#Cbafutureschat Recap: Lawyers Learning to Play With Others

slaw - Mon, 07/21/2014 - 10:59

No matter the sport – from soccer to debate club – a team will get nowhere if all its players are specialists in the same position.

But just as there’s no “I” in team, there’s no team in a law firm – not one that can, to stretch that sporting analogy just a little bit further, cover all the bases, so to speak. That is in part due to the regulatory framework under which lawyers work, of course.

Still, there is growing recognition that it might be helpful for lawyers to work in tandem with professionals such as accountants, real estate professionals, project management professionals, psychologists and others in order to provide their clients with a more holistic service, since legal needs rarely arise in a vacuum – there are quite often other related questions that need to be answered.

So when National Magazine’s Yves Faguy hosted the CBA Futures Initiative’s penultimate Twitter Chat on Tuesday – CBA President Fred Headon will host the last one just ahead of the release of the final report at the CBA Legal Conference in St. John’s in mid-August – his question was, “What will it take for lawyers to play better with others?”

Mitch Kowalski says lawyers “typically don’t work well as team members with others. Many need to be the alpha dog, which can cause problems.”

First of all, suggested one participant, lawyers have to stop thinking they’re the smartest people in the room and learn to graciously accept the input of people with different skills and capabilities in order to best serve their clients’ interests.

CBA President Fred Headon says clients want lawyers to solve their problems, first and foremost. “If that requires input from others,” he adds, “shouldn’t we be able to do so seamlessly?”

Dan Lear, a tech lawyer in Seattle, responded that “should” is the salient word – “many lawyers fail in execution.”

Karen Dyck, a freelance lawyer in Manitoba, says lawyers should consult, defer and listen to other professionals if the question isn’t purely legal and a creative response is required. She says as it stands lawyers work with other professionals mostly as agents to be retained and instructed, i.e., controlling not consulting. Daily exposure to others who are equally competent in their own fields can change a culture of superiority.

One way to move lawyers into a more multi-disciplinary way of thinking is value billing, says Joshua Lenon, Clio’s lawyer in residence.

“I agree!” answered Karen Skinner, a lawyer at Gimbal Canada Inc. “But moving to value billing brings us right back to the politics of compensation and incentives. We can’t have value billing without a serious change in incentives and a shift to client-centred thinking.

“Value has to be perceived from the client’s perspective, not the firm’s or the attorney’s.”

Having non-lawyer managers in law firms will help ease the transition to a multi-disciplinary practice. Kowalski says all parties need to have clear, defined roles, with no differentiation between lawyers and others.

Changing the business model by offering incentives to non-lawyers such as partnership could help, suggests @MyLawScout. “Multidisciplinary talent will run when the lawyer is always the boss.”

Asked how much of the problem is regulatory and how much is cultural, Natalie MacFarlane, founder of Positive Impact Law, responded, “The problem IS cultural, which then informs the regulations.”

@MyLawScout added, “Vicious cycle. Culture holds back regulators and regulators hold back culture.” Still, conversations like the one taking place in the TwitterChat are “a good sign that the culture is changing. Let’s hope the regulators catch up.”

Dyck pointed out that creative, innovative lawyers already collaborate with other professionals insofar as they can, but they need to have regulatory barriers removed in order to leverage those relationships to their fullest potential.

Corrinne Boudreau of Nova Scotia’s Two Certainties Law said regulators could help with guiding principles on issues such as dealing with conflicts and confidentiality. “As an entrepreneur,” she added, “I like principle-based regulation more than prescriptive rules.” She says the key is bringing in other professionals whom you respect and who bring value to the clients.

There is likely a good reason for regulations barring fee-splitting with non-legal professionals , “or they wouldn’t exist,” says Lear, who adds, however, “In my opinion it can be done ethically and responsibly without harm to the client.”

Categories: Teknoids Blogs

Conflicts Rules Leave Room for (Careful) Collegiality

slaw - Mon, 07/21/2014 - 10:04

Consulting with more experienced colleagues to confirm that you’re on the right track in resolving a problem is natural and commendable in any profession. Working in isolation is inefficient, and leads to preventable errors. Without access to information about others’ experience, we’re forced to make our own mistakes. For this reason, sole practitioners are routinely encouraged to seek out mentors and advisers from among the broader bar.

But what if every time a colleague outside your firm asked for your opinion on a legal issue, you became conflicted out of representing any party whose interests were opposed to those of that colleague’s clients?

You’d stop giving advice, that’s what.

In a decision that recognizes the importance of fostering informal mentorship, the Ontario Superior Court held (in 1623242 Ontario Inc. v Great Lakes Copper Inc., 2014 ONSC 782 (CanLII) ) that a lawyer who provides a general opinion about the state of the law to a colleague without being privy to the specific details of the colleague’s case or the identity of his or her client and is later retained by a client opposed in interest to the colleague’s client is not thereby disqualified from representing his own clients.

In 1623242 Ontario Inc., a “veteran” lawyer provided what the court found to be a legal opinion of general application to a colleague. The colleague did not identify his own client or any of the litigants in the action to which the opinion applied. A few months later, parties (hereafter the “purchaser clients”) opposed in interest to the colleague’s client (and for whom the veteran lawyer had acted in the past) retained the veteran to represent them in a dispute about the purchase of a property contaminated with PCBs.

The information the veteran lawyer had provided over the phone related to mortgage foreclosure proceedings. The threatened foreclosure was still a live issue when the veteran lawyer was retained. With the assistance of a new lawyer, the advice-seeking lawyer and his client brought a motion seeking to prevent the veteran lawyer from continuing to represent the purchaser clients.

In considering the motion, the court applied the following two-part test for whether a lawyer should be disqualified due to a conflict of interest, articulated in MacDonald Estate v. Martin (1990 CanLII 32 (SCC))

  1. Did the lawyer receive confidential information attributable to a solicitor-and-client relationship?
  2. Is there a risk that the information will be used to the prejudice of the client?

With respect to the first question, the court noted that Rule 1 of the Law Society of Upper Canada’s Rules of Professional Conduct makes it clear that a solicitor-client relationship can arise even where the client does not explicitly retain the lawyer. However, the court held that “[i]t is a client imparting confidential information about him/herself to a lawyer, and the lawyer’s receipt of such information, that brings a solicitor-client relationship into existence.” The advice-seeking lawyer did not reveal his client’s or the opposing parties’ identity, and the details of the advice provided by the veteran lawyer were included in the pleadings, and hence not kept private. For this reason, the first test question had to be answered in the negative. Since no confidential information was communicated, there was no possibility that confidential information could be used to the prejudice of the moving party. The court concluded that “the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur.”

The court also reviewed, with references to the Rules of Professional Conduct, such issues as: at what point a solicitor-client relationship arises (hint: BEFORE the retainer is in place); what constitutes “legal advice” and the boundary “between general legal information and legal advice”; a lawyer’s duty of confidentiality (including in respect of non-clients); and a lawyer’s duty of care to non-clients. The decision provides a useful refresher about all of these topics.

Finally, in holding that the veteran lawyer’s provision of information did not put him in a conflict position, the court acknowledged the public policy implications of ruling otherwise: “A lawyer who receives a request for legal information from a more junior or less experienced colleague is entitled to assume, unless alerted either explicitly by the lawyer calling, or implicitly, by the confidential nature of the information imparted, that the consultation will not give rise to a conflict of interest or impose liability on the recipient of the request. To hold otherwise would have the effect of discouraging a sharing of general information that is beneficial to both the profession and the public.”

