Online Dispute Resolution at UNCITRAL – Some Creativity Needed

slaw - Thu, 09/11/2014 - 03:08

The UNCITRAL Working Group on Online Dispute Resolution (ODR) meets next month in Vienna to continue discussion of model rules for international ODR. Here are the working documents for the meeting, and past meetings. .

The perspective of the project since its inception in 2010 has been to find a way to resolve high-volume, low-value disputes – not necessarily just consumer disputes, but many would be of this kind.

One of the problems has been to figure out a way to get both buyers and sellers into the ODR system, whatever it is (and there might be many such systems, with basic or generic rules.) Can they agree before the transaction, in general terms, to resolve any future disputes through ODR? If so, then the would-be purchasers may have some confidence that they will have some recourse if things go badly, and the merchants would want to participate to show purchasers they were trustworthy.

However, many legal systems, notably most of those in the European Union, plus Quebec, and some other places, do not recognize as valid an agreement to arbitrate made before an actual dispute arises. (Ontario has such a rule for family arbitrations.) The consumer – according to this principle – must know what the dispute is and his or her options for dealing with it, including by litigation, before he or she can be bound to arbitrate the dispute.

After much debate about the reality in a low-value international transaction of a consumer ever being able to litigate a dispute, the Working Group has divided the project into two tracks. One of them is designed for the no-pre-dispute-arbitration places, and a sequence of alternative dispute resolution procedures would culminate with further discussions between parties. The rules for the other track, a ‘real arbitration’ option, have not been developed yet.

One argument for the ‘real arbitration’ track is that awards arising from it could be enforced internationally under the New York Convention on foreign arbitral awards. However, is the Convention procedure really usable for an award from a ‘low value’ dispute? Is there much hope that the Convention would be used? Is it worth trying to design a system that assumes it will be?

Some people have expressed a concern that the ‘real arbitration’ advocates want arbitration so as to avoid consumer class actions under their domestic civil procedure. However, we are talking about international transactions here, and international class actions are not common, if they exist much at all. (There have been some across the Canada/US border.) Further, the UNCITRAL Rules, whatever legal form they ultimately take, will probably yield to mandatory rules of the member states. If the mandatory rules would prevent arbitration agreements from standing in the way of class actions, then the rules would be preserved for that purpose.

Perhaps the enforcement angle is the most important: if the Convention route is too expensive for most of the disputes using the new system, how does one get the award enforced? Some kind of closed-system sanction might work best. But would merchants want to join such a system if it were just going to be a talk shop in many countries? If consumers only stayed in the system for disputes they thought they would win, where is the attraction for merchants?

Some creativity is needed

* perhaps to find an enforcement mechanism that will work in a mediation-based process or a low-value dispute;
* perhaps to attract merchants to a system that in some countries will not produce certain results;
* perhaps to find a way to persuade the no-predispute-arbitation-agreement advocates that international litigation is not a credible alternative for resolving low-value cross-border disputes, so consumers give up little of value in signing on to a more rigorous dispute-resolution process that ends in arbitration.

Is the absence of a pre-dispute agreement to arbitrate a problem for you, or ‘normal’? How do you think the results of the ODR process should be enforced? Would you advise your merchant clients to participate in the system that UNCITRAL is creating?

How else should the ODR working group move forward?

Categories: Teknoids Blogs

Hashmi et al.: Modeling Obligations with the Event-Calculus

Legal Informatics Blog - Thu, 09/11/2014 - 03:04

Mustafa Hashmi, Guido Governatori, and Moe Thandar Wynn presented a paper entitled Modeling Obligations with the Event-Calculus, at RuleML 2014: International Web Rule Symposium, held 18-20 August 2014 in Prague.

Slides of the presentation are available at: http://www.nicta.com.au/pub?pslides=8116

Here is the abstract of the paper:

Time plays an important role in norms. In this paper we start from our previously proposed classification of obligations, and point out some shortcomings of Event Calculus (EC) to represent obligations. We propose an extension of EC that avoids such shortcomings and we show how to use it to model the various types of obligations.


Filed under: Applications, Articles and papers, Conference papers Tagged: Classifying legal obligations, Event calculus, Guido Governatori, International Web Rule Symposium, Legal knowledge representation, Modeling legal obligations, Moe Thandar Wynn, Mustafa Hashmi, RuleML, RuleML 2014
Categories: Teknoids Blogs

Seven Ways Your Law Firm Can Learn from a Tech Startup [Sponsored]

The Lawyerist - Wed, 09/10/2014 - 17:44

At first glance your law practice might not seem to have much in common with Silicon Valley companies like Facebook and Google. However, in today’s rapidly evolving world, the ability to innovate and adapt is crucial for any business…including large legal firms and upstart solo practitioners. Here are seven lessons you can learn from successful tech startups in order to grow your business and improve your practice’s bottom line:

1. Understand the key metrics shaping your business

As clients increasingly push for lower legal costs, it’s all the more critical to understand how metrics like realization rates (the difference between recorded time and the percentage of that time paid by clients) are impacting your short- and long-term profitability. According to Georgetown Law’s 2014 Report on the State of the Legal Market, the average overall realization rate in 2013 was 83.49%, down 8% from 2007, and well below the ideal target of 95%.

You should track metrics like billing, collection, and overall realization rates in order to see how you are trending over time, as well as compare your data with other lawyers in your firm or even with other firms. You can find more details about how to measure and apply metrics to your business in the paper “Realization Rates in Law Firms.”

2. Differentiate: Don’t commoditize

To survive in the era of LegalZoom and RocketLawyer, you need to identify market opportunities beyond commoditized services. Think about the unique value you can bring to your clients by positioning yourself as a trusted advisor, instead of a billing agent.

If you do not bring added value to the table by building relationships and guiding your clients, you risk losing business to someone who does or being undercut by the low prices of an online service. Richard Susskind’s book, Tomorrow’s Lawyers, is a must-read for anyone interested in going beyond the commoditized offerings of other firms and legal services.

