One of my favourite Valentine’s Day cartoons shows a lawyer dumping a box of randomly-addressed cards into a mailbox hoping to drum up some business for himself. The Ashley Madison hack is that in real life, and what a surprise it is!
Heads have already begun to roll; the ever-reliable BuzzFeed reports that Josh Duggar (yes, that Duggar) has confessed to a membership and has published staff rapporteur Ellen Cushing’s blow by blow confrontation, via text, with her cheating ex. The revelations, of course, don’t stop there. The Canadian Press, in an article posted on CBC’s website, says that the leaked data discloses:
In another article, CBC says that a whopping 189,810 users were registered from Ottawa, which, with a population of barely five times that number, makes the city “No. 1 for philanderers in Canada.” Thousands more users were registered from Washington, DC according to The Hill, which makes one wonder whether there’s something about capital cities which makes them inherently dull.
Thankfully, CBC also reports that brave Ottawa resident Eliot Shore has stepped forward as the representative plaintiff in a class-action suit led by Charney Lawyers and Sutts, Strosberg. The law firms’ press release graciously invites “former and current users” to contact either firm in “strict confidence and anonymity.” Hopefully the law firms’ servers are better secured than those of Ashley Madison.
Salacious hand-rubbing aside, the hack suggests something rather profound about human nature. According to CNN, the hackers claim to have posted the records of 32,000,000 users; the Ashley Madison website itself claims a membership of more than 39,000,000. Now I frankly don’t care about how or why people have affairs, and neither does the law since the introduction of the no-fault Divorce Act in 1985, but the sheer number of people involved in just this one hook-up website is extraordinary, and I question what the hack says about the human capacity for monogamy.
It’s not clear to me that monogamy is intrinsically good or something that people are hardwired to accommodate; it is indeed something with which I have struggled. Although monogamy most certainly is an artifact of Catholic dogma and the proscriptions of the Pentateuch, the increasing prevalence of stable, child-rearing polyamorous relationships in Western society intimates that it perhaps is not a necessary ingredient of meaningful, productive, long-term relationships between consenting adults.
Sadly, the bump in lawyers’ business resulting from the hack is likely going to be a highly conflicted bump, precisely because expectations of monogamy are endemic to North America and grossly obdurate. As I wrote in an earlier post, “Rethinking Family To Reduce Conflict,”
“It seems to me that the contortions into which family law twists itself largely result from efforts to address, accommodate and anticipate the vast array of psychosocial factors involved in family values and family breakdown. I wonder about the extent to which fault for these factors can be laid at the doorstep of certain social norms, especially the presumption that family relationships are enduring, fidelitous and either monogamous (a married relationship between two persons) or diamorous (an unmarried relationship between two persons). Specifically, I wonder about the extent to which the inability of existing processes to manage the process of family breakdown, and the difficulty of planning alternative processes, is attributable to the sequelae of conventional attitudes toward ‘family’. I further wonder whether changing those norms might resolve some of the more difficult aspects of adult conflict and promote a more child-centred approach to the resolution of their parents’ disputes. …
“I suspect that there are a number of important interrelationships between toxic reactions to separation and the circumstances that aggravate those reactions, on the one hand, and, on the other, social norms which stipulate that committed relationships be monogamous or diamorous in nature, heteronormative stereotypes and certain social baggage relating to gender roles and inequality between women and men. There are, for example, specific cultural values that support imbalances of power in opposite-sex relationships (parenting norms, women’s economic inequality) and exacerbate fears of external interference with the family unit (inviolability of the family unit, hypersexualization of women), and thus promote feelings of jealousy, possessiveness and a need for dominance which in turn support coercive and controlling behaviour.”
A golden age is indeed nigh, but it’s likely to be extraordinarily unpleasant for all involved.
I won’t go further into this line of thinking, you can torment yourself by reading the original post if you wish, but the Ashley Madison hack seems to reveal a fundamental weakness of the social norms supporting monogamy. If so many of us can’t or aren’t interested in accommodating exclusive romantic relationships, perhaps it’s time for us as a society to be more embracing of alternative arrangements, ranging from the sort of open but binary relationships websites like AdultFriendFinder and SeekingArrangement seem to be designed for, to more enduring polyamorous relationships. I suspect that family law disputes would be far less destructively adversarial as a result.
