have any interest in the law and often resent the intrusion on their busy lives. However, when they are called upon, they put forth an extraordinary effort. I can say without reservation that I have been awed and gratified at the universal attitude of jurors who wish to do the right thing and give their time and attention in a sincere effort to follow the instructions of the court and to be fair and judicious. While the jurors’ perceptions and the attorneys’ presentation skills discussed in this article affect how the evidence is presented and received, I think that most practitioners will agree that the vast majority of juries weigh the evidence fairly: They are able to see the forest for the trees and provide both the judicial system and the parties a truly fair and reasonable arbiter. The sagacity of juries is perhaps best captured by a bit of advice from a juror in a criminal trial whose comment is relevant to every litigator: “Make your point and move on—we are reasonably intelligent people and have been paying attention to the testimony.”
The author acknowledges with thanks the assistance of his judicial law clerk, Boe Piras, in preparing this article. Mr. Piras is now practicing law in Cold Spring, Minnesota as an associate in the firm of Willenbring Dahl Wocken & Zimmerman, PLLC.
Featured image: “Defendants with lawyer and jury” from Shutterstock.
What Jurors Think About Attorneys is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
One of my correspondents is a law firm with three offices across the Ukraine.
They posted this open letter this morning:
Dear friends, colleagues and partners,
Herewith we would like to draw your attention to the current political crisis between Ukraine and Russian Federation and the current situation in the Crimea. Being a Ukrainian company we are concerned a lot about the future of our State. We kindly ask you to spare 5 minutes of your time for the issue, which is incredibly important to every person in the world, and read this message to the end.
All the politicians avoid calling this situation a war. However, we understand that at least one war has already started and continues. It is informational war launched by Russia against the Ukrainian nationhood and achievements of the Euromaidan protests.
The previous week Russian forces came to the territory of Ukraine. Today they are using propaganda to prepare their grounds for the war. Below you may find just a few of major Russian myths promoted by Russian media and the relevant disproof:
The power in Ukraine has been seized by extremists, fascists, and US stooges, while the legitimate President has fled for his life. As things stand now, Ukraine has a new democratic government, which is supported by the population and uses its best efforts to eliminate the effects of a deep long-term economic, political and social crisis in Ukraine that has affected the life of every Ukrainian without exception. Yanukovych has fled the country knowing that he will be committed for trial, at least for his unlawful acts in January and February 2014 that have caused dozens of deaths.
Russian media allege that there are people in the East and South of Ukraine, who go out to protest against the “new regime” but face the radically inclined extremists. This triggers confrontation and causes bodily injuries to the protesters. In fact, the Ukrainian government does not send any troops to other regions as there is no need to do so. The regions are governed by legitimate state authorities comprising duly elected local representatives. Riots in Kharkov and other regions were provoked also by “protesters” brought to Ukraine from border regions with the Russian Federation, which is confirmed by numerous proofs.
On March 1, 2014 Russian media reported about Russians in the Crimea who allegedly died as the Crimean Ministry of Internal Affairs was attacked. According to Russian and Ukrainian officials there was no lost. Ukrainian citizens, including the Crimeans, are aware of how complex the situation is. Therefore, they make every effort to prevent a provocation, i.e. killing of foreign nationals, which could lead to an outbreak of hostilities.
Another myth promoted by pro-government media in Russia is a mass exodus of people from Ukraine to Russia because of riots. However, the riots are imitated in major cities to achieve the desired response and then the needed newsbreak. The real life in Ukrainian cities goes on: businesses, schools, hospitals, law enforcement agencies, public administration etc. operate as usual. Ukrainians have no reason to flee from the country and don’t do so.
You may have heard that the Armed Forces of Ukraine in the Crimea support and take the side of the Crimean government, while Crimeans welcome the presence of Russian troops in the Crimea. Despite the really tense situation, the ban on the use of weapons and constant attacks on places of deployment of Ukrainian troops, the Armed Forces of Ukraine remain faithful to their oath and are ready to defend their country. Moreover, the bringing of Russian troops into Ukraine was not universally supported by the Crimeans, as it infringes on their way of life and makes them fear for their future. After all, anyone understands that war is a tragedy.