3. Focus on the customer experience

Tech companies like Apple understand the difference between delivering an experience and selling a product. Lawyers need to think about the overall customer experience from intake to billing. According to Matt Dixon, the author of “The End of Solution Sales”, in an interview with the Harvard Business Review, numbers show that a customer experience with a trusted advisor leads to more repeat business, referrals, and revenue.

4. Build out a team

Too many lawyers go the “pure solo” route, handling anything from client intake to billing to answering the phone themselves. However, successful startup founders have learned that no one person can build a successful business. Having the right team in place can yield massive productivity gains.

Audit your time on a daily basis and ask yourself: Is each thing I’m doing the best use of my time? What tasks can be delegated?

5. Culture matters

We have all heard the stories of startups going to extreme lengths to shape company culture and keep employees happy: onsite massage therapists and yoga classes, along with free dry cleaning, hair cuts and oil changes. However, culture is more than just the perks; it’s what your company stands for, your missions and beliefs. When employees embrace a firm’s culture, they put their best work forward. A strong company culture increases employee loyalty, encourages teamwork, improves productivity, and leads to better customer relations.

6. Leverage technology

Clients today don’t have any patience for firms that insist on dragging out work by using outdated tools. They want real-time updates via client portals, after-hours services, and instant delivery of completed work.

The right technology platform, whether it’s for billing or document automation, can be a strategic partner to help you scale and operate more efficiently. Let technology handle the busy work, so you can focus your time on your client’s needs that require individual attention and are worthy of your law degree.

7. Think about the big picture

It is easy to get bogged down in the day-to-day grind…the next hearing, brief, or meeting. However, without high-level thinking, your firm can stagnate. Reflect on where your firm is now and where you want it to be. Point the ship in that direction and lean on your technology, team, and company culture to take you there. Don’t be afraid to think big and experiment.

Attendees at the upcoming Clio Cloud Conference can learn more about the future of law and the rapidly evolving technology landscape, including a keynote presentation from Richard Susskind, author of “Tomorrow’s Lawyers.” Save $100 when you register with this exclusive discount code for Lawyerist readers: Lawyerist-CCC14.

Categories: Teknoids Blogs

My Twitter Digest for 09/09/2014

<CONTENT /> v.5 - Wed, 09/10/2014 - 14:30
Categories: Teknoids Blogs

Running your own Git server with GitlabHQ on Ubuntu 14.04

<CONTENT /> v.5 - Wed, 09/10/2014 - 13:02

This document describes how to install and configure Git and GitHub. These are great tools to manage and administer a whole host of Git repositories and the associated permissions. So, these remain true blessings for users writing open source software, however, when writing a closed source software may not be comfortable in trusting the code to a third party server. To gain the much-needed flexibility and control on stuff like Github/BitBucket without hosting the git repositories on servers that lie external to the control of users, GitLab remains a Godsend!
GitLab is a wonder tool that offers a simple and user-friendly yet potent web-based interface to the Git repositories on your server, viz., GitHub. Users are free to host it on their own cloud server, control access in a custom-built manner, and the only factor limiting the repo size is the inbuilt storage space of the server.

via How to run your own Git server with GitlabHQ on Ubuntu 14.04 | HowtoForge – Linux Howtos and Tutorials.

Just in case anyone has a hankering to run there own “GitHub” or build an open source software community for a particular space, like law or government.

Categories: Teknoids Blogs

Slow day at the ranch, trying to get

<CONTENT /> v.5 - Wed, 09/10/2014 - 10:46

Slow day at the ranch, trying to get over this cold or whatever the current dread disease is. Also a chance to try out some stuff on the old blog.
This is a status update, so I don’t need a title and it gets fed to various other places like Twitter and Facebook.

Categories: Teknoids Blogs

How To Keep Your Client Safe From Solicitation

The Lawyerist - Wed, 09/10/2014 - 10:31

Some of the most fundamental rules governing the ethics of lawyers relate to attorney advertising. Don’t over-promise in your ads, include basic disclaimers, and never offer your services to someone you know is already represented.

So what do you do when another lawyer is trying to solicit your client?

On the one hand there is the issue of whether to report unethical conduct to the proper regulators. In brief, in many states there is some obligation (or at least encouragement) to report lawyers who violate the rules.

On the other hand, there is the issue of keeping your client while still meeting all of your own ethical duties.

Determine Your Client’s Knowledge

The Unsophisticated Client: Some clients are not particularly sophisticated, especially when hiring lawyers, and will not realize the issues raised by solicitation. They may be easily swayed to hire the soliciting lawyer without realizing the impact on their own case and fees. Of all the types of clients, it is this one you need to be most concerned about protecting their interests, beyond protecting your own bottom line.

The Sophisticated Client: Other clients hire lawyers routinely, and do so primarily for business reasons. They understand the game well enough to know that there are lots of lawyers out there, and will be less easily sucked in.

The Lawyer Client: Some clients are lawyers themselves, and they understand exactly what the soliciting lawyer is doing and the unethical nature of the conduct. They are likely to be as peeved as you are by the contact.

Determine the Offense

If the contact from the soliciting lawyer is a simple flyer or letter offering services in a very general way, much like the letters often sent to people who have gotten traffic tickets, it is far less likely to cause any issues between you and your client.

Consider, though, the soliciting lawyer who presents to your client a specific idea or general impression that implies you may be failing at your job. An ethics defense lawyer knows that the state bar has jurisdiction over lawyers practicing in the state and licensed by the bar. He also knows that lawyers facing bar prosecution chaff at the idea. The lawyer’s client, also an attorney, receives a solicitation pushing the client to hire new counsel and make a motion to dismiss on due process and jurisdictional grounds. The soliciting lawyer claims that the state bar has no authority over the client.

Even a lawyer client (or perhaps especially one) will be intrigued by the prospect of a sexy game-changing jurisdictional argument. If you never addressed this potential argument with the client, and if the soliciting lawyer is being really aggressive, you may have a real issue on your hands between you and your client.