This decision should bring comfort to lawyers who take seriously their professional duty to mentor more junior members of the bar. However, it’s important to remember that decisions like this one are very fact-dependent, and that advice-giving situations may present in a variety of ways, so caution is important. To avoid putting yourself in a conflict of interest situation when giving advice, consider these tips that arise from the court’s reasons in this decision:

  • Learning confidential information about a party immediately creates, at minimum, a duty of confidentiality. If asked to give advice, remind the asker not to reveal identifying details about his or her client, opponent, or the matter (where the facts are fairly unique).
  • Keep your advice general. In 1623242 Ontario, the court held that the information given would have been available in a textbook on mortgage foreclosures. “Textbook” information is generally safe; tailored information is less so.
  • Remember the difference between “giving advice” in the broader sense, and giving legal advice. In particular, avoid recommending one possible course of action over another.
  • Speak with the lawyer, not his or her client. Not speaking with the client is not determinative with respect to avoiding a solicitor-client relationship, but at least the lawyer will not be able to testify that he or she mistook the conversation for legal representation.
  • Make it clear to the advice-seeker that you are giving general information that may or may not be applicable to a particular set of facts, and that it is not meant to be relied on as legal advice.
  • Make notes about the conversation, just in case the details of your involvement are ever questioned.

Wondering about the insurance implications of mentoring relationships? In Ontario, in an effort to promote mentoring – which can help inexperienced lawyers receive the support they need − LAWPRO will waive any deductible and claims levy surcharge on any claim made against a lawyer mentor arising out of a mentoring relationship, provided that:

  • the mentor and mentee agreed to enter into a formal mentoring relationship, as evidenced by a written document of some kind;
  • the mentor had no contact with the mentee’s client that would create a solicitor/client relationship; and
  • the mentee understood that she/he was responsible for individually and independently satisfying her/himself of the soundness of any suggestions,
  • recommendations or advice-like comments made by the mentor.
  • The Canadian Bar Association offers a useful resource on managing conflicts of interest: Conflicts of Interest Toolkit. You can also visit practicePRO’s conflicts page and/or topical listing of articles.

    This article is by Nora Rock, corporate writer/policy analyst at LAWPRO

Categories: Teknoids Blogs

Edward Snowden Tells the Legal Profession That Protecting Client Confidentiality Now Requires Encryption

slaw - Mon, 07/21/2014 - 08:52

From Saturday’s Guardian – here is the complete transcript.

The NSA whistleblower, Edward Snowden, has urged lawyers, journalists, doctors, accountants, priests and others with a duty to protect confidentiality to upgrade security in the wake of the spy surveillance revelations.

Snowden said professionals were failing in their obligations to their clients, sources, patients and parishioners in what he described as a new and challenging world.

No matter how careful you are from that point on, no matter how sophisticated your source, journalists have to be sure that they make no mistakes at all in the very beginning to the very end of a source relationship or they’re placing people actively at risk. Lawyers are in the same position. And investigators. And doctors.

It’s a constantly increasing list and one that we’re not even aware of today. I would say lawyers, doctors, investigators, possibly even accountants. Anyone who has an obligation to protect the privacy interests of their clients is facing a new and challenging world and we need new professional training and new professional standards to make sure that we have mechanisms to ensure that the average member of our society can have a reasonable measure of faith in the skills of all the members of these professions.

What last year’s revelations showed us was irrefutable evidence that unencrypted communications on the internet are no longer safe and cannot be trusted. Their integrity has been compromised and we need new security pro[grams] to protect them. Any communications that are transmitted over the internet, over any networked line, should be encrypted by default. That’s what last year showed us.

Snowden video

The best recent piece I have seen on the implications of these developments for the legal profession is a brilliant piece by Sharon Nelson & John Simek in this month’s ABA Practice Management, entitled Snowden NSA Revelations Will Change the Practice of Law. If you can’t access it here at the ABA, then the text is also at the Oregon Bar site.

Categories: Teknoids Blogs

More Summer School: Managing Legal Resources in the Semantic Web

slaw - Mon, 07/21/2014 - 08:32

Today I’m daydreaming of Italy …

The district of Ravenna lies in the north east of Italy, some 80 km (50 miles) from Bologna, the regional capital of Emilia Romagna. Ravenna is the second largest commune as per land area in Italy.”

If you need a good excuse to travel to Italy this may be the perfect opportunity.

The Summer School LEX programme is taking place in Ravena the first week of September. This is “an intensive 6-day, 8-hour-a-day program, that requires participants’ total dedication and intellectual commitment.”

  • September 1-2: Basic Module (an introduction to XML web technologies and technologies for drafting and managing standard-compliant legislative and legal documents;
  • September 3-5: Advanced Module (in-depth analysis of the higher levels of Semantic Web technologies and of their application to the legal domain: modelling of modifications, procedures and legal knowledge;)
  • September 6: Legal Open Data and Document Workshop;
  • September 8-9: Akoma Ntoso Development Workshop.

This looks like such a fantastic learning opportunity. Registration information is available here and there are a couple of scholarships available for students.

But alas … as much as I might like to go, I will not be attending. I will have to settle for the book from 2011, Legislative XML for the Semantic Web: Principles, Models, Standards for Document Management, edited and developed by four of the participating teachers at LEX: Giovanni Sartor and Monica Palmirani, both from the Faculty of Law at the University of Bologna; and Maria Angela Biasiotti and Enrico Fancesconi from the Institute for Legal Information Theory and Techniques in Florence.

The collection of papers includes:

  • Introduction: ICT and legislation in the knowledge society / Giovanni Sartor
  • Legislative information and the web / Giovanni Sartor
  • ICT-based management of legislative documents / Giovanni Sartor
  • A standard-based approach for the management of legislative / Fabio Vitali
  • Naming Legislative Resources / Enrico Francesconi
  • Akoma Ntoso for Legal Documents / Monica Palmirani and Fabio Vitali
  • Legislative Change Management with Akoma-Ntoso / Monica Palmirani
  • A MetaLex and Metadata Primer: Concepts, Use, and Implementation / Alexander Boer and Tom van Engers
  • Semantic Resources for Managing Legislative Information / Maria Angela Biasiotti
  • A Review of Systems and Projects: Management of Legislative Resources / Enrico Francesconi.

Check Worldcat for a library copy near you or head over to Springer and order your own copy.

Back to daydreaming about Italy …

Map showing Revenna, Italy

Categories: Teknoids Blogs

Monday’s Mix

slaw - Mon, 07/21/2014 - 08:00

Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. PierreRoy & Associés  2. Canadian Securities Law 3. Henry J. Chang’s Canada-US Immigration Blog  4. The Court  5. BC Injury Law and ICBC Claims Blog

PierreRoy & Associés
Déclarer faillite dans le cours d’une proposition de consommateur

Question : Je suis présentement en proposition de consommateur, mais ma situation a changé et mes revenus ont diminué. Faire mes paiements mensuels est de plus en plus difficile et je ne crois pas pouvoir compléter ma proposition. Est-ce que je peux convertir ma proposition de consommateur en faillite? Que puis-je faire? Réponse : Oui, durant votre proposition de consommateur il est possible de déclarer faillite….