It is our aim to communicate facts and unbiased information about what is going on in Ukraine to our friends, partners and other contacts around the world. It is obvious that Russian intervention as well as Russian territorial claims to Ukraine constitute gross violations of the basic principles of international law and are considered as interference with the internal affairs of a sovereign state. Thus Russia is violating its commitments on ensuring the integrity of the territory of Ukraine (Budapest Treaty). It is an obvious threat to peace in the world. The system of international treaties aims to improve peace in the world by creating the rules of coexisting that are binding on all the states.
The information field artificially created by Russia’s top leadership is a tool the Russian political elite are using skillfully to achieve their goals. But is this political game worth the losses the two related people may suffer?
Recent events have shown that no country in the world has come up with the support of Russian aggression in the Crimea. On the contrary, yesterday’s UN Security Council meeting showed that the leading countries of the world, such as the United States, France, Britain, Australia, China, and all the EU Member States stands for the territorial integrity and sovereignty of Ukraine, strongly condemn Russia’s actions towards Ukraine and declare the application of appropriate sanctions to Russia.
Despite the alarming situation in the Crimea, life and work in the rest of Ukraine take their course. Everything is functioning normally, there is no panic. Our three offices also operate as usual.
Reasonable people should be aware of the fact that the situation in Ukraine is the beginning of a global military conflict of third world war scale with unimaginable consequences for the world.
Thank you for taking your time to read this message. We hope that common sense and the power of good will enable us to stand together against the political ambitions of some personalities to establish peace and tranquility in our beloved country.
We kindly ask you to support us, to support Ukraine today and to spread this information among your contacts if possible.
Over at Associate’s Mind, Keith Lee crunched the numbers and realized that the decline in LSAT scores signifies just what you think it would signify: fewer top students are applying to law school. This is actually the continuation of a trend Lee identified last year, and it is a clear downward trend.
Maybe smart college graduates don’t want FutureLaw jobs. Or maybe they have done the cost-benefit analysis and realized that law school is a pretty terrible investment (despite optimistic reports of a law-job surplus within the next few years). Now that they are too smart for law school, they are probably just going into business and finance, instead, so they will help drive our economy off a cliff again in 10–15 years.
Whatever the reason, this is both good and bad. On the one hand, it is good because legal industry seems desperately in need of a “market adjustment” (fewer lawyers). On the other hand, it is bad because we always need smart, talented lawyers.
Nation’s Overachievers Losing Interest in Law School is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
While many might have given up on AI in law due to its special challenges, interest is stirring nearby. IBM’s Watson ingestion of millions of journal pages, medical evidence and patient records, means that it is allegedly better at diagnosing cancer than human doctors. Meanwhile Google has been buying up the world’s top machine learning experts and their companies, with the latest being UK-based DeepThink. It is in part explained by the fact that Google’s engineering director Ray Kurzweil is a relentless inventor and an artificial intelligence pioneer. While Google helps make us smarter now, Kurzweil believes that AI will more directly supplement our mental capacities. It could be the guardian angel to the infirm, and speed up and extend the expert.
The recent surge in interest in AI has come from 3 things:
The goal of an artificial intelligence, or expert system, is to make the knowledge of an expert available when the actual expert is not. As it is usually very difficult for experts to define the steps they take to solve a problem, it is almost impossible to use standard programming techniques to build an expert system.
Modern expert systems are split into two parts the knowledge base and the inference engine. The knowledge base consist of human knowledge, painstakingly put into a form which can be manipulated by the other part of the program. Ideally, the inference engine is completely separate from the knowledge base, and can thus be used on different knowledge bases (such an engine is “an expert systems shell”). The inference engine is a program which follows a rigidly prescribed sequence of steps, which lay out how the knowledge base is to be manipulated.
The most popular form for the knowledge base is the production rule, usually of the form: IF (some situation) THEN (some action). This approach is based upon the psychological research of the 1950′s and 1960′s.
FINDER is an expert system which gives legal advice on problems involving the right to possession of unclaimed goods of the finder of those goods. Expert systems can be built on different levels. FINDER requires the user to make decisions based on legal precedent. For instance, a user may have to decide whether a certain party was the “occupier” of premises. Later versions may give the system the ability to decide the question. The use of legal expert systems is likely to go through 5 phases of use:
In considering the last phase, one should consider that because of the costs involved, for many the choice may be between machine justice and no justice at all. Particularly when systems are used by non-professionals the advice given by expert systems is likely to be accepted uncritically.