Courses of Action

There are a couple of options on how to proceed. You might call the soliciting lawyer and inform them that your client is represented, but that does not negate the damage already done. The client ultimately has the right to change attorneys at any time, so this will not protect your client relationship.

In an effort to preserve the relationship, you should explain to your client that the soliciting lawyer has violated ethical rules by soliciting them, and who knows what other rules they will violate. That said, be careful with your choice of words. You do not want to inadvertently slander a fellow attorney.

Another explanation owed to your client is the cost involved to switch lawyers. You do not want to imply that you are forcing or pressuring them to stay with you, but you should objectively explain the costs, such as paying the new lawyer to get up to speed on their case. Additionally, you can ask your client if there is any way to improve your services. That is a perfectly acceptable question to ask, and is good business practice.

Finally, consider whether you want to report the attorney to the ethical authorities. In some states it is mandatory to report unethical conduct (those following Model Rule 8.3 as written). In other states it is encouraged but not required to report unethical conduct. Some states are completely silent on the issue, but no state would prohibit you from reporting ethical transgressions.

Balancing Act

It is obviously a problem to have other lawyers attempting to poach your business, but in our “gentlemanly profession,” we must also be careful in how we handle it. Clients need our protection from unethical would-be poachers, but they also have a right to choose their counsel. Balance the  sophistication of your client with the nature of the soliciting lawyer’s conduct, and you will find the appropriate action to cover all your bases, protect your client, and hopefully keep your business.

Categories: Teknoids Blogs

Making a Mark

slaw - Wed, 09/10/2014 - 08:45

From time to time, in each of our lives, someone enters and makes an indelible mark upon us. I’ve written here previously about some of those who have left marks on my life and influenced my career choices; another such person is Allan Fineblit, Q.C.

Allan is the outgoing CEO of The Law Society of Manitoba. He’s been the CEO of the Law Society of Manitoba (“LSM”) for some 16 years, through most of my years at the bar.

When I worked at the LSM, he was my boss. Nearly annually, I would sit down with him for a little chat about what else I might do at the Society. He always was ready with a creative idea for a new challenge to stem my growing boredom. Since I left the LSM to pursue other opportunities, he’s often joked that he was disappointed in my choice, as it damaged his record of successful long-term hires.

Allan has also left a significant mark on the legal profession in Manitoba, and throughout Canada. He leaves “big shoes” to fill at the LSM.

Allan’s style of leadership draws heavily upon his folksy charm. He is approachable and accessible, as demonstrated in his regular column in the Law Society’s Communiqué, Allan’s Odds & Ends, but he is equally comfortable in wielding the authority that comes with his position. When I worked at the LSM, I didn’t always agree with Allan’s decisions, especially those times when he “overruled” my recommendations, but he always communicated his decisions with respect, outlining his reasoning in such a way that one could clearly see how he got to his position.

What sets Allan apart from most is his vision. His view of the legal profession in Canada though rooted in where it has come from, boldly reaches upward and beyond where we are today to where we ought to be tomorrow. He is always looking ahead to how the profession could better meet the needs of the public it serves, but doing so with political acumen and pragmatism. I saw this when we worked together at the LSM, but even more clearly in the work he’s been doing on the Steering Committee for the CBA’s Futures Initiative.

Allan has recently announced he’s returning to private practice with Manitoba firm, Thompson Dorfman Sweatman LLP. This gives me a little chuckle as I have often heard him comment, in the context of dealing with issues of competence of members, that any lawyer with a practicing certificate is entitled to hang up their shingle and represent clients regardless how long they’ve been away from day to day legal practice. But Allan knows better than most of us what it takes to be a competent lawyer and I’ve no doubt he’ll ably demonstrate those skills as he hangs up his own shingle next month.

 

Categories: Teknoids Blogs

CASL Software Provisions

slaw - Wed, 09/10/2014 - 07:57

CASL – the Canadian anti-spam legislation – contains provisions that require certain disclosure and permission requirements on the installation of software that does certain things, or when software does certain things. This aspect of CASL has been overshadowed by the anti-spam provisions, in part because the software provisions are not in effect until January 15, 2015.

Unfortunately these software provisions are not easy to comprehend or apply in practice. There is a lot of uncertainty around their interpretation. And IMHO they are going to cause far more harm than good. There is a real danger that some software creators will simply not offer their products in Canada to avoid the pain of complying with CASL.

Yesterday CRTC and Industry Canada representatives were at a Canadian IT Law Association teleconference to collect questions from the IT bar to help them prepare FAQ’s or guides to the CASL software provisions. That guidance should be a big help to understanding the legislation.

Unfortunately they did not give us any hints at all on their thoughts on interpretation. They are aiming to publish their material in November or December, which, as one participant commented, is far too late. Compliance will be more complicated than tweaking a EULA. Software vendors will require time to create new processes and verbiage to comply. Then back that up through an effective lost 2 weeks over the holidays, and the time it will take to digest and advise clients on what they have to do….

Categories: Teknoids Blogs

Ghostwriting of Law Firm Blogs – Unethical? Maybe. Bad Marketing? Definitely.

slaw - Wed, 09/10/2014 - 06:00

Recently, I’ve heard from more and more clients that they’ve been contacted by a website and digital services provider offering to not only build them a new website but to provide content for the blogs on their site. Now, I could write a whole article on their websites, pricing model, quality of usability and practice of “re-renting” websites (including the content), but that will need to wait for another day. What’s really on my mind is the trend towards the “ghostwriting” of lawyer blog posts that we’re starting to see here in Canada.

In this instance, “ghostwriting” is whereby a person who is not a lawyer at the firm (and often a non-lawyer) writes a blog post (or article) that is positioned to clients and prospects as written by a lawyer of the firm. I’m not talking about a situation where an associate drafts a first version of a piece that is them re-worked by a partner. That’s a great way to teach associates about both writing for business development purposes in addition to honing their research skills. I don’t even refer to the process of having a marketing team member review the post to ensure that there isn’t too much “legalese” and that the subject line will grab the attention of the target audience.