As I concluded in that earlier post, it seems to me that a cultural attitude more embracing of polyamory and less insistent on monogamy, might be “less likely to accommodate jealousy or possessive attitudes, power imbalances, controlling and coercive dynamics, or emotional, mental or economic abuse, in all families, whether diamorous or polyamorous.” Such an attitude, I speculated,
“… would be more likely to promote a holistic view of parenting, and the other responsibilities involved in family relationships, while preserving the independence, self-determination and self-interest of the individual adults. It would be more likely to encourage child-centred thinking, ensure that an adult’s relationship with and obligations to a child did not end upon leaving the cohabiting family, and give children a critical continuity of care, regardless of how their family has changed. It would be more likely to promote positive communication skills and minimize the negative fallout when one or more adults leave the cohabiting family. It would be more likely to improve adults’ capacity for empathy, to improve conflict resolution skills and to reduce family members’ need to resort to courts to resolve family disputes.”
Is it perhaps time to adapt to the frailties of human nature and reconsider our compulsion toward monogamy?
Se we learned a while ago that an unwarranted percentage of lawyers are essentially high-functioning psychopaths. You might be telling yourself you dodged that psychopath bullet because you are just not that awful. You are nice to your spouse, children, kittens, stray dogs, etc. It is just at work that you are a ball of stress and anger. Well, guess what? Your jerkiness is literally turning the people around you into jerks as well.
Encountering rude behavior at work makes people more likely to perceive rudeness in later interactions, a University of Florida study shows. That perception makes them more likely to be impolite in return, spreading rudeness like a virus. […]
Just like those who experience rudeness firsthand, people who witness it were more likely to be rude to others. When study participants watched a video of a rude workplace interaction, then answered a fictitious customer email that was neutral in tone, they were more likely to be hostile in their responses than those who viewed a polite interaction before responding.
So, next time you are wondering why everyone in your office is just so hostile and rude, look within yourself, young Padawan, and see if you are a jerk.
Featured image: “Big Boss screaming to businessman” from Shutterstock.
Science Proves Jerk Lawyers Beget More Jerk Lawyers was originally published on Lawyerist.
For the next while the Friday Fillip will be a chapter in a serialized crime novel, usually followed by a reference you might like to pursue. Both this chapter of the book and the whole story up to this point can be had as PDF files. You may also subscribe to have chapters delivered to you by email.
Dominic Archer looked to be one of the hearty sort — tall, plump, rubicund, moving with a bounce. His bald head shone under the spots in the motorhome like an outsize incandescent light bulb. But he had a nervous twitch at the corner of his mouth and his fingers fluttered sporadically for no reason. A tyler keeps things in, Rangel thought. Keeps things in order. That’s what a tyler does. Keeps out the idly curious, the interloper, the invader. Makes safe.
“Let’s go outside,” she said to him. “I could use some air. We can talk while we walk. How’s that?” For all her bluster to Mitman earlier in the day, she was getting creeped out by the thought that her office might be bugged.
Relief showed on Archer’s face. “Yes,” he said. “It’s gotten cold,” he added, “you’ll need to bundle up.” Rangel smiled and thought of a big sheepdog. Make safe, keep safe.
They ambled for a couple of blocks in silence, until they had found a comfortable matching of strides. Archer had been right about the weather: it was scarcely above freezing, and the occasional gust made it feel even colder. Rangel put on her gloves and popped the collar of her coat. Archer seemed glad of the chill. He kept rolling his shoulders and flapping his open jacket.
“You know, of course,” said Rangel in a matter-of-fact voice, “that I represented Julius Sanders at his trial. And you know that Alexandre Goncourt talked to me a little bit about Sanders and you and himself as members of the Buffaloes. Without putting words in his mouth, I think it’s fair to say that Mr. Goncourt expressed some doubt about Sanders’ . . . involvement in the child pornography. Merely an intuition, perhaps.”
“I . . . I . . .” said Archer. And stopped.