Canadian Securities Law
CSA publish 2013-2014 continuous disclosure review

The continuous disclosure review program consisted of 221 full and 770 issue-oriented reviews of reporting issuers. Ultimately, 37% of the reviews resulted in issuers being required to make prospective changes by way of enhancements in future filings, 14% of the reviews resulted in issuers being required to amend or re-file certain disclosure documents, 16% of the reviews resulted in issuers being alerted to areas where disclosure enhancements should be considered…

Henry J. Chang’s Canada-US Immigration Blog
Canadian Government Announces Changes to Temporary Foreign Worker Program

On June 20, 2014, the Jason Kenney, Minister of Employment and Social Development, and Chris Alexander, Minister of Citizenship and Immigration, announced significant changes to Canada’s Temporary Foreign Worker Program. Prior to these changes, there were essentially two categories of temporary foreign workers – those who required a Labour Market Opinion (“LMO”) and those who were LMO-exempt. The purpose of the LMO was to assess whether issuance of a work permit to the foreign national would have a neutral or positive effect on the Canadian labour market….

The Court
Revisiting Aboriginal Title Part III: SCC Clarification in Tsilhqot’in Nation v British Columbia

On Thursday, the Supreme Court of Canada released Tsilhqot’in Nation v British Columbia, 2014 SCC 44. This important case, the conclusion of a 30-year legal dispute, now represents the latest and most comprehensive statement of the law of Aboriginal title in Canada. It is also the first successful Aboriginal title claim. By recognizing and affirming the Tsilqot’in Nation’s title to over 1700 square kilometres of territory, the Supreme Court has given full effect to the words of section 35 of the Constitution Act, 1982. …

BC Injury Law and ICBC Claims Blog
$70,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries Perpetuated by Stress

Reasons for judgement were released today addressing damages for lingering soft tissue injuries compounded by pre-existing emotional distress. In today’s case (Adkin v. Grant) the Plaintiff was involved in a 2010 rear end collision. She was 66 at the time of the crash and 69 at the time of trial. She suffered a variety of soft tissue injuries and some of her symptoms continued to the time of trial. A perpetuating factor for this was pre-existing emotional distress which exacerbated her symptoms. …


*Randomness here is created by Random.org and its list randomizing function.

Categories: Teknoids Blogs

Become a Five-Tools Project Manager

slaw - Mon, 07/21/2014 - 06:00

Baseball scouts dream of finding up-and-coming five-tools players. These rising stars hit for power, hit for average, speed around the bases, throw accurately, and field their positions well. Every position player in the major leagues has solid grades on at least a few of these tools, but only a handful have mastered all five.

Legal Project Management, as well, has five tools, each corresponding to one of the five areas you can manage:

  • Manage the project, starting with the project charter.
  • Manage the client, starting with the Conditions of Satisfaction.
  • Manage time, starting with the Off Switch.
  • Manage money, starting with budgets.
  • Manage the team, starting with assigning tasks accurately.

You’re in the big leagues in your legal practice. You’ve mastered the tools of your area of law, and of being a lawyer. However, a significant part of your day involves neither the law nor lawyering. As you’ve advanced through your career, you’ve been spending increasing time managing legal projects, even if you’ve never thought of it as “project management.” You’re getting matters organized. You’re working with the client, trying to understand her needs and meet her fiscal expectations. You’re assigning tasks to others. And you’re ridiculously busy.

This book is for you. It’s designed to help you move toward becoming an MVP (most valuable player) within your practice, a five-tools standout on the project-management portion of your job.

I use the word “standout” intentionally. Successful legal project managers will stand out in their practice as the people who get things done, who have satisfied clients, who build high-functioning teams, who drive profitability or accomplish more than expected with a shrinking budget.

The Sixth Tool

A few baseball teams look for a sixth tool as well, “knows how to play,” abbreviated KHTP. Anyone who’s watched today’s crop of major-leaguers throw to the wrong base, miss the cut-off man, or run the team out of a big inning understands the value of this skill.

While scouts can measure (sort-of) the five tools, they find it harder to assess KHTP. It’s often remarkable only by its absence, when a player makes a cringe-inducing mental error.

Likewise, practice managers, managing partners, and general counsels are starting to assess KHTP as well, “knows how to project-manage.” They may not (yet) recognize the positive aspects, the skillful use of the five project-management tools, but they’re increasingly likely to note the absence of this sixth tool. A lawyer who is repeatedly attached to failed projects, with budget overruns and high write-offs, with grumbling teams and dissatisfied clients, will increasingly stand out – for all the wrong reasons – in today’s difficult legal environments.

A Brief Review of the Five Tools

Future columns – as well as my new book, Legal Project Management Field Guide: Five Tools for Busy Professionals – will offer more detail about each of these tools, as do the courses I teach. For the present, here’s a brief summary.

The Project Charter collects up front the core information you’ll need to succeed with the project. What’s the business problem? What does success look like, both at a high level (vision) and with a small number of critical must-haves (“Done”)? What are the key deadlines? What resources (people, mostly) do you need? What’s the approximate overall cost to the client? Who are the stakeholders? What major project risks can you foresee – and get out in front of?

And most importantly – do the legal team and the client agree on what you won’t do?

The Conditions of Satisfaction represent a shared understanding of what the client is looking for – which goes beyond “a good result.” What are your deliverables? When? How do you communicate with the client? What’s the expected budget – their time as well as money? And what are the Critical Success Factors, three (or maybe four) items absolutely central to the client’s expectation of success?

The Off Switch is my name for cutting down the constant stream of interruptions that prevent you from reaching “flow,” or the seemingly effortless production of high-quality work for the client. You’re not giving your best if you’re thinking about email every three minutes. (You’re probably not liking your job as much as you could, either.)

Budgets are increasingly requested by clients – not necessarily detailed analyses, but rather an agreement as to what your work on a matter or file is likely to cost them. Clients almost always have fixed budgets, and they cannot use the money they’re spending with you for the other things they promised their own bosses they’d accomplish. Offering a budget is not the same as negotiating a fixed fee and does not preclude traditional hourly work.

Task Assignments are crucial when it comes to dividing work among the team. The biggest causes of rework and unplanned write-offs all relate to ineffective task-assignment processes. Good assignment procedures also take some of the fear and mystery out of delegation for those uncomfortable with what they see as ceding control.

(This article is adapted from Steven B. Levy’s new book: Legal Project Management Field Guide: Five Tools for Busy Professionals.)

Categories: Teknoids Blogs

With Scrim and Rolling Desks, a Journalism School Seeks a Tech Edge

The Chronicle Wired Campus - Mon, 07/21/2014 - 04:00

A little over a century after his death, Joseph Pulitzer still looms large at Columbia University’s Graduate School of Journalism. The building that houses the school bears his name. Every year the school announces the Pulitzer Prizes from the World Room, a reference to The World, his New York newspaper.

A bust of the publishing tycoon and school founder peers across the first-floor lobby and into what has been a construction zone for the past nine months. But on Monday, professors are to move into the space, the new headquarters of the David and Helen Gurley Brown Institute for Media Innovation. In its sleek design and open layout, it feels like a cross between a newsroom and a start-up. An official opening is planned for September 16.

A gauze-like scrim covers the interior. By day it will allow students and professors to project images onto the walls. By night the material’s translucence will combine with interior lights to cast what the institute’s co-director, Mark Hansen, calls “a kind of soft glow” onto the campus green. The working space will be malleable, highlighted by six rolling desks and wall-mounted television screens for those looking to plug and play.

The institute itself is intended as “an academic venture forum” for journalistic innovation—a place where graduate students and fellows can test new media, platforms, and business ideas. In its early days the institute, based on the premise that journalists and engineers aren’t talking enough with each other, has also functioned like a matchmaking service for students in the journalism and the engineering schools.

“Anybody who is connected to journalism understands that the future of journalism requires deep understanding of the new technologies of the Internet,” says Lee C. Bollinger, the university’s president.