I’m referring to a situation where an outside provider is paid to write content which is positioned by the firm as being written by their lawyer or law firm. If you feel that blog posts are a representation of the lawyer and their knowledge, is such ghostwriting “misleading’ under the CBA Rules of Professional Conduct? Does it undermine a lawyers fundamental duty “to act with integrity” when marketing their services?

Such providers are often aware of the ethics concerns, (they’ve been raised time and again in the US, where they’ve been providing these services for a number of years), and some have now moved to positioning the blogs as posted “On behalf of (client lawyers)”. Does this go far enough to circumnavigate the ethical issue? I don’t know, but it makes me, as a career legal marketer, feel squeamish.

Putting the ethical issues aside though, I would argue that this approach to law firm blogs equates to bad marketing and business development. All you have to do is look at the ten reasons for a law firm or lawyer to start a blog to understand why.

Having someone else write your blogs could still assist with lead generation and SEO (often the top selling points of such ghostwriting providers). However, many of the other reasons for blogging get lost in this model especially conveying your brand spirit, profile raising, knowledge sharing, and thought leadership. How can any of these possibly be successful if the lawyer (or at least the law firm) is not researching and producing the content themselves?

To demonstrate the point, here’s an example of a blog post that was posted “On behalf of …” a lawyer in Ontario (Since other ghostwriters aren’t so obvious about their practice.)

Breaking it down, this is where I see there are immediate problems with the post:

  • It says “On behalf of …” – do prospects and clients believe that the lawyer wrote the piece himself but had someone (the website administrator?) post it to the site on his “behalf”? If so, is this misleading?
  • Read the post. What does a case in the UK have to do with Ontario law? Who knows, as the post doesn’t explain the specific relevance of the case or the similarities or differences between UK and Ontario law. It simply states “The wife of a U.K. hedge fund manager will not be allowed to introduce evidence regarding the value of her husband’s stake in the company, according to a recent court ruling. While this case isn’t being litigated in Canada, high-asset divorce scenarios like this one can happen anywhere, regardless of where a couple resides.” If I were a client, this would make me wonder why my lawyer couldn’t cite a case in Ontario (or at least Canada!), and then I’d find another lawyer.
  • I found a number of other law firms with close variations of the exact same post (citing the same case) that had been posted on their “behalf”. Of the firms, four were in Ontario (two in the same market) and one was in Alberta.

You may argue that it’s not too bad, considering how often law firms write about the same cases, but this is not the same. These posts are written about the same case by the same vendor, and in case you think I’ve just stumbled across one example, rest assured there are literally hundreds out there.

I came across another post from a Canadian law firm website that opens as follows. “NBA fans in Alberta might be interested to know that Paul George, a star player with the Indiana Pacers, is seeking a paternity test for a child he may share with a New York woman.”The case, filed in NY, in which an Indiana based NBA player is looking for the trial to be moved to Florida, may be interesting, is it truly relevant to Canadians? Could the lawyer (or his ghostwriter) not find an equally interesting case north of the border?

A variation on this post was posted “On behalf of” by the same vendor a whopping 39 times in the US and Canada according to Google. Examples of opening sentences include;

  • Fathers in Illinois could be interested in this story about a New York woman who claims that Paul George, who is an Indiana Pacers All-Star, is the father of her baby daughter born on May 1.
  • Texas basketball fans may have heard that Indiana Pacers All-Star Paul George is involved in a paternity suit with a New York woman. 
  • Sports fans in Georgia may be interested to learn about a child custody dispute involving Indiana Pacers’ Paul George.

So much for demonstrating your firm brand and thought leadership!

My advice as a legal business developer is simply this; if you want to blog, then make sure it works for you and your marketing strategy. Instead of purchasing content that could actually hurt your practice, there are other tactics that can achieve your goals. A few ideas include the following:

  1. Team up with your colleagues and produce a firm or practice specific blog. If there are six of you in the group, you can each commit to four blogs a year – your blog would have a new post twice a month.
  2. Repurpose content that you’ve already created, such as client presentations, CLE sessions, internal knowledge sharing, client comment pieces, and even research for a file.
  3. Remember that you’re not producing a piece for the law review: a blog post can be as little as 300 impactful words if they convey your message and serve their purpose.
  4. It’s ok to blog about a topical case – just make sure it’s relevant to your audience and your market.

And if you still don’t feel that a blog can be a comfortable part of your marketing and business development strategy, then don’t blog. You just need to figure out what works for you.

Categories: Teknoids Blogs

Wednesday: What’s Hot on CanLII

slaw - Wed, 09/10/2014 - 06:00

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

For this last week:

1. R. v. Craig, 2009 SCC 23, [2009] 1 SCR 762

[1] Abella J. — The issue in this appeal is how to apply the forfeiture provisions for offence-related real property under ss. 16(1) and 19.1(3) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.* Two interpretive approaches are possible. Neither is free from difficulty, but one is, it seems to me, generally fairer than the other.

[2] The first approach views forfeiture orders as an aspect of an interdependent global punishment. This approach, which conceptually combines the forfeiture order with terms of imprisonment or other aspects of a sentence, leads almost inevitably to less jail time for those who have property available for forfeiture than for those who have none, on the theory that the accused has been sufficiently punished through the forfeiture order.

[3] The second approach sees the need for a separate inquiry into whether forfeiture is justified based on a discrete statutory proportionality test. This approach, supported by the structure and wording of the statute, seems to me to be preferable because it avoids the unpalatable possibility of trading property for jail time, and therefore ensures that the legitimate liberty interests of individuals will be protected in a more consistent way. In my view, the loss or retention of liberty should not depend on whether an individual has property available as a sacrificial alternative.

2. Fernandes v. Penncorp Life Insurance Company, 2014 ONCA 615

[92] In the case under appeal, it is common ground between the parties that an objective of the insurance policy was to secure a psychological benefit and that, at the time, the parties reasonably contemplated that a failure to pay benefits could cause the respondent mental distress.