One thing I need to mention, and I wonder if otherwise anyone would have noticed my time travel: apart from the first paragraph the above was written in 1986. It was an abstract I wrote of an article called “Will justice fall to bits?” written by Dr Alan Tyree from Current Affairs Bulletin from March 1986 at pages13-18. The author is a respected researcher into the legal application of Artificial Intelligence techniques.
One day the professional standard of care may include consulting an expert system. Expert systems should be used as a starting point to help the lawyer analyse a case or make a decision. Not all a lawyer’s expertise can be embodied in the systems, nor is every area of law suited to expert systems.
One of the most advanced expert systems created to address a legal problem is called SAL which stands for System for Asbestos Litigation. It evaluates plaintiff’s claims for asbestos exposure. The system uses the facts of a particular case, along with the expertise and problem-solving techniques extracted from attorneys and claims adjusters, to produce a dollar value for the case. Conceivably, a lawyer who settles an asbestos case for a value below that recommended by SAL could be sued for malpractice.
Oops, there I go again, the above 2 paragraphs I wrote in 1987 as an abstract of an article by Nancy Blodgett from the ABA Journal dated 1 January 1987 at p.70. The title was “Artificial intelligence comes of age” which was probably the only part one could take issue with.
Other comments by Nancy included:
I suspect that in the age of NewLaw, those comments will now be taken more seriously than they were.
Despite the publicity at the time, the enthusiasm by pioneers, and numerous tools, the blame cannot lie directly at the feet of lawyers and clients for the lack of support.
In the The Modern Law Review of March 1986 at pages 168-194, a bloke by the name of Susskind highlighted some of the many problems which have contributed to the far fewer positive results than in comparable efforts in other disciplines:
The problem with rule-based learning was the effort required not only in development but the less obvious need for maintenance – all expert-intensive. The breakthrough has been the bottom up “machine learning”, as opposed to top-down “expert teaching” approach. It took us a while to achieve it, but once the machines get it, there will be no stopping them, maybe literally. Think of the exponential potential of “life long learning” for machines.
All the recent talk of disruption in the business of law is nothing compared to what lies not far ahead as the pace of change accelerates dramatically. As Susskind often points out, the only uncertainty will be time’s winged chariot, no doubt driven, by Google.
I’ve noticed that a lot of lawyers are suffering from information overload in all the advice about what to focus on when building a practice. Clarifying basic concepts is a good place to start. And truthfully, it’s also a relief to simplify some of the jargon.
Here’s a guide to the four concepts that most lawyers and firms need to consider.
Who you are: your identity and brand
The attributes that describe who you are and what you have to offer are grounded in the concepts of identity and brand. Lawyers often feel anxious about marketing because so much of their personal and professional identity is wrapped up in their brand.
Identity underpins all law firm marketing. It is what is central and distinctive about you, your practice or the profession.
Identity is tied to your firm culture as well as the nuts and bolts of what you do. In a legal organization, it could refer to the underlying values that influence the type of people you hire or the type of clients you prefer to work with.
Identity can change over time, though.
After law school, you might describe yourself as a lawyer. But you’ll eventually specialize in a practice area or crave a different work environment and adjust the description. Or, on an organizational level, a firm might develop into a very different place than it once was.
I’ve encountered many different definitions of “brand” (including “hogwash”, from one of my more cynical clients!). When working with lawyers, I prefer to describe brand as the ways in which you best represent “who you are” to everyone you interact with, inside and outside your firm.
In other words, your brand is the sum total of how you distinguish yourself or your organization.
Strong brands bind groups of people together, spurring loyalty and a feeling of belonging. For example, you might have an “employer brand” that is a subset of your overall firm brand. But if your communications messages for each are vastly different, you’ll run the risk of incoherence.
What others perceive about you: your image and reputation
Lawyers and law firms invest a lot of time and money in what they communicate: identity and brand. The return on this investment is measured by how others perceive the individual or organization: image and reputation.
When others think of you or your organization (or even the legal profession), they often have a preconceived notion of what you are like. This is your “image”.
If you’ve ever had to explain to a client that his case is not going to unfold like an episode of Law & Order, you know what I’m referring to.
People evaluate identity and brand, based on their own experience and expectations, not what you tell them to believe. This is why it can be so difficult to shape an image – as much as you try to influence it, it’s still subject to interpretation.
Your reputation is the overall appreciation, trust and esteem that others feel for you. These are intangible, emotional perceptions that are difficult to put into words.