Rangel simply nodded. They continued walking. Archer now had his hands thrust into the slash pockets of his jacket, and his chin was dropped almost to his chest. After a bit, she said in the same matter-of-fact tone, “You can see how distressing this would be to me, to say nothing of the potential injustice to Dr. Sanders.” It was the first time since the trial that she had used his professional title. “If the authorities have made a terrible mistake, I mean. And then there’s the equally disturbing possibility that a child abuser is still at large.”
An alarm bell rang for a few seconds, cutting through the autumn torpor like a blast of summer sunlight, and Rangel realized that she had led them past the schoolyard. Recess began and children boiled out of the banging school doors, shrieking and shouting with abandon. Archer noticed. Rangel thought she heard him groan.
She stopped and he turned back to face her. It occurred to her at that moment that he might have been — might still be — a guilty participant in the abuse. It seemed impossible that she hadn’t thought this before. Was he about to confess to her?
“I . . . I . . .” Archer managed again.
“Unburden yourself,” said Rangel quietly, surprised at her choice of the old-fashioned, almost religious phrase.
But it seemed to work, because Archer squared his big shoulders and his face became calm. “I’m meant to keep secrets,” he said. “That’s my duty. One of my duties. Not that there are any real secrets about what the Buffs do. But telling tales, well it goes against the grain. My grain, at least.” He peered at Rangel to see if she understood. Rangel gave a small nod. Her collar was cupping the wind, which was starting to freeze the tips of her ears. She stayed still.
“So anyway,” Archer said, “I’m standing in the cupboard at the Lodge, right? The cupboard’s what we call the small . . . room, I guess it is, where we keep the analecta, um, the books of wisdom gathered over the years. But the thing is they couldn’t see me and I wasn’t making any noise.” He cleared his throat, ran a hand over his pate, and darted a glance left and right. “I heard two of the guys talking. They weren’t whispering but they were talking really low. And anyway when you’re in the closet, even if the door is open, everything is muffled. This is after the trial is over, right? And Julie is locked away. And one of the guys says how bad he feels that Julie took the fall and the other guys says something about how Julie probably deserved it anyway, for, like, other stuff he’s probably done. And the first guy says, he actually says, ‘It was you, wasn’t it? All along it was you.’ And the other guy says right back, didn’t miss a beat, ‘Don’t go there. Not even in your dreams.’ Then it’s like he says it’s more than the first guy’s job is worth. I think he said ‘job’. A threat anyway. But all just smooth, like he’s giving you a phone number or something.”
The school bell shrilled once more. Recess was over. And, like leaves in a gust, the children were swept back into the waiting open doors. Silence was restored.
Rangel asked, “Who were the men you overheard?”
Archer shook his head. “I don’t know. I swear. I came out of the cupboard but there was no one there. So I just don’t know. But I mean, there’s only six of us if you don’t count me.” He thought for a moment and abruptly zipped up his jacket. “That’s all I know,” he said. And he walked away.
“WHAT IS THIS PLACE?” Toai Phang kept his arms close to his sides and let disdain show on his face. He was standing in the middle of room 225 of The Hub Motel, located at the 77 kilometer ‘milepost’ on General McNaughton Parkway. It was as far away as he could get from the scuffed and grubby bits of furniture. A forty-watt bulb under a crooked, fake-parchment shade made it look like something sticky had been spilled everywhere. A faint bleach smell tainted the air.
The other man in the room was enjoying himself. He was sprawled on the bed fully clothed, an arm behind his head, every inch of him saying how little he cared about Phang’s discomfort or even his authority. His name was Harry Vu and he was Duc Vinh’s man at Backton Aggregate, the new yard boss. As far as Vu was concerned, he and Phang were both merely tools in Vinh’s hand. Wearing a jumped up suit didn’t get you any further off the ground. One chopstick was as good as the other, was his view: they were equally easy to snap in half.
“Welcome to the Hotel California,” said Vu, moving the exchange to English. “Such a lovely place.” Phang frowned for a moment. Vu had been born in Canada, where Phang had not. Moreover, Vu was of mixed race. Phang believed that these characteristics gave Vu access to local knowledge, a kind of secret knowledge, that he, Phang, lacked; and at the same time they made Vu a naturally inferior being. The combination was exasperating.