Created in 2012 with a $30-million gift from Helen Gurley Brown, late editor of Cosmopolitan, the institute is a joint endeavor between Columbia’s journalism school and Stanford University’s School of Engineering. Stanford received $12-million, Columbia got the same amount, and $6-million went toward building the new space.

It is tempting to wonder what Pulitzer, whose gaze will now keep watch over the Brown Institute’s front door, would have thought of the space. He was, on the one hand, the consummate innovator, responsible for popularizing color cartoons, illustrations, and a brand of watchdog journalism aimed at working-class readers. One imagines that he would have delighted in the digital-art display that Mr. Hansen—whose work has popped up at the New York Times building and the University of Texas—designed for the institute’s doorway.

But Pulitzer was also a man of his times—convinced, as many were then, that the editorial and business sides of the news industry should remain separate. Although he would probably have admired the Silicon Valley flair and tech-start-up attitude that Stanford brings to the Brown Institute partnership, he might not have wanted it in his hallowed halls.

“I am sure that, if my wishes are to be considered,” Pulitzer wrote in a 1904 essay for for The North American Review, ”business instruction of any sort, should not, would not, and must not form any part of the College of Journalism.”

In fairness, the Brown Institute is not solely, or even primarily, an incubator. So far, its “Magic Grants”—prizes of up to $300,000 awarded annually to students, faculty members, and postdoctoral researchers in both schools—have gone to a wide array of proposals, many focused more on storytelling than on making money. The Reframe Iran project, for example, uses a new medium, called immersive video, to profile Iranian artists living in Iran and abroad.

This summer the institute sent 10 recent graduates of Columbia to a four-week camp at New York University’s Interactive Telecommunications Program, where they got to experiment with new technologies like the 3D-gaming device Oculus Rift. In future years the collaboration may turn into a jointly taught class between the schools.

Mr. Hansen says the broader goal is to create a place where journalism and engineering commingle. It’s a task he believes goes well beyond individual matchmaking.

“Maybe initially that’s how I conceived of it,” says Mr. Hansen. “But now I’m seeing the stakes are higher. It’s really about lowering the barriers between disciplines.” That, he says, involves testing new courses and curricula, in essence “rehearsing for the school how journalism education might function in the future.” He adds, “This is the moment where journalism begins to take on technology and data in a much more significant way.”

The venture also has strategic significance for Stanford, which has appeared eager to plant a flag on the East Coast. In 2011 it bid to build an applied-sciences campus on New York City’s Roosevelt Island before abruptly withdrawing its proposal late in the process.

Note: Avi Wolfman-Arent, a reporting intern in The Chronicle’s technology section, is a recent graduate of Columbia’s journalism school.

Categories: Teknoids Blogs

Of Woodsheds and Clients’ Social Media Habits

slaw - Mon, 07/21/2014 - 03:03

Here’s another post under the “social media law” umbrella—this time about what intelligible advice, if any, lawyers can bank on when it comes to directing their own clients to “clean up” social media accounts. It’s not the first time this has been canvassed here on Slaw, as John Gregory’s post from earlier this year attests, but since I recently prepared materials for a webinar on social media as evidence, and in the course of that started a trial run of X1 Social Discovery (which is what the Department of Justice, RCMP, and at least two major Canadian law firms are using to gather social media evidence), I thought I’d chime in. Much of the below is from an earlier blog I posted for Courthouse Libraries BC.

It would be nice if there were more explicit guidance for Canadian lawyers when it comes to telling clients to “clean up” their social media accounts. The Federation of Law Societies’ model Code of Professional Conduct says that a “competent lawyer” will go as far as the retainer demands “investigating facts, identifying issues, ascertaining client objectives, considering possible options and developing and advising the client on appropriate courses of action.” How far to coach a client on social media is a matter of nuance. The New York County Lawyers Association released an opinion directly on this issue, and it is worth a glance. John Gregory, in his post, linked to another blog with some more outrageous anecdotes from the US.

Simon Chester, in a 2013 article in Canadian Family Law Quarterly, encourages lawyers to advise clients to reset passwords and ensure privacy preferences as a matter of routine. After that, it’s better to “say nothing” through social media, since anything “will likely be read and assessed by an elderly male judge without a sense of humor.”

While posting marathon finish times on Facebook seems ludicrous when that same plaintiff aspires to establish bed-ridden victimhood, this type of thing happens a fair bit. Often the damage to credibility is done before the lawyer is involved, but it also happens where there is ignorance on the part of counsel about what clients are up to online. How one advises a client in these cases is a bit like how one coaches tightrope. Don’t lean too far one way or the other.

Some advice is clearly merited to avoid blind ruination of a case by ongoing oversharing, but spoliation should not be risked. In the Canadian case of Terry v. Mullowney, [2009] N.J. No. 86, the plaintiff scuppered his multi-million-dollar hopes when he attracted adverse inferences by hastily shutting down his public Facebook profile after various evidence of his partying, drinking and daily marijuana use didn’t fly so well at a cross-examination. Justice Adams observed:

[105] Without this evidence, I would have been left with a very different impression of Mr. Terry’s social life. He admitted as much in cross-examination. After he was confronted with this information which is publicly accessible, he shut down his Facebook account saying he did it because he didn’t want “any incriminating information” in Court. I draw an adverse inference against Mr. Terry on account of this statement and conclude that the Facebook account which he shut down and some particular messages which he deleted prior to shutting down the account entirely contained information which would have damaged his claim.

Then there is the other extreme of Beattie v. Beattie, 2013 SKQB 127, which begged for some kind of woodshedding by its end, although some initial timely advice in the manner prescribed by Simon Chester could have been enough. It is absolutely worth a skim. Mrs. Beattie proved her own undoing by handing the other side all it needed to debunk her claim for continued spousal support (based on need). The trier of fact could simply not accept Mrs. Beattie was among the working poor, at least not amid her incessant tweeting about Lexus convertibles, great philanthropy, symphony nights, esteemed sommeliers, spa treatments, and such. Cases like Beattie stand for the proposition that asking your client to vet postings (prior to posting them) is, at the very least, valuable if the aim is not to have your case utterly implode.

These cases also speak to the need for more tools that lawyers can use to track their clients on social media and investigate facts. There are many features that look promising within X1 Social Discovery, and I plan to post about them in another week or two after I’ve completed my trial of it.


Categories: Teknoids Blogs

Slaying the Internal Giants to Maximize Your Career

slaw - Sun, 07/20/2014 - 11:25

At the heart of ancient Palestine is the region known as the Shephelah, a series of ridges and valleys connecting the Judaean Mountains to the east with the wide, flat expanse of the Mediterranean plain. It is an area of breathtaking beauty, home to vineyards and wheat fields and forests of sycamore and terebinth. It is also of great strategic importance.

This is how Malcolm Gladwell begins his new book, released last fall, David and Goliath.

The Shephelah, Gladwell notes, was where John Hyrcanus of the Maccabees fought the Seleucid Empire (he calls “Syria”), before forcibly converting the inhabitants to Judaism. This is where Saladin camped and confronted the Crusaders, before his conquest of Jerusalem. But it’s also where David fought Goliath, and won, and where Gladwell gets the title of the book.

“David and Goliath,” Caravaggio, 1599

The Shephelah is what divides Jerusalem from Gaza in modern geopolitics, and is therefore an area currently under different pressures these days. Gladwell uses conflict in this book to explore challenges in life, and how being an underdog can change people, often for the better. Gladwell also challenges all of the notions of “giants,” or challenges which we face in life,

The battle is won miraculously by an underdog who, by all expectations, should not have won at all. This is the way we have told one another the story over the many centuries since. It is how the phrase “David and Goliath” has come to be embedded in our language—as a metaphor for improbable victory. And the problem with that version of the events is that almost everything about it is wrong.