[93] As mentioned, on appeal the appellant concedes that there was some entitlement to mental distress damages but takes issue with the quantum of the award.

[94] In his reasons, the trial judge relied on Fidler and McQueen v. Echelon, noting that these decisions had upheld mental distress damages awards of $20,000 and $25,000 respectively.

3. William Bishop v. Law Society of Upper Canada, 2014 ONSC 5057

[11] The Hearing Panel found that the appellant knowingly assisted with dishonest and fraudulent conduct. The Hearing Panel rejected the appellant’s contention that he made reasonable inquiries about these transactions and was as much a victim of the fraudulent conduct as were the others. Based on a number of facts, many of which I have set out above, the Hearing Panel concluded that the appellant had also been both reckless and wilfully blind to the fact that the transactions were not bona fide. While the Hearing Panel relied on certain admissions that the appellant made during the course of his evidence, the Hearing Panel also stated that they did not otherwise accept the appellant’s evidence.

[12] On appeal, the Appeal Panel found that the Hearing Panel’s conclusions were reasonable ones to reach on the evidence. The Appeal Panel found that there was clear evidence, including the appellant’s own admissions, that he was aware that the transactions were fraudulent.

[13] In my view, the conclusions reached by the Hearing Panel, as affirmed by the Appeal Panel, are unassailable. Perhaps anticipating that eventuality, before this court the appellant changed tack somewhat and submitted that he was duped by his clients and should, consequently, have at most been found guilty of the lesser offence of failing to be on guard against being so duped instead of the more serious offence of participating or knowingly assisting in dishonest or fraudulent conduct. If that conclusion was reached, then the penalty of revocation would clearly be inappropriate.

The most-consulted French-language decision was R. v. Sault Ste. Marie, [1978] 2 SCR 1299

Le critère primordial devant servir à déterminer s’il y a multiplicité devrait être d’ordre pratique et fondé sur la seule justification valide de la règle s’opposant à la multiplicité: l’exigence que l’accusé sache de quoi il est accusé et que l’ambiguïté de l’accusation ne lui nuise pas dans la préparation de sa défense. En l’espèce, il n’y a rien d’ambigu ni d’incertain dans l’accusation. Le paragraphe 32(1) porte sur une seule question, la pollution, et une seule infraction générique a été imputée, en essence «la pollution». Puisqu’il ne s’agit pas d’une accusation multiple, il est inutile d’examiner la question de savoir si un défendeur peut opposer la multiplicité pour la première fois en appel.

En ce qui concerne la question de la mens rea, la distinction entre l’infraction criminelle réelle et l’infraction contre le bien-être public est de première importance. Dans le cas d’une infraction criminelle, la mens rea doit être prouvée et l’élément moral exigé pour qu’il y ait condamnation exclut la simple négligence. Par contre la «responsabilité absolue» entraîne condamnation sur la simple preuve que le défendeur a commis l’acte prohibé; aucun élément moral n’est nécessaire. L’approche correcte est de relever le ministère public de la charge de prouver la mens rea, compte tenu de l’arrêt Pierce Fisheries, 1970 CanLII 178 (CSC), [1971] R.C.S. 5, et de l’impossibilité virtuelle dans la plupart des cas d’infractions réglementaires de prouver l’intention coupable et, de plus, de rejeter la responsabilité absolue et d’admettre la défense de diligence raisonnable. Il est loisible au défendeur de prouver qu’il a pris toutes les précautions nécessaires. Alors que la poursuite doit prouver au-delà de tout doute raisonnable que le défendeur a commis l’acte prohibé, le défendeur doit seulement établir, selon la prépondérance des probabilités, la défense de diligence raisonnable. En conséquence, trois catégories d’infraction sont maintenant reconnues: (premièrement) les infractions dans lesquelles la mens rea, doit être établie; (deuxièmement) les infractions de «responsabilité stricte» dans lesquelles il n’est pas nécessaire d’établir la mens rea mais pour lesquelles la défense de croyance raisonnable à un état de fait inexistant ou la défense de diligence raisonnable seront recevables; et (troisièmement) les infractions de «responsabilité absolue» où il n’est pas loisible à l’accusé de se disculper en démontrant qu’il n’a commis aucune faute. Les infractions criminelles dans le vrai sens du mot tombent dans la première catégorie. Les infractions contre le bien-être public appartiennent à première vue à la deuxième catégorie. Les infractions de responsabilité absolue sont celles pour lesquelles le législateur indique clairement que la culpabilité suit la simple preuve de l’accomplissement de l’acte prohibé.

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

Categories: Teknoids Blogs

Medieval Work Tools

slaw - Wed, 09/10/2014 - 05:30

I will turn 44 soon. I’m officially middle aged and mid-career. It has slowly – and I mean slowly – occurred to me that it’s time to update some of the old-school work tools that I use on a regular basis.

Buy a watch with a bigger face. I was used to relying on my delicate dress watch. But after visiting the Shinola flagship store in Detroit a few weeks ago, I realized that the reason why I like their watches so much is because the faces are so big. And I can read them.

Use the voice dictation software on my iPhone to text and write emails on the go. I can’t bring myself to do this in public, but if I’m sitting in the office dictating a text or email, I have no hesitation speaking into the contraption. I have learned to loathe teeny, tiny keyboards.

Use the voice dictation options and set accessibility preferences on my desktop. I use voice and verbal tools to keep track of time on the half-hour and to dictate interviews, notes and documents. I also reverse the screen colours (white typeface, black background) to reduce eye strain when editing on screen.

Buy the current edition of the Oxford English Dictionary, Oxford Thesaurus and Chicago Manual of Style. I actually prefer the print versions. It’s been at least five years since I last updated the writing resources in my office and I’m sure that “bookaholic” isn’t in the OED edition on my shelf.