If people are asked to describe your reputation, what will they consider? They’ll think about personal experiences (identity), evidence of your activities (branding, communications and behaviour) and what others have to say about you (image).
A reputation is like a savings account: it builds over time. All the experiences others have with you, good or bad, factor as credits or debits in your favour. The trick is to build up as much credit as possible so that you can draw on the account when the need arises. Any lawyer whose firm has experienced a crisis will understand this analogy.
Image and reputation are the external manifestation of your identity and brand. If there is alignment – if you’re attracting the ideal recruits and clients or being asked to join the right committees– you’re probably doing things right.
From my experience, the best way for lawyers to gauge their reputation is simply to make a habit of: a) accurately representing who they are; b) objectively finding out what people think of them, and; c) tying the two activities together to put their best foot forward in their marketing efforts.
What phone, that is.
At one time a Blackberry was the de facto standard for lawyers. (For the record, I have used various types of portable device over the years, but never a Blackberry. I’m now using an Android phone. I have an iPad as well, which you couldn’t pry away from me, but when it dies I won’t replace it with another iPad.) Lawyers in our firm who use a Blackberry are dwindling in number. Our IT department tells me that Android phones are becoming more popular. Even some iPhone users have switched to Android.
For some reason, Windows phones have not been popular. They are a good product, and work very well with a Windows based workplace, but so far just have not been able to gain a foothold either at our firm, or in the marketplace in general.
If the current gaps in access to justice across Canada are to be filled, we will need to see a greater degree of collaboration between sectors and professions. As I wrote here, instead of legal services and supports provided in “justice silos,” such supports need to be integrated or provided in concert with other social services.
The National Action Committee on Access to Justice in Civil and Family Matters recognized the need for greater cross-sectoral collaboration. In their October 2013 report, Access to Civil and Family Justice: A Roadmap for Change (the “Roadmap”), they emphasized that:
“We can and must improve collaboration, coordination and service integration with other social service sectors and providers as well. We are long past the time for reinventing wheels. We can no longer afford to ignore what is going on in different regions and sectors and miss opportunities for sharing and collaboration. Openness, proactivity, collaboration and coordination must animate how we approach improving access to justice at all levels and across all sectors of the system.”
The Roadmap Report notes that taking a coordinated approach meets “complex and often clustered everyday legal needs.”
One way to achieve greater collaboration is through co-location of services. Co-locating community-based services provides opportunities for enhanced communication between service providers and creates a space in which families and individuals are able to efficiently attend to a number of their concerns, from getting a flu vaccine to seeking advice about debt repayment to attending parenting classes.
Including a range of early resolution legal services within a community-based service hub enhances access to all the services provided. Creating more opportunities for individuals to access legal information and resources may also serve to prevent minor legal problems from becoming significant issues.
Integrating robust early resolution legal supports with other community services could better meet the needs of individuals or families dealing with a constellation of issues. Just as a person with suffering an illness may need to address related legal issues, a person with a legal problem may have other social or health issues to deal with arising from the legal problem.
This service model is already being used by Toronto’s Unison Health and Community Services, in their Keele-Rogers location. That Centre provides a broad range of supports for individuals that include health, social benefits and housing, as well as a Legal Aid Ontario community legal clinic.
As illustrated by the Unison Health and Community Services model, social service sectors are increasingly taking this approach. Across the country, frontline social service providers are increasingly delivering services from community service hubs where individuals have access to primary healthcare, housing, child welfare, addictions services, early childhood education, employment training and more. Adding legal supports to this mix only makes sense.
As I’ve detailed in my book The Off Switch, Microsoft Outlook provides modern ways not just to communicate but to interrupt our work flow and make life harder.
For example, the new-mail sounds and desktop alerts (the blue “toasts” or translucent ghosties that pop up on a new message) may do more harm than good because they interrupt your thought processes.
So turn them off. (Go to Mail Options, which is under Options near the bottom of the File menu.)
People say to me, “But I need to be responsive to clients.”
Yes, you do, but interrupting yourself all the time so that you’re inefficient on their behalf is false responsiveness. It’s up to you to manage your clients in this regard, understanding their true needs in terms of responsiveness. (I discuss methods to do this in my courses and seminars that are too complex and interactive to cover easily in this forum.)
If you look at your stream of mail, you’ll discover that only certain items from a limited number of people need your immediate attention – i.e., right now, rather than 30-60 minutes from now. Sometimes these mails may come from a key client, sometimes from your boss, perhaps from your spouse. If you have turned off desktop alerts, how, then, do you recognize these truly urgent missives without eyeballing your email every two minutes?