Gladwell explains how Goliath was expecting to be challenged by another warrior in hand to hand combat, and not by an experienced slinger. The sling, far from being an inferior weapon, was capable of projectiles equivalent to modern handguns. Gladwell then quotes Robert Dohrenwend in The Sling – Forgotten Firepower of Antiquity,

Goliath had as much chance against David as any Bronze Age warrior with a sword would have had against an [opponent] armed with a .45 automatic pistol.

Goliath also likely suffered from acromegaly and as a result had impaired vision, a limitation that his opponents were probably oblivious to. David had simply used strategy to overcome his perceived disadvantages in place to ensure success. Gladwell points to an essay by Moshe Dayan, Israeli minister of defense during the 1967 Six-Day War, who said,

David fought Goliath not with inferior but (on the contrary) with superior weaponry; and his greatness consisted not in his being willing to go out into battle against someone far stronger than he was. But in his knowing how to exploit a weapon by which a feeble person could seize the advantage and become stronger.

Gladwell argues that we continue to make erroneous assumptions about what is powerful and continue to misjudge and miscalculate the abilities of those around us.

In Chapter 3 he jumps to 19th century France. A group of independent painters deliberated whether they should conform their style to a norm in order to gain acceptance, and presumably prosperity, or whether they should continue to violate the rules of academic painting for their time, employing “impressionist” techniques which many in the public considered amateurish. They debated this question while living in poverty and near total exclusion from the Paris Salon. This could be characterized as the following dilemma:

Did they want to be a Little Fish in the Big Pond of the Salon or a Big Fish in a Little Pond of their own choosing?

… We strive for the best and attach great importance to getting into the finest institutions we can. But rarely do we stop and consider—as the Impressionists did—whether the most prestigious of institutions is always in our best interest.

Édouard Manet’s Olympia (1863), one of the few early Impressionist paintings to be accepted to the Salon.


Gladwell characterizes the dichotomy of the Salon and a solo show as not just a choice between a best and a second-best option, but a choice between two very different options. He applies this to choices made to attend one of two different universities, who may have very different things to offer. An Ivy League school is like the Salon, but the Salon was a very big pond which accepted thousands of paintings. It was nearly impossible for your submission to be seen unless it met unanimous approval by the reviewers.

We can also extend this analogy to the choice between big law and small/solo practice. One is a “giant,” but it’s not always clear which one that is. The strengths and drawbacks of each are not necessarily obvious, and the choices are very different. Displays are not lost in the crowd in the small pond of a solo exhibition because every artist, or lawyer, is treated is an equal. More importantly, small ponds are places where innovation and individuality are often fostered and encouraged, and where a niche can develop.

Law students also typically face this dilemma. Strong performers throughout their undergraduate career, and often before, they quickly find in law school that they are no longer necessarily the smartest and most talented. This can come as a huge blow to the ego and quickly spiral into inferiority complexes and reactive behaviour, a phenomenon described as relative deprivation.

Our sense of deprivation through any measure, including success, financially, lifestyle, or prestige, is not based in a global context but rather by comparing ourselves relatively to others who are similarly situated. In academia this is referred to as the “Big Fish–Little Pond Effect.”

Gladwell states,

Citizens of happy countries have higher suicide rates than citizens of unhappy countries, because they look at the smiling faces around them and the contrast is too great. Students at “great” schools look at the brilliant students around them, and how do you think they feel?

…The more elite an educational institution is, the worse students feel about their own academic abilities…

…And that feeling—as subjective and ridiculous and irrational as it may be—matters. How you feel about your abilities—your academic “self-concept”—in the context of your classroom shapes your willingness to tackle challenges and finish difficult tasks. It’s a crucial element in your motivation and confidence.

The career route most often promoted by Canadian law schools is that students should begin their legal career in the largest, most prestigious law firm they can find. They know full well that only a small fraction of articling students in these firms will ever make partner, but its presumed that this is the best environment to learn the discipline and work ethic, and create the foundation for career in a smaller firm or solo practice.

The relative deprivation effect, and its corresponding result on the sense of worth for young lawyers, would suggest otherwise. In fact the positive effects of elite schools, elite professions, or elite firms are probably better observed by the parents of these individuals than it is by their children placed in these situations.

Gladwell explores how this relative deprivation effect actually affects people in the academic world by looking at John P. Conley and Ali Sina Önder’s study on graduate research papers, which appears in “An Empirical Guide to Hiring Assistant Professors in Economics.” They conclude that the top students from what are considered “mediocre” schools almost always perform better in volume of publications than good students from the very best schools. Gladwell’s commentary on this study has implications for those in legal recruitment and retention,

Are you better off hiring a Big Fish from a Tiny, Tiny Pond than even a Middle-Sized Fish from a Big Pond? Absolutely.

…The Big Pond takes really bright students and demoralizes them.

Ironically Gladwell relates the story of others in promising fields such as science and physics, who we so demoralized by their educational environment that they became lawyers instead,

We take it for granted that the Big Pond expands opportunities, just as we take it for granted that a smaller class is always a better class. We have a definition in our heads of what an advantage is—and the definition isn’t right. And what happens as a result? It means that we make mistakes. It means that we misread battles between underdogs and giants. It means that we underestimate how much freedom there can be in what looks like a disadvantage. It’s the Little Pond that maximizes your chances to do whatever you want.

The closing of David and Goliath is just as dramatic as its opening. Gladwell returns to France, this time during WWI, where a small Huguenot village in the south-east, Le Chambon-sur-Lignon, resisted efforts of the Vichy government to round up Jews. When the Vichy minister of youth affairs, Georges Lamirand, visited the town in 1942 with the intention of setting up youth training camps, the townspeople delivered him a letter, sent by a group of children, which stated,

We feel obliged to tell you that there are among us a certain number of Jews. But, we make no distinction between Jews and non-Jews. It is contrary to the Gospel teaching. If our comrades, whose only fault is to be born in another religion, received the order to let themselves be deported, or even examined, they would disobey the order received, and we would try to hide them as best we could.

Or as Gladwell states, “We have Jews. You’re not getting them.”

The point that Gladwell makes is that once again the powerful are not as powerful as they seem, and the weak are not as weak as they appear. Le Chambon-sur-Lignon had no independent military power capable of resisting the Vichy government, but they had developed generations of resilience from resisting persecution by the Catholic church. Huguenots who valued their own self-interests had already converted to another faith or moved away a long time ago. Those left were characterized by stubbornness and defiance,

It was not the privileged and the fortunate who took in the Jews in France. It was the marginal and the damaged, which should remind us that there are real limits to what evil and misfortune can accomplish.

If you take away the gift of reading, you create the gift of listening. If you bomb a city, you leave behind death and destruction. But you create a community of remote misses. If you take away a mother or a father, you cause suffering and despair. But one time in ten, out of that despair rises an indomitable force. You see the giant and the shepherd in the Valley of Elah and your eye is drawn to the man with the sword and shield and the glittering armor. But so much of what is beautiful and valuable in the world comes from the shepherd, who has more strength and purpose than we ever imagine.

Lawyers who struggle along in small and solo practices, or those growing increasingly frustrated with the turmoils and challenges of big law, are all developing a resilience which can only help them further in their careers if properly channeled.

You are all giants in their own right. You have strength which others have not yet even realized.

Plaque at Yad Vashem dedicated to the inhabitants of Le Chambon-sur-Lignon.


Categories: Teknoids Blogs

Summaries Sunday: Maritime Law Book

slaw - Sun, 07/20/2014 - 06:00

Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.