Get reading glasses. In case you haven’t guessed, it’s time for me to accept defeat in this department. The last time I spoke with my ophthalmologist about this, he said “you’d be surprised by the number of people your age who refuse to wear reading glasses”. Actually, I wouldn’t.

I knew I was no longer ‘hip to the scene’ when an articling student visiting my office exclaimed “Oh, look! You’re using a real thesaurus. How cute!”

I responded, “Didn’t you know that the thesaurus is named after a species of dinosaur? Student: “Really?” Me: “They subsisted on a steady diet of articling students.”

I accept middle age. I love new technology and use it to work efficiently whenever I can. But I still enjoy some of my old work tools. I also accept that I don’t have to keep doing things the same old way just because it made sense at some time in the past.

Onward.

Categories: Teknoids Blogs

Apple Watch: Coming to a Classroom Near You?

The Chronicle Wired Campus - Wed, 09/10/2014 - 03:55

Wearable technology has entered the mainstream. The Apple Watch, announced on Tuesday, ushers in the possibility that, one day soon, campuses across the country will contend with students who are literally attached to their gadgets.

“These wearable technologies will become like appendages,” said B.J. Fogg, a consulting professor at Stanford University and director of the Stanford Persuasive Tech Lab. “To remove those capabilities will be like tying one hand behind your back.”

While the prospect of the new device may thrill technophiles, it may also make professors and administrators uneasy. After all, a classroom of students with miniature computers strapped to their wrists could seem like an instructor’s nightmare.

But Teresa Fishman, director of the International Institute for Academic Integrity at Clemson University, believes wearable technology is no cause for alarm. Rather, she said, it should prompt universities to encourage innovative teaching that reflects modern realities.

“I hope that what is going to happen in response to something like this is not more emphasis on surveillance, but instead something related to changing what’s going on in the classroom,” Ms. Fishman said.

Before the Internet, she said, colleges had monopolies on knowledge and offered students exclusive access to information. With the availability of online resources, she added, higher education has to change.

“The reason you come to college [now] is to learn how to navigate between the appropriate information and the inappropriate information,” she said. “I hope this will take us a little further to more-complex evaluation.”

A Cheating Tool?

Before laptops and cellphones, cheating on a test meant copying off a neighboring classmate. But in the near future, students may be able to peer at web pages on their smart watches or use them to text friends who aren’t in the classroom.

“If you were going to have a confederate with whom you would be cheating, it had to be the person right next to you,” Ms. Fishman said. “That’s expanded to people all the way on the other side of the world.”

She proposed a two-pronged approach to accommodating wearables in the classroom: adapt assignments and emphasize ethics.

“Give assignments that assume students are going to reach out on the Internet and talk to their friends,” she said. “This has them taking advantage of all the available information and collaborations they’ve established.”

Trying to outmaneuver students using technology is ineffective at preventing cheating, Ms. Fishman believes. And she said it doesn’t deal with the root of the problem.

“If we keep students from cheating through technological means, we haven’t done anything to decrease the likelihood of them cheating in the future,” she reasoned. “From an educational perspective, we want to develop ethical decision-making habits in the same way we develop other reasoning skills.”

And when it’s essential to assess what students can do on their own, Ms. Fishman recommends a method that’s practically medieval.

“Rather than getting higher tech, the solution is often the lowest-tech one of all: an oral exam with a student in which you can talk through a problem,” she said. “It’s time-consuming, and time-consuming means expensive, but there’s almost nothing that beats a conversation.”

Distraction Factor

Even if wearables lead to novel teaching techniques, there’s no denying their potential as classroom distractions. A Facebook notification vibrating at a student’s wrist can divert her attention from even the most interesting seminar.

“The challenge we face with all of these technologies is, when are they supporting legitimate learning and when are they detracting from it?” said David M. Levy, a professor in the Information School at the University of Washington. “When you look at the wearable stuff, what I notice is further integration of the technology into our lives, increasing accessibility, and then, this trend toward invisibility.”

Mr. Levy, who teaches a class called “Information and Contemplation,” believes that it would help students to think critically about the effects of technology on their learning. Both he and Stanford’s Mr. Fogg are upfront with students about the possible pitfalls of bringing gadgets into the classroom.

“In my class, if I see it gets to be a problem, it’s not impossible to say, ‘Take off your wearable,’” Mr. Fogg said. “I tell them, ‘You are taking the seat some other student could have been in …. You’ve made an investment, and I need to help you optimize it.’”

Mr. Fogg, who studies how technology can trigger changes in human behavior, cited research by a Florida State University psychology professor, Roy F. Baumeister, to explain how wearables could negatively affect even those students who deny the urge to check their smart watches.

“If students are wearing a mobile device and it’s telling them, ‘You have a new picture,’ and they’re sitting in class resisting, it’s wearing away their willpower,” Mr. Fogg said. “What we’re doing is giving people an appendage that saps their willpower, meaning they don’t have it available for other things.”

But the outlook may not be entirely bleak. In Mr. Fogg’s 2002 book, Persuasive Technology: Using Computers to Change What We Think and Do, he theorized about an app he called Study Buddy, which could prompt students to study, show them how many of their friends were studying at any given time, and congratulate them for meeting goals.

“It’s first going to be a distraction and detriment, and it’s going to be a learning curve for how to make this a clear benefit for learning and social skills,” Mr. Fogg said.

Health Helper

The potential benefits of wearables on student health outside the classroom are more readily apparent. It can be hard to maintain healthy habits at college, where alcohol is abundant, sleep comes at a premium, and all-you-can-eat dining-hall pizza is a tempting salve for the stress of exams. Apple Watch joins a crowded field of fitness trackers promising to promote wellness—and could be a tool to help students avoid the freshman 15.

“I don’t think most freshmen realize how many calories are in six beers,” said Jennifer M. Sacheck, an associate professor in the Friedman School of Nutrition Science and Policy at Tufts University. “Diet is one thing that changes pretty dramatically when it comes to college because you have that autonomy …. I think some of these apps could help them keep a balanced diet.”