“Report,” said Phang.
Vu sighed, letting go of the game. He swung his legs off the bed and sat at the edge, twisted, looking at Phang. “It’s under control.”
Phang waved an impatient hand, wanting more.
Vu got to his feet, put his hands in his pockets, and went to stand at the grimy window. There was nothing to see out there, almost literally nothing: the ground outside the window dropped quickly away into a swale that was intended to carry off flood water. On the other side of the deep, broad ditch, the sky plunged down to oppress the earth. He kept his back to Phang. “The men have come into line. There was some restlessness after the gino was taken out.” Without realizing it, he copied Phang’s gesture as he stirred the air, summoning up the name. “Gio, that’s it. Funny huh? A couple of his buddies tried to kick up a fuss. Ginos. I sorted that. And the rest of the crew could give a shit.”
“Loose ends?” Phang asked.
Vu, perhaps tired of his display of impertinence, turned around and said, more or less seriously, “No. When you work in a mine, there are always ways to clean up loose ends. Access to those crushers alone would make the master’s whole project worthwhile. All by itself.”
Phang got a pained expression on his face, as though it was somehow sacrilegious for Vu even to be referring to the organization’s enterprises. “Keep things going smoothly. It may be necessary to take full control, but it is not time yet for that.” He stood still, wanting to say other things. “Don’t phone,” was all he said eventually.
Vu grinned. “Yeah, yeah, I know. But let me give you a bit of advice.” He pointed past Phang to where the parking lot would be. “Don’t flit into town next time with that white, titty-twisting Mercedes. Sticks out like my dick in a whorehouse. Go down market. Way down market. You can do it. Do you good.” His grin got wider and more cruel. “Chào. Or should I say ciao?” Vu chuckled.
Phang closed his eyes and breathed out, expelling as much of this as he could. And then he turned on his heel and left.
“NO, BUT I FOUND THIS.” Jim Alleyne held out a wound coil of orange string on his blue nitrile rubber palm. Tomasini, Mitman, and Rangel crowded in to look.
“Antenna?” said Tomasini.
“Good guess,” said Alleyne. “But no cigar. In fact, no cigar anywhere near this, please. It’s detonation cord, a happy little tube filled with PETN. Snugged up against the gas tank.”
Rangel and Mitman stepped back. Tomasini moved closer. “Explosive?” Rangel asked, in a small voice.
Alleyne closed his hand over the cord. “Yes and no,” he said. “I could set fire to this and it would smoulder. No bang. But with the right ignition and some compression, say from a small shock wave, hit it with a hammer, say, and you’d get a pretty good explosion along the length of the cord in a fraction of a second. This stuff is quick. Think of it as a fuse with attitude.”
“But dangerous,” said Mitman. “Just by itself?” He was thinking back to the night, a week before, when an intruder had made the alarm go off. He had crawled under the van but hadn’t spotted this.
“No. Well, not really. That’s what I’m saying. You do need that ignition-compression source.”
“And you didn’t find that?” Tomasini asked.
Alleyne was about to hedge his bets, but he decided not to. “I know motor vehicles, all the nooks and crannies” he said. “Better than I know my wife’s.” Tomasini looked up. “Who went home to her mother three years ago. So that’s not surprising, I guess. What I’m trying to say is I’m 95 percent certain that unless somebody hid it there before you got the RV, it isn’t there. There’s only so much you can access under a vehicle that isn’t up on a hoist or jacks. And I accessed it. Besides, it wouldn’t do any good just stuck anywhere. It’d have to be in proximity to the cord.”
Mitman said, “So either a stupid arsonist or one who could only manage half the job.”
“Seems like,” said Alleyne.
“Who,” said Mitman, “ . . . who has access to that stuff?”
“Oh,” said Alleyne, “it’s not hard to come by. Mining, it’s used in mining. But farmers use it to cut trees. You wrap it around the trunk, set it off, and zap! One garotted tree.”