This week’s summaries concern:
Conflict of Laws / Libel and Slander / Criminal Law / Evidence / Civil Rights

Rodrigues v. Rodrigues 2013 ABQB 718

Conflict of Laws – Damages - Injunctions – Libel and Slander – Practice

Summary: The plaintiff, a parish priest in Calgary, Alberta, sued for damages for defamation. The defendant, a lawyer in Goa, India, was noted in default. The Alberta Court of Queen’s Bench awarded the plaintiff $75,000 for general damages and $50,000 for aggravated damages, granted injunctive relief and ordered the defendant to pay solicitor and client costs . . .

R. v. Omeasoo (J.I.) 2013 ABPC 328

Criminal Law – Evidence – Police

Summary: Two aboriginal offenders (Omeasoo and Okeynan) were charged with minor offences and released from police custody on condition that they abstain from the consumption of alcohol. Each was an alcoholic. Each failed to comply with that condition and was charged with breaching the undertaking (Criminal Code, s. 145(5.1)). In separate summary conviction proceedings, each pled guilty. The Alberta Provincial Court sentenced Omeasoo to one day of imprisonment. Okeynan was sentenced to pay a . . .

R. v. Croft (J.C.) 2013 ABQB 640

Civil Rights – Criminal Law – Statutes

Summary: The accused were charged with a variety of mainly drug offences. In the police investigation leading to the charges, 12 production orders were issued pursuant to s. 487.012 of the Criminal Code. The orders were addressed to three telephone service providers. Each order required the service provider(s) to produce to a named RCMP officer all incoming and outgoing call details (telephone records) and text messages for cellular phones identified in the order, . . .

Categories: Teknoids Blogs

Summaries Sunday: SOQUIJ

slaw - Sun, 07/20/2014 - 06:00

Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

RECOURS COLLECTIF : Le recours collectif des abonnés de Bell Canada et de Bell ExpressVu à qui l’on a facturé des frais obligatoires supplémentaires ou des tarifs supérieurs à ceux qui leur avaient été indiqués pour leurs services est autorisé.

Intitulé : Charland c. Bell Canada, 2014 QCCS 2667
Juridiction : Cour supérieure (C.S.), Montréal, 500-06-000572-111
Décision de : Juge Guylène Beaugé
Date : 9 juin 2014

RECOURS COLLECTIF — procédure — autorisation — consommateurs — Bell Canada — Bell ExpressVu — service de télévision — Internet — téléphonie — service résidentiel — pratique de commerce interdite — protection du consommateur — publicité trompeuse — déclaration fausse ou trompeuse — frais supplémentaires — frais non divulgués — composition du groupe — exclusion des personnes morales — clause d’arbitrage — apparence de droit — intérêt juridique — règle de la proportionnalité.

Requête pour autorisation d’exercer un recours collectif. Accueillie en partie.

Les requérants désirent être autorisés à exercer un recours collectif au nom des personnes qui ont conclu un contrat de service de téléphonie résidentielle, d’Internet ou de télévision auprès des intimées (Bell) entre le 1er décembre 2007 et le 29 juin 2011. Les requérants soutiennent que Bell a fait des déclarations fausses ou trompeuses visant la promotion de ses services, à savoir la mention de prix inférieurs à ceux facturés. Ils reprochent également aux intimées leur omission d’indiquer tous les frais supplémentaires facturables.

Premièrement, les faits allégués paraissent justifier les conclusions recherchées. En effet, le recours de la requérante Charbonneau Daneau ne diffère pas fondamentalement de celui des autres requérants, car il s’appuie sur le même comportement commercial de Bell. Le fait qu’elle se présente comme une victime des procédés douteux de Bell déployés à l’occasion d’une visite à domicile de son représentant plutôt que dans une publicité ne change pas la nature du recours, qui vise les annonces trompeuses, peu importe leur forme. Par ailleurs, l’évaluation du préjudice des membres du groupe ne donnera pas lieu pour chacun à une preuve particulière du service contracté et de la publicité y associée. En effet, la réclamation se limite à des dommages-intérêts compensatoires et à des dommages-intérêts en troubles et inconvénients. Quant à la réclamation en dommages exemplaires pour chaque membre du sous-groupe de consommateurs, cette question, qui devra être analysée au fond, est commune à tous les membres se qualifiant à titre de consommateurs au sens de la Loi sur la protection du consommateur. Dans ces circonstances, la règle de la proportionnalité est respectée. Toutefois, le critère énoncé à l’article 1003 a) du Code de procédure civile (C.P.C.). n’est pas rempli quant aux personnes morales puisqu’une clause d’arbitrage s’applique à celles-ci en cas de différend. Deuxièmement, tel qu’il est énoncé dans Richard c. Time Inc. (C.S. Can., 2012-02-28), 2012 CSC 8, SOQUIJ AZ-50834275, 2012EXP-836, J.E. 2012-469, [2012] 1 R.C.S. 265, il ne suffit pas qu’une personne se soit trouvée exposée à une publicité trompeuse pour disposer de l’intérêt juridique requis afin d’entreprendre un recours en vertu de la Loi sur la protection du consommateur: encore faut-il qu’elle en ait été victime. En l’espèce, Charland, qui était cliente de Bell avant les faits reprochés, n’a pas modifié son forfait à la suite de la prise de connaissance de la publicité trompeuse durant la période visée par le recours. Quant à Hornbrook, ses allégations vagues, générales ou imprécises au soutien de sa réclamation ne permettent pas de conclure à une apparence de droit. Par ailleurs, aucun des requérants n’allègue un lien de droit avec Bell Mobilité. Toutefois, le fait que les requérants choisissent de limiter leur réclamation à titre de dommages compensatoires à un dollar ne rend pas pour autant leur préjudice non susceptible d’évaluation. D’autre part, la classe nationale se justifie en raison de l’apparente uniformité dans les éléments essentiels des lois au Canada en matière de protection du consommateur. En conséquence, le critère édicté à l’article 1003 b) C.P.C. est rempli, sauf quant aux requérants Charland et Hornbrook ainsi qu’à Bell Mobilité. Enfin, Charbonneau Daneau possède la qualité requise pour agir à titre de représentante des requérants.

Le texte intégral de la décision est disponible ici

Categories: Teknoids Blogs

Law Schools, Technology, and Access to Justice Conference, 17-19 July 2014: Storify and resources

Legal Informatics Blog - Sun, 07/20/2014 - 03:15
Categories: Teknoids Blogs

New project: Castan et al.: Social Media in Legal Education

Legal Informatics Blog - Sun, 07/20/2014 - 03:12

Melissa Castan, Kate Galloway, Melissa de Zwart, and Kristoffer Greaves have begun a new project called Social Media in Legal Education.

The project’s Website is at: http://socialmediainlegaleducation.com/

The project’s Twitter account is: @SocMedinLegalEd

Here is a description of the project, from the project’s About page:

S|M| i |L|E (Social Media in Legal Education) is a collaborative project commenced by legal education academics: Melissa Castan, Kate Galloway, Melissa de Zwart, and Kristoffer Greaves.

The project aims to promote and support the integration of social media into legal education. To begin, we curate resources, to support academics, early career researchers, higher degree by research students, law students, and legal practitioners.

In the future we will invite guests to contribute posts about their knowledge, experiences, and plans, regarding social media in legal education. [...]