In addition to facilitating personal fitness, wearable technology can benefit health research. Ms. Sacheck uses fitness trackers purchased through a Tufts Innovation Grant to teach the basics of exercise physiology in a graduate-level class about physical activity and nutrition.

“We can teach these fundamentals,” she said, “with these gadgets.”

Categories: Teknoids Blogs

MOOC Provider Gets Into College Counseling

The Chronicle Wired Campus - Wed, 09/10/2014 - 03:55

The providers of massive open online courses mostly cater to adults who already went to college. Now one provider, edX, is setting its sights on high-school students who are trying to get in.

The nonprofit organization just announced a raft of free, online courses for high-school students. Most of the new MOOCs cover material from Advanced Placement courses in traditional disciplines. But one course, called “The Road to Selective College Admissions,” will aim to counsel students on how to produce a successful college application.

“We will provide tools to help students plan their high-school summers, and begin considering financing a college education,” reads a description of the course, which will be taught by college counselors at St. Margaret’s Episcopal School, a private school in California. “Students will learn how to build a support network and be given tips on how to be successful in college once they matriculate.”

This may be the first move a major MOOC provider has made into college counseling, an industry that has boomed in the last decade.

As formal degree programs have resisted disruption by free, online courses, MOOC providers have been probing the edges of higher education. Last year edX ran a job-placement pilot, in which it tried to match promising MOOC students with employers. But the organization shut down the program after none of the pilot’s 868 participants landed jobs.

Roland M. Allen, director of college counseling at St. Margaret’s, does not think the free, eight-week course will disrupt the college-counseling industry. Wealthy families seeking an edge will still hire consultants, he said.

Mr. Allen said he hopes the free course will attract less-privileged students who could use some tips on filling out the necessary forms, nailing the essay, and getting the most out of a campus visit.

“It’s all just an opportunity for us as a school,” he said, “to offer something to students who don’t have what our students have.”

Categories: Teknoids Blogs

Epstein et al.: The Value of Words: Narrative as Evidence in Policy Making

Legal Informatics Blog - Wed, 09/10/2014 - 03:34

Dmitri Epstein, Cynthia R. Farina, and Josiah Heidt have published The Value of Words: Narrative as Evidence in Policy Making, Evidence and Policy, 10, 243-258 (2014).

Here is the abstract:

Policy makers today rely primarily on technical data as their basis for decision making. Yet, there is a potentially underestimated value in substantive reflections of the members of the public who will be affected by a particular regulation. Viewing professional policy makers and professional commenters as a community of practice, we describe their limited shared repertoire with the lay members of the public as a significant barrier to participation. Based on our work with Regulation Room, we offer an initial typology of narratives — complexity, contributory context, unintended consequences, and reframing — as a first step towards overcoming conceptual barriers to effective civic engagement in policy making.


Filed under: Applications, Articles and papers Tagged: Administrative law information systems, Citizens' participation in erulemaking, Citizens' participation in lawmaking, Citizens' participation in rulemaking, Crowdlaw, Cynthia R. Farina, Dmitry Epstein, erulemaking, erulemaking systems, Evidence and Policy, Josiah Heidt, Legal communication, Legal evidence information systems, Legal narrative, Narrative and evidence in erulemaking, Narrative and evidence in rulemaking processes, Narrative and legal evidence, Regulation Room, Regulatory information systems
Categories: Teknoids Blogs

Sheridan: Big Ideas: Big Data for Law

Legal Informatics Blog - Wed, 09/10/2014 - 03:09

Audio has been posted of John Sheridan‘s recent presentation entitled Big Ideas: Big Data for Law.

Here is a description from the Website:

Big data is big news. Did you know an estimated 90 per cent of the world’s data was created in the last two years (see www.ibm.com/big-data)? Insights gleaned from large datasets are increasingly driving business innovation and economic growth. Underpinning this ‘big data revolution’ is a powerful combination of low cost cloud computing, open source analytics software and new research methodologies. These are enabling us to move from simply storing large sets of data to extracting real value from them. Big data analysis can now tell us everything from the most borrowed library books in 2013 to the most overweight areas in England.

John Sheridan, Head of Legislation Services, introduces the Big Data for Law project. Why does data matter in law? What are we doing to transform the legal research? Can you imagine what an annual ‘census’ of the statute book might look like and what it could be used for? If you care about law, how it works and how we can make legislation clearer and more accessible, this talk is unmissable.

This event took place as part of Big Ideas, a series of monthly talks on big ideas coming out of The National Archives’ research programme.

Click here for earlier posts about the Big Data for Law project.

HT @willmacgregor


Filed under: Applications, Audio, Presentations, Projects, Technology developments, Technology tools Tagged: #goodlaw, (John Sheridan, AHRC, Arts and Humanities Research Council, Big data and law, Big data and legal information, Big data and legislation, Big data and legislative information systems, Big Data for Law, Good Law Initiative, Legal big data, Legal data, Legal drafting, Legal informatics research projects, Legal information behavior, Legal information needs, Legal Linked Data, Legal N-Grams, Legislation.gov.uk, Legislative big data, Legislative data, Legislative drafting, Legislative drafting practices, Legislative information behavior, Legislative information systems, Legislative Linked Data, Legislative N-Grams, Legislative pattern language, Linked Data and law, Linked Data and legislation, N-Grams and legal information, N-Grams and legislative information, National Archives UK, Open legal data, Open legislative data, Pattern language for legislation, Pattern languages and legal information systems, Pattern languages and legislative information systems, Researchers' legal information needs, Usage data about legal information systems, Usage data about legislative information systems, Users' legal information needs
Categories: Teknoids Blogs

van Engers and Nijssen: Connecting People: Semantic-Conceptual Modeling for Laws and Regulations

Legal Informatics Blog - Wed, 09/10/2014 - 02:59

Tom van Engers and Sjir Nijssen presented a paper entitled Connecting People: Semantic-Conceptual Modeling for Laws and Regulations, at IFIP EGOV 2014, held 1-3 September 2014 in Dublin, Ireland.