Here’s what I do: I set up an Outlook rule to pop up one of those blue thingies when I get mail from specific people. That sounds difficult, but in fact it’s quite easy. I’ll walk through the steps below.
By the way, you’re not limited to specific people. If you’re managing a project or file that’s in trouble, for example, you could pop up mail with the project name in the subject line.
For the purpose of my example, let’s say I want to create an alert on mail from the CEO of Lexician. (That’s me. You think I’m going to expose anyone else’s email address on the Internet?)
The easiest way to start is to find a mail from that person and right-click on it. Move down the right-click menu to “Rules,” then over to “Create Rule…” and click on that. (The ellipsis, or three dots, after a menu item means that you’ll go to one or more additional screens when you click it.)
Note in the screen-shot that I’ve shortened the right-click menu. “Rules” is the tenth item on the menu on Outlook 2010. The menu position may vary in Outlook 2007, Outlook 2013, and Outlook/Office 365, but the steps are the same.
Now I get these options:
If you want to keep it simple, you can check three boxes and be done:
Click OK, and you’ll get a confirmation message along with the option to run it on mail already in your inbox.
What’s a New Mail Alert? It’s a dialog box that interrupts you and demands action.
Now I can open the item and deal with it, or close the dialog box without responding.
Or I can decide that I want to be a bit less interruptive about it – and be more discerning in my criteria as well.
So let’s go back to creating the rule, but this time, instead of clicking on the checkboxes, click Advanced Options at the lower right:
Now I get a whole bunch of options, starting with multiple ways to identify the mails I want to receive alerts on:
The two options I usually select are the sender’s name and “where my name is in the To box.” That second condition is the secret sauce. It eliminates mails on which I’m only copied (or, worse, blind-copied – and I hope everyone working in a law office understands never to blind-copy anyone on an email!). Thus, if a key client sends mail to me and the managing partner, I’ll still get the alert. The simple setting, “sent to me only,” precludes this option.
Now click Next to pop up a list of possible options. Scroll down, and tucked away at the bottom is the checkbox, “display a Desktop Alert.” That’s the one we want.
Click Next to get a list or exceptions. For example, well down the exceptions list is “except if it is a meeting invitation or update.” Meeting requests don’t have quite the same can’t-wait-an-hour urgency as most client questions.
Click Next again and you’ll get a box that allows you to name the rule. The default name for the rule is “where my name is in the To box, which probably isn’t very useful. So name it “mail from Steve” or some such, and then click Finish.
Now, whenever this person sends mail directly to me, I’ll get a blue desktop alert. That’s all there is to it.
Do this, and you’ll get more done. Interruptions take a huge toll on productivity, so find opportunities to limit them. It doesn’t matter if they’re from people in the office, from incoming mail, or from a desire to check the weather. You can’t eliminate them without turning into a recluse, but you can cut down on the workplace noise they create.
If you want to modify the rule, or get rid of it when the project is over, you’ll find a Rules item on the Outlook Home ribbon menu. One of the items in that menu is “Manage Rules & Alerts…” which allows you to modify, delete, or even temporarily turn off any of your rules.
Here’s one more option. Go back to Step 1 of the Rules Wizard, “Which condition(s) do you want to check?” (It’s Figure 6, above). Note the second checkboxin the list: “with Some Text in the subject.” If, let’s say, I want to alert on mail related to a particular project, I could check that box. When I do, it will be added to the lower window. Now in that lower window I can click on the underlined-and-blue Some Text. I’ll get a dialog box with the option to remove this particular text and replace it, say with the name of a file or case or project. In this case, I might not want to check the “from” option in the box above.
Outlook rules aren’t at all scary; they just seem complicated the first time because of all the options. (Okay, the Some Text option is a bit more complicated, but if you walk through it you’ll see it’s easier to do than to describe.) Follow the steps I’ve outlined, and you’ll take full control of them. And when other people interrupt your day simply to ask, How do you manage mail so well, point ‘em to this article!
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:
 This court found that the respondents had failed to conduct adequate and proper tests prior to claiming that Chatr Wireless Inc. (“Chatr Wireless”) dropped fewer calls than Wind Mobile in Calgary and Edmonton and Public Mobile in Toronto and Montréal.