HT @MsCastan

Filed under: Applications, Projects, Technology developments, Technology tools Tagged: Kate Galloway, Kristoffer Greaves, Legal educational technology, Legal instructional technology, Legal scholarly communication, Legal social media, Melissa Castan, Melissa de Zwart, SMiLE, Social media and law, Social media and legal scholarly communication, Social media in legal education
Categories: Teknoids Blogs

Davis: Covering the United States Supreme Court in the Digital Age

Legal Informatics Blog - Sun, 07/20/2014 - 02:53

The following forthcoming book on legal journalism may be of interest to our readers:

Richard Davis (ed.), Covering the United States Supreme Court in the Digital Age (Cambridge University Press, 2014).

Here is the publisher’s description:

The U.S. Supreme Court seeks to withhold information about its deliberations, while the press’s job is to report and disseminate this information. These two objectives conflict and create tension between the justices and the reporters who cover them; add to that the increasing demands for transparency in the digital age and the result is an interesting dynamic between an institution that seeks to preserve its opaqueness and a press corps that demands greater transparency. This volume examines the relationship between justices and the press through chapters that discuss facets such as coverage of the institution, the media’s approach to the docket, and the effects of news coverage on public opinion. Additionally, two journalists who cover the court offer insights into the profession of reporting today, while two biographers of Supreme Court justices share the perspectives of those justices regarding the press.

Filed under: Articles and papers, Chapters, Monographs Tagged: Cambridge University Press, Covering the United States Supreme Court in a Digital Age, Legal communication, Legal journalism, Media coverage of courts, Media coverage of justice administration, Media coverage of the judiciary, Richard Davis, U.S. Supreme Court
Categories: Teknoids Blogs

Law Blog Week in Review: Unethical Marketing, Quick Writing Fixes, & Email Disclaimer Trolling

The Lawyerist - Sat, 07/19/2014 - 06:12

Each weekend, I round up the best law blog posts I have found during the previous week. You can help by sending me links using our contact form, starting discussions in the Lab, or tweeting the link to @lawyerist. Or just tell me what I missed in the comments.

A Solo Practitioner’s Manifesto

This “Why I Went Solo” post from Canadian lawyer Vince Wong is a pretty great answer to those who buy into the myths about solo practice. [VW Law]

Law Firms, the “Soft Underbelly” of Data Security

It’s true. We are the weakest link. Frank Strong offers some tips for being less soft and weak. [Business of Law Blog]

“I don’t think these people … intend to be dishonest. I just think they don’t get it.”

Rick Horowitz perfectly describes a lot of lawyers online, whether the subject is blogs, Avvo, or just about any other form of online marketing used by lawyers. [Probable Cause]

Three Quick Writing Fixes
  1. Look for that and eliminate it if the sentence makes sense without it. (This is a pet peeve of mine.)
  2. Look for of, because it often indicates extraneous words.
  3. Look for in, for the same reasons.

For a more detailed explanation and more tips, see Steven Taylor’s post. [Attorney at Work]

Find Well Settled Law

The essential premise of WellSettled.com, written up by Bob Ambrogi, is pretty simple: scoop up all instances of a judge writing things like “it is well settled that …” or “it is well established that …” in opinions. It’s like a legal research shortcut so you don’t have to assemble your own string cites from scratch. [LawSites]

Trolling with Email Disclaimer

I wanted to post an excerpt of the amazingly stupid email disclaimer Mark Bennett posted, but you really should just read the whole thing. Here is a sample that does not do it justice:

If you are the intended recipient or receive this communication intentionally by the intended recipient, subject to Texas Rule of Evidence (including rule 408) you are granted express consent to disclose, copy, and/or distribute this communication. In return, you agree to not alter it, for example, by removing any of these disclaimers. In violation thereof, you agree to (1) be personally liable for a minimal of $15,000 in liquidated damages, reasonable attorney fees, and court costs in collecting these damages

Note: Email disclaimers are pretty pointless, period. This one goes well above and beyond pointless. [Defending People]

Investors Are Betting on Legal Tech

When Clio announced its $18 million investment, it was exciting for legal tech, but it was also an outlier. Now NetDocuments has raised $25 million, which looks more like it could be the beginning of a trend. [LawSites]

Featured image: “Businessman in a suit holds wrench” from Shutterstock.

Categories: Teknoids Blogs

The Right to Be Forgotten vs the Streisand Effect

slaw - Fri, 07/18/2014 - 16:55

It has always been a challenge in suing someone for defamation that the lawsuit may draw more attention to the defamation than it had previously obtained. A fortiori in cyberspace… This seems to have happened (again) recently in France, where a restaurant’s suit against a critic whose negative review featured high in Google’s search results about the restaurant has now replaced the review in the rankings… “In typical Internet style, Google searches for the restaurant now prominently feature articles about it suing [the author].“

The exercise of a right to be forgotten in Europe under the CJEU’s ruling on the point has the advantage to the defamed person that the nasty links can be suppressed from search results privately, by application to the search engines, rather than in a public court battle. Making such applications is described as a ‘new service industry’.

Would the fact of suing for defamation (or of being defamed) be sufficiently a matter of public interest that one would not have the right to have that fact ‘forgotten’ by the search engines? Would one have to wait for some years for the dust to settle (if not the suit itself) before any such ‘right’ could be exercised?

It has been suggested to me that the CJEU’s decision does not itself refer to any ‘right to be forgotten’, and it required only that the name of the applicant be removed from the search results, and not the entire link to the original online newspaper articles – so if one were searching by other details than the name of the applicant, the articles would still show up in the search.

I understand the desire to limit interference with access to information, but does this make sense as a matter of privacy law (which was what was being interpreted in the CJEU’s decision)? If that law applies to personally identifiable information, i.e. information that is capable of being linked to an individual, then producing the story by a search of the details is not much more respectful of privacy than a search of the person’s name directly. That’s particularly true when the name is in the stories that one finds by the search…

Categories: Teknoids Blogs

Information Quality Resources

LLRX - Fri, 07/18/2014 - 15:13
Marcus P. Zillman's guide focuses on the increasingly important topic of identifying reliable and actionable Information resources on the internet, a task specifically critical for researchers in all sectors. With the proliferation of non attributable, un-vetted, un-sourced information churning 24/7 through a spectrum of social media sites, getting it right takes time and skill, but is well worth the effort.
Categories: Teknoids Blogs

My Twitter Digest for 07/17/2014

<CONTENT /> v.5 - Fri, 07/18/2014 - 14:30
Categories: Teknoids Blogs

Should You Build a Data Center Today? 2 Universities, 2 Answers

The Chronicle Wired Campus - Fri, 07/18/2014 - 13:20

When it comes to building campuses from scratch in the information age, few institutions have a track record like New York University’s. Under its current president, John E. Sexton, NYU has opened campuses in Abu Dhabi and Shanghai. In 2012 it earned New York City’s backing for a new graduate-level institute in downtown Brooklyn.

While in New York recently to cover Cornell Tech and its ambitious plans to build an applied-sciences graduate school on Roosevelt Island, I asked members of New York University’s IT brain trust how they’ve approached similar challenges. Many of their responses mirrored what I heard at Cornell Tech: Don’t focus on individual technologies. Make flexibility a priority. Keep a long-term outlook, even if all the eyes will be on opening day.

Those are principles, though. Some might call them platitudes. What universities actually do often reveals the hard choices embedded in such broader values.

Take data centers, those server-stuffed behemoths that have long been fixtures of campus architecture.

Cornell Tech will not build a data center for the Roosevelt Island campus. That was a major decision, one that seemed to both excite the director of IT, Scott Yoest, and worry him. Cornell Tech figures it can bank on the growing cloud-computing sector to handle its data-storage and research-computing needs. And, by forgoing a data center, Cornell Tech can limit its cost and its energy consumption.