Here is the abstract:

Working on building large scale information systems that have the job to serve their clients in a client friendly way and at the same time have to comply with the rules that regulate their behavior, including their (legal) decision-making processes, we observed that designing these systems is still more an art rather than a result of systematic engineering. We have been working on a method allowing stakeholders to systematically analyze the rules and their meaning (i.e. their effect in practical cases) in such way that it supports systems designers and (legal) experts in making sense out of the legal sources, and use this understanding of the regulatory system at hand when designing information systems that supports both the (administrative) organizations and their clients. In this paper we will elaborate on our proposed analysis approach, show how to systematically use the patterns explicitly but often implicitly available in laws and regulation. The Hohfeld conceptual model is very helpful. The Hohfeld model needs extension in our view and thus we have specified the semantic-conceptual model for Hohfeld as a solid base to add time travel aspects.


Filed under: Applications, Articles and papers, Conference papers Tagged: Conceptual modeling, Conceptual modeling of legal information, Conceptual modeling of regulations, Conceptual modeling of statutes, Conceptual models of law, Hohfeld conceptual model, IFIP EGOV, IFIP EGOV 2014, Legal conceptual models, Legal knowledge representation, Modeling Hohfeldian legal relations, Semantic conceptual modeling, Semantic conceptual modeling of law, Semantic conceptual models of law, Sjir Nijssen, Tom van Engers
Categories: Teknoids Blogs

My Twitter Digest for 09/08/2014

<CONTENT /> v.5 - Tue, 09/09/2014 - 14:30
Categories: Teknoids Blogs

Take Good Notes

slaw - Tue, 09/09/2014 - 06:00

Tablets are for information consumption. Voice options may be changing that a bit – for example, if you need help on where to bury a body – but it is challenging to create with a bare tablet. A keyboard will help but then you are straddling the laptop fence. There is one key productivity app that lawyers can use with little effort and no keyboard and that is the notebook. Some interesting notebook and journal apps have appeared recently that can make you feel as though you’re writing on a paper pad.

Writing on a tablet isn’t for everyone and here are some of the reasons you might not use it in your legal practice. I like writing on my tablet for a couple of reasons, most of which would hold if I was using paper. It is faster for me to quickly capture notes by hand than by keyboard. Research that writing is better for information retention and learning than typing also resonates. I can also keep better eye contact and listen more closely when I’m writing than when I’ve got a screen propped up between me and others. Almost as importantly, sometimes I am not writing notes so much as doodling to keep myself engaged in a discussion which I’m hearing but not actively a part of.

Writing Apps: S Note, Moleskine Journal, Bamboo Paper

Samsung Android tablet users will be familiar with the S Note app (also available on Windows 8), and they have one for phone users as well called S Memo. It remains my favorite default Samsung app but I have been playing around with Wacom’s Bamboo Paper (iOS, Android, and Windows 8) and Moleskine’s Journal (iOS, Android, and Windows phone). There are loads of journal and note-taking apps out there but my interest was piqued by these two because of Wacom’s dominance in writing and illustration hardware and Moleskine’s writing paper journals.

S Note has a couple of templates (memo, birthday, landscape note) but that isn’t a big draw for me. It has two specific features I like. The most important is that it can block input from anything other than the S Pen, Samsung’s stylus. It means I don’t end up with random lines where my sleeve button or outside of my pinky finger touches the tablet. I also like the feature where, as you are writing, it will convert your handwriting into text.

Moleskine’s Journal is a fun app. To open it, you have to slide the rubber band image over just as you would with a paper journal. It comes with some better defined templates – weekly schedule, to do list, wine journal – and looks very nice. It has some unusual features, like the ability to add bits of text or images to the inside “pocket” of the cover. It is very much like a physical journal.

Unfortunately, it’s difficult to just write with the app. The pen and pencils are more suited to artists than writers and I spent a lot of time popping open the side menu and fiddling with my pen width. I never did get it quite right. Someone doing drawings or who writes with more flare would find the tools quite handy.

It may be my tablet or the early iteration of the app, but I ended up with lots of blobs around my writing. It was as if I had a leaky fountain pen. You can also see the marks my sleeve buttons made at the bottom right of the screenshot. This is probably the nicest looking note-taking app I’ve seen, but it doesn’t have quite the functionality I would want.

Wacom’s Bamboo Paper is a lot closer. It has very little in the way of templates but, when you create a new notepad, you can choose gridlines or straight lines and any color cover you want. The writing is much nicer than with Moleskine – which is not surprising, since these are the hardware/stylus folks and Moleskine are the paper people – and had some nice tweaks.

You can select Bamboo Paper tools easily from the top toolbar, similar to the S Note. What I also liked is that if you press and hold your pen, it will display the color options. This means you can flip colors of ink without having to leave where you are on the page. Where the Moleskine and S Note pens can be more tightly controlled for width, Bamboo Paper just has 3 pen sizes. But writers should be able to use any of these.

Then What? Exporting Your Notes

If you are taking notes that are relevant to a client matter, you need to get them into the client file. S Note has an export feature that allows you to send all or part of a note book to PDF. Unfortunately, Moleskine is a social app and you can only export via its sharing menu to Facebook and Twitter, as well as the MyMoleskine site. Bamboo Paper uses the normal (on Android, at least) sharing function so, while it has no internal export option, you can share a journal to Convert to PDF or some other program. Once exported, you can add the PDF to your client file.

Me? I’m still a fan of writing on tablets. It’s enabled me to eliminate the last elements of paper from my work. I’ll stick with S Note for now because it is an excellent note taking tool. But I am going to keep both Moleskine Journal and Bamboo Paper around to see how they improve. You can never have too many writing apps. If you’re looking for a good note writing app, consider:

  • the types of pens and the control you have over them to act like a writing tool;
  • the way you use your pens (multiple colors, multiple highlights)
  • the types of templates included
  • and how you are going to get it out of your tablet and into your client file.
Categories: Teknoids Blogs