 The “fewer dropped calls” claim appeared on Chatr Wireless’ website, in press releases, in media statements, in social media and in the fine print on Chatr handset packaging.
 Failure to conduct an adequate and proper test prior to making a performance claim to the public is defined as reviewable conduct in section 74.01(1)(b) of the Competition Act, R.S.C. 1985, c. C-34 (the “Act”). Section 74.01 is located in Part VII.1 which is entitled Deceptive Marketing Practices.
 This was a warrantless search. For a search to be authorized as an incident to arrest, there must first be reasonable and probable grounds to arrest. The burden is on the Crown to establish those reasonable and probable grounds. There were none. There was not even a basis to detain the car or the individuals in it. The police actions breached the Charter rights of the three accused under both s. 8 (unreasonable search and seizure) and s. 9 (arbitrary detention).
 Reasonable and probable grounds to arrest have a subjective and objective component. The police officer making (or authorizing) the arrest must believe he has reasonable and probable grounds to arrest. In addition, it must be established that a reasonable person standing in the same circumstances as the arresting officer, would believe there were reasonable and probable grounds to arrest.
 This motion was argued before the Supreme Court of Canada released its decision in Hryniak v. Mauldin et al. It was argued on the basis of the “full appreciation” test stated by the Court of Appeal in Combined Air Mechanical v. Flesch. On that test, I was satisfied that summary judgment ought to be granted dismissing Sweda’s claims against Burnbrae. Hryniak changes the law of summary judgment, but does not change the result of this motion.
 Hryniak provides for a more proportional approach to motions for summary judgment. Precisely how this standard may develop will be seen as the law develops on a case by case basis. Sweda’s claim is large and complex. At its heart is an allegation that the two largest players in a tightly held industry conspired with each other, and with others, to drive Sweda, a smaller competitor, from the marketplace. The nominal claim for damages is large. The conduct alleged is very serious. This is not a case where the standard of proof on a motion for summary judgment would be relaxed in the name of proportionality. This is not to say that there should be no restraint on procedural complexity or cost: Sweda’s assertion that it would call nearly 100 witnesses at trial is ample basis for noting that even large-scale, complex and important litigation must be conducted with a sense of proportion and practicality. However, while the language of “full appreciation” may no longer govern the test for summary judgment, in order to achieve a “fair and just adjudication” of Sweda’s claims, I have proceeded on the basis that I should dismiss them only if I am satisfied that Sweda’s claims against Burnbrae cannot succeed at trial.
The most-consulted French-language decision was St-Cloud c. R. 2013 QCCS 5021
 La Cour est saisie d’une requête en révision de cautionnement de l’appelant, Monsieur Jeffrey St-Cloud.
 J’ai eu l’avantage de lire les décisions de Monsieur le juge Lavergne et Monsieur le juge Legault ainsi que d’entendre les représentations des procureurs. J’ai eu également l’opportunité de visionner l’enregistrement de deux caméras dans l’autobus qui ont reproduit de façon limpide plusieurs étapes de ce qui est survenu.
 Comme je l’ai dit en cours de route, ce que j’ai visionné n’est certainement pas joli et ne pourrait pas être sanctionné en aucun sens dans la société dans laquelle nous vivons. Mais je ne suis pas ici afin de décider de la question de la culpabilité de qui que ce soit ou de son degré de responsabilité dans cette affaire.
 Mon mandat est limité à déterminer s’il y a erreur révisable dans le refus de cautionnement dans le cas de Monsieur St-Cloud.
* 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.
The event Website is at: http://ecitizen.mit.edu/LegalScienceSalon
Information about the event is also being posted to the eCitizen blog.
Here is the program as it stands as of 4 March 2013, according to the eventbrite page:
* Host: Dazza Greenwood, MIT Human Dynamics Group
* Joshua Lenon, Clio: Key Note Address: What Happens When Robots Join Law Firms?
* Jonathan Askin, Professor, Brooklyn Law School; Founder and Director of the Brooklyn Law Incubator and Policy Clinic,
* Seamus Kraft, Executive Director, OpenGovFoundation.org
Topic: StateDecoded and Putting the Law Online
* Evan Carroll, Founder, The Digital Beyond; Author of Your Digital Afterlife
Topic: Managing Digital Assets and Estates
* Ray Campbell, Attorney/Consultant on Data and Technology Matters
Topic: The Legal Science of Mapping Communication Flows in State Government
Here is the abstract:
The Fourth Amendment [to the U.S. Constitution] requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.