Rangel was poised between anger and vertigo. “Bring in Bodley,” she said to Tomasini. “No, wait. Take that . . . thing and give it to Ronnie. This is his business. You can tell Bodley, though. And tell him about not finding any bugs. No bugs — but a snake,” she said.
“ZIFF, HUGGANOT, UPTON, Franche, Stempel,” Rangel was ticking the names of on her fingers. She closed the full hand and stuck a thumb up from the other. “And Goncourt,” she added.
Mitman made a moaning noise. It was late. Just the two of them in her office, an office that seemed so small, so fragile now. “Could it be?”
“Pedophiles don’t come with labels,” she said. She rubbed her eyes and gave her head a shake. “He’s a client. And his name’s over our door.”
“It’d be a catastrophe. Therefore, it’s not possible.”
“What to do?”
“Again, I think it has to be Ronnie Dabord. If he wants to bring in the provincials, that’s his call. But the Sanders investigation was his. Then, unless Ronnie tells me there’s some problem with it, I’ll want to talk to Sergei Antipov. I think Sanders’ lawyer should know but I can’t go anywhere near him. Or Sanders.”
She got up and put on her coat. Mitman rose and did the same.
“That’s what to do,” she said in a solemn voice.
And they left, locking the door behind them.
© Simon Fodden
. . . What It Means
I’m preterpluparenthetical. It comes from my practice of thinking associatively (not in itself the best foundation for a career in law [or teaching law either, if it comes to that]). But it can lead me on some interesting rambles, as I slide from one thing to the middle of another and on to the tail end of a related notion.
Reading a dictionary is good for that sometimes, each word’s definition providing a clue to the next word in need of clarification or dilation. But when that palls, when you think that you’ve got a lock on what pretty near every word means, except for all those chemistry nonsense words of course, you might want to have a look at The Phronistery, a website specializing in arcane English words.
It’s there I learn that “faburden” is “harmony in thirds and sixths.” And that “waftage” means “transportation through water or air.” Did you know that a “cacomistle” is a “raccoon-like animal of the American southwest” (though on checking this, I think it’s a caconym for a ringtail, which is something else). And on and on.
You can stab around (i.e. browse) via alphabetical order. Or you can come at things via categories or glossaries as the site has it. So if ecclesiastical terms are your thing — apocatastasis anyone? — or fabric (baldachin, which is not, I found out, something from Men In Black II but rather “rich embroidered silk and gold fabric”), or stuff on the high seas (loxodograph, sponson . . . ) the glossaries are the way to go.
There’s more on The Phronistery. But if you find that you can’t find enough there, check out the tips there on finding the word you’re looking for elsewhere.
Sam Glover tipped me off to a piece about how to entertain your clients during the long empty spaces that are the hallmark of a mediation session. Advice like “chat up the mediator” and “get to know your client.” No disrespect to the gentlemen solicitor authors (wait, does Canada have solicitors or lawyers?) but people, we need more.
What if the mediator doesn’t make many visits? What if your client is a terrible bore? Let’s spice things up with some much better ways to pass the time when you are locked in a room with someone for hours at a time.
5 Ways To Keep Your Client Occupied During Mediation Downtime was originally published on Lawyerist.
In an worldwide first, the Hague District Court has ordered the Dutch government to cut its greenhouse gas emissions (GHGs) by at least 25% compared to 1990 levels by the end of 2020. The decision, an English translation of which can be found here, has been widely reported and discussed (including in an interview on CBC Radio’s The Current with Dianne). It has rekindled hopes around the world that courts can spur governments into taking serious steps to deal with climate change.
Could a similar case be brought successfully in Canada?
The suit was brought against the Dutch government by Urgenda, a Dutch foundation dedicated to sustainability, and nearly 900 individuals.
The Plaintiffs argued that the Dutch government owes its citizens a duty of care to protect them from severe but avoidable harm. The Dutch government has already accepted the scientific findings of the Intergovernmental Panel on Climate Change, the United Nations Environmental Programme, and several Dutch agencies, that warming of more than 2° C above pre-industrial temperatures will likely entail catastrophic consequences for humans and the environment, including the Dutch. The Dutch government also accepts that its targets for reducing greenhouse gas (“GHG”) emission levels (about 17% below 1990 levels by 