NYU, though, will be building a “multi-petabyte storage facility” alongside its 150,000-square-foot campus in Brooklyn. The university’s IT staff believes the cloud-computing sector won’t expand fast enough to accommodate the voracious data needs of its new institute.

“In our sector there’s not enough market to make it affordable for commercial vendors to provide what we need when we need it,” says Marilyn McMillan, NYU’s vice president for information technology. Adds Thomas Delany, vice president for global technology, “We can’t wait 10 years for the commercial providers to address our vertical. We can’t wait.”

NYU’s new Brooklyn institute, the Center for Urban Science and Progress, is predicated on analyzing big data sets, often highly sensitive ones provided by government agencies. Computing speed and privacy will be paramount. Cornell Tech has more of a start-up bent. It’s less likely that faculty members will be calling on Mr. Yoest to move massive chunks of data or run the kind of burdensome computing exercises typical of a computer-science department. In the event they do, Mr. Yoest says, Cornell Tech can either co-locate with an industry vendor or call on resources at Cornell’s main campus, in Ithaca, N.Y.

Both institutions are looking forward. Cornell wants to capitalize on the growing capacity of the cloud to ease an old burden and increase future flexibility. NYU is measuring that same growth against how its needs will evolve. The disparity in solutions highlights a philosophical debate more and more IT departments in higher education will have to tackle: Is it better to live in the cloud or to keep some of your data nailed to the ground?

Categories: Teknoids Blogs

Hacking Chaos: The Cornell Method of Note-Taking

The Lawyerist - Fri, 07/18/2014 - 06:12

Taking notes by hand is better than typing notes, because it forces you to slow down and focus on what is important. Slowing down greatly increases your understanding of information, which is why you need to become better at note-taking.

That’s where the Cornell Method comes in. The Cornell Method has you separate your notes into note-taking portion, key points, and a summary. And it is ideal for lawyers.1

Setting Up the Cornell Method

It is absurdly simple to arrange your notes in the Cornell fashion. Take your standard legal pad and draw a thick vertical line down the left-hand side of the paper approximately 2-3 inches from the side of the page. Then draw a horizontal line all the way across the paper about two inches from the bottom of the page. You’ll end up with something like this.

If this line-drawing strikes you as too daunting or ugly, you can design one in seconds online and print it on any old paper you’d like. You can also purchase Levenger pads optimized for the Cornell Method.

There. You’re all done getting ready to take notes Cornell-style. Easiest life hack prep ever.

The Structure of the Cornell Method

Dividing your paper gave you three sections. The largest one is your note-taking section, the left-hand margin is your key points/key questions section, and the bottom is your summary.

Opinions differ wildly on what should happen with your notes section. Some people — particularly those that recommend it as a college study tool — subscribe to a fairly elaborate set of rules about recording, reciting, reflecting, and reviewing. You probably don’t need to go that deep. However, there’s one principle that should guide you if you’re going to take notes using the Cornell Method, write less not more. If you’ve gotten used to taking notes on a laptop, you are already guilty of writing down too much stuff. Treat your notes section like an outline. Shoot for key points, not a verbatim transcript. Think of that section as an outline you will return to later, after your lecture or meeting or motion hearing has finished.

The left-hand margin is your cue/recall section. When you’re using Cornell as an academic note-taking method, the cue functions as a memorization and comprehension tool. You should be able to cover up your notes section, and answer any questions you posed to yourself in the cue section. You probably aren’t going to need to do that with your notes. Depending on what you are taking notes, this section can contain a series of questions, a roundup of notable points, or, to get all business-speak, action items. You should be able to throw your entire notes section away and walk out of your meeting, hearing, or lecture with the key ideas intact. If you are the kind of person who likes to distill your oral arguments down to one notecard, this will seem pretty familiar.

The summary at the bottom is exactly what you would expect — a quick summary of the notes on that page. Internet nerds differ on whether you should do that right when you are done taking notes or after you’ve reviewed them. I tend to summarize right away, because otherwise that summary section sits alone and unloved forever.

How the Cornell Method Works For Me

It isn’t an exaggeration to say that the Cornell Method helps me in every note-taking situation I have encountered in my professional life.

In meetings, I use it to easily call out follow-up items by dumping them in the cue section. This can be anything from a statute I need to look up to a call I need to return. Pulling those to-do items and reminders out of the main text of the notes really highlights them. Every time I fall in love with a new type of notebook that doesn’t have the Cornell margin, I go back to trying to just circle, underline, or highlight my follow up items and two things happen. First, my notes look like an utter mess, and second, I can’t easily find the things I want to do just by glancing at the page.

Pulling your next steps/to dos/action items over into the left-hand column also works well if you like to reduce your notes to an actual to-do list that you put on an index card, in a computer file, or a fancy Getting Things Done tickler file, because that left-hand column is now functionally your list of next actions. In meeting situations, the summary usually ends up being nothing but the date, time, purpose, and attendees of the meeting, but even that can be helpful, as it gives me a way to file the notes easily.

When I am listening to someone else talk for any length of time, whether an opponent in court or speaker at a CLE, being forced to organize my notes Cornell-style on the fly means that I am actively engaged and listening. If I don’t take handwritten notes, my mind drifts, and suddenly I’ve missed everything. Here, I use the notes section to force me into keeping a cohesive outline, even if the speaker wanders around a bit (as lawyers often do).

Then I use the recall section to break out big-picture points I’m going to address and key questions I’d like to ask. Again, pulling those things out of the notes section cleans up my notes visually, and creates a quick mini-outline that I can refer to quickly.

The arena in which I’ve definitely found the Cornell method most helpful is in organizing my own teaching notes. The notes section covers the main points of my lecture in an outline and forces me to stay on task. The recall section is my dumping ground for everything I can’t deal with in my notes without things getting messy. Questions I plan on asking appear there, linked to whichever part of the lecture they’re related to. Reminders to myself also go there when I’m re-reading notes before getting up to speak. Notes on sources, if I need to mention those, go in the side margin as well.

With that wide Cornell margin, my teaching notes last three or four semesters instead of one. This is because I’m able to use that recall section to highlight key changes I want to make next time I present the material. Finally, the summary functions like the tagging function in Evernote. I’ve got the week of the semester the lecture occurs, the name of the class, the major topics I’m covering that week, and a page number. This way, when I’ve hopelessly shuffled and reshuffled the pages while speaking, I can easily put them back together again when I’m done (or let’s be honest, mid-lecture).

If you are hopelessly disorganized like me, but wish you were an organized person hacking your own tendencies towards chaos, you really can’t go wrong with taking your notes by hand using the Cornell Method to force you into a specific but flexible note-taking framework. All my notes — meeting notes, lecture notes, deposition notes — look and function the same, which means I always know where to put information when I am writing, and I always know how to find information when I’m reviewing later.

The Cornell Method is the only productivity tool that has stuck with me for more than a year, and I’m never giving it up.

  1. I didn’t pursue the Cornell Method as some sort of lifehack or magic productivity enhancer. I stumbled upon it because I wanted some really nice legal pads. Well before law school, I’d developed a completely unnecessary fondness for the Levenger catalog, which carried within its pages nice pens, some lap desks, and some legal pads that cost approximately five times any other legal pad I’d ever seen. The catalog waxed rhapsodically about the weight of the paper and the smooth as silk feel you’d have writing on it with your fountain pen, but never explained the weird huge margin at the left hand side. I figured I’d live with that, and plunked down $25 in 2001 dollars for a five-pack. That large left-hand margin turned out to be my introduction to the Cornell Method, and I’ve been a devotee and an evangelist ever since. 

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