But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics can forecast who will be the likely troublemakers in a community? The rise of big data technology offers a challenge to the traditional paradigm of Fourth Amendment law. Now, with little effort, most unknown suspects can be “known,” as a web of information can identify and provide extensive personal data about a suspect independent of the officer’s observations. New data sources including law enforcement databases, third party information sources (phone records, rental records, GPS data, video surveillance data, etc.), and predictive analytics, combined with biometric or facial recognition software, means that information about that suspect can be known in a few data searches. At some point, the data (independent of the observation) may become sufficiently individualized and predictive to justify the seizure of a suspect. The question this article poses is can a Fourth Amendment stop be predicated on the aggregation of specific, individualized, but otherwise non-criminal factors?
This article traces the consequences in the shift from a “small data” reasonable suspicion doctrine, focused on specific, observable actions of unknown suspects, to the “big data” reality of an interconnected information rich world of known suspects. With more targeted information, police officers on the streets will have a stronger predictive sense about the likelihood that they are observing criminal activity. This evolution, however, only hints at the promise of big data policing. The next phase will be using existing predictive analytics to target suspects without any actual observation of criminal activity, merely relying on the accumulation of various data points. Unknown suspects will become known, not because of who they are but because of the data they left behind. Using pattern matching techniques through networked databases, individuals will be targeted out of the vast flow of informational data. This new reality subverts reasonable suspicion from being a source of protection against unreasonable stops, to a means of justifying those same stops.
In law school, grades are often determined by a single test: the final exam. Getting good grades in law school therefore depends on just a handful of tests at the end of each semester.
Obviously, it makes sense to put your best efforts into these exams.
Randall Ryder and Nena Lenz advocate taking a deliberate approach to final exams, and in a new Lawyerist eBook, Law School Exams: A Lawyerist Survival Guide, they walk you through their process for preparing for final exams and taking open- and closed-book exams, take-home exams, and even final papers.
Here is a preview of the table of contents:
Law School Exams: A Lawyerist Survival Guide is available for Kindle (both the device and the app) right now on Amazon for $9.99.
Law School Exams: A Lawyerist Survival Guide is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
The Apollo Education Group, the parent company of the University of Phoenix, is starting a website to help people find courses that teach skills they need to land specific jobs in the technology industry. Call it a course catalog for nontraditional courses, most of which have no connection to colleges’ degree programs.
The website, called Balloon and announced on Tuesday, will be pitched to adult learners who want to pick up skills that have been flagged by technology companies as requirements for certain job openings. The idea is to make recruiting more efficient for companies, while giving learners a better idea of what skills employers in the tech industry are looking for apart from the general ones indicated by a traditional degree, said Robert W. Wrubel, chief innovation officer at Apollo.
Here is how Balloon will work, according to Mr. Wrubel: Users will be able to browse actual job listings posted by companies such as Adobe and Amazon, see the skills those companies are requiring of candidates, and then search a database of 14,000 courses for the ones that teach those skills. For example, if you start typing “cloud computing” into Balloon’s search engine, the auto-complete function will show a number of listed job titles related to cloud computing. If you select “cloud security analyst,” Balloon will display three required skills, 18 relevant courses, and 27,729 job listings. It will also tell you that cloud security analysts typically make $53,000 to $79,000 a year.
The courses in Balloon’s database are from nonuniversity providers, including Coursera, Udacity, and Udemy. Eventually, said Mr. Wrubel, the site could add career-focused courses from traditional colleges, including courses offered by the University of Phoenix. Balloon will probably not weigh in on course quality, he said, but it might develop a Yelp-like feature with which users and employers could review and rate the courses.
Mr. Wrubel, whose own résumé includes executive stints at an advertising-distribution company and as co-founder of a chain of yoga studios, talked only in vague terms about Balloon’s business model. There are “dollars to be made” in arranging happier marriages between companies and job candidates, he said. Balloon might eventually sell recruiting services to companies.
Perhaps not coincidentally, Apollo’s announcement came on the heels of a report from Gallup suggesting that employers value a “candidate’s applied skills in the field” far more highly than where an applicant went to college or what his or her major was. That study was the latest in a series of recent reports, including one published last year by The Chronicle, that describe a mismatch between the training colleges provide and the skills employers want in job candidates.
It’s not often that I comment on a U.S. legal decision (mostly because I’m not an American attorney), but a recent decision from the US National Labour Relations Board (NLRB or the Board) is particularly interesting from an employment and labour law perspective and because it also highlights a significant area where US and Canada labour law differs.
In the decision Design Technology Group, LLC, 359 NLRB No 96, the Board ordered the employer to reinstate a number of employees who were terminated for critcizing their employer on a semi-public Facebook page. In the US, most employment is “at will” – outside of contractual language or the goodwill of the employer, there’s no entitlement to notice of termination (or pay in lieu), there is also no right to reinstatement if you’re dismissed without cause – as is the case for federally regulated employees in Canada and in Quebec and Nova Scotia for most classes of long-service employees. In general, reinstatement in the U.S. only happen for labour reasons or due to a discrimination complaint being founded by the U.S. Equal Employment Opportunity Commission
Also unlike in Canada, in the U.S., labour (access to unionization) is federally regulated and s.7 of the National Labour Relations Act protects the rights of employees to discuss and complain about their working conditions in the view that this is a step to potential unionization. You need not actually be talking about unionization. This has been interpreted to include comments made online about working conditions that are disparaging to the employer. For those reasons, the Board (and some may argue that it’s reaching) held that these employees had to be reinstated.
In all provinces in Canada, the right to unionization is protected and employee can’t be fired for taking steps to unionize. However, negative comments about working conditions unrelated to unionization have not been protected in Canada under our labour laws (to my knowledge). Accordingly, while it may not constitue cause, employers are free to terminate employees who make those kinds of comments without fear of reinstatement in most provinces.
In this area, US labour laws are more “progressive” (if you lean that way) and protective than Canadian laws. I think that a real link between the comments and an effort to unionize should be required to be protected. In my opinion, complaining about working conditions publicly and outside of a unionization context breach the common (and civil) law duty of loyaly that employees owe to their employees and should be grounds for discipline, up to an including termination depending on the severity.
Do any of you feel there’s a need for Canada to follow the U.S. on this issue?
I love my iPad mini. I have been using it for just over one year. It has proved to be tremendously helpful in my civil litigation practice.
There are hundreds of similar pieces about “ipad apps for lawyers.” This is a simple setup that works for me.
I use the PDF Converter app to convert Word documents into PDFs so that I can annotate them using the PDF expert app.
Using the PDF expert app, I can mark up any PDF document. I can highlight it, put text annotations, arrows, big X’s, anything. I can send annotated PDFs to others.
If my opponent sends me a notice of motion, it goes into PDF expert. I mark it up and keep a copy. I store transcripts. I markup my opponent’s factum and mine. I can store and markup an entire book of authorities (CanLII is especially helpful for this). And it all fits in my jacket pocket. Give it a try!
PHP 5.5 (the latest stable build as of this writing) has made major progress from earlier versions. Recent PHP releases contain powerful new features and helpful developer tools, such as a built-in web server, generators for simpler iteration, and namespaces. With PHP 5.4, traits were introduced (a la Scala or Perl) to allow code reuse in single inheritance languages, as well as closures, which allow you to code PHP in a functional style. Other important features include the built-in FastCGI process manager and phpdbg debugger, and a new password hashing API that makes it easy to hash and securely manage passwords in PHP.
Article highlights some of the major improvements to PHP as the language matures. Always good to know that my favorite language keeps getting better.
Google Alerts are emails generated by Google when it finds new results. Alerts have mentioned on Slaw including an interesting article by Omar which offered an alternative service that uses a desktop or mobile device download – Mention.
Despite reports of concern about the continuing functionality of Google Alerts, I have continued to use the service for select monitoring with success. Google Alerts continues to be generally reliable and it was recently used by a team member and I to watch for notice of a newspaper article. There is an interesting story about our watches that may be relevant to those still hanging on to their Google Alerts.
My alert was set up with “all results” as the volume, “as-it-happens” as the frequency and was a search in the “News”.
My colleague’s alert was set up with “best results” as the volume, “as-it-happens” as the frequency and was a general search rather than being a search in Google News.
My email came through at 11:10 PM last night, my colleague’s was received just before 4 AM this morning. Both results were timely and successfully delivered the relevant, identical article.
Where am I going with this? To one conclusion – Google Alerts is still a functioning, no fee service that can be used to monitor the web – at least for now.
So, who else is still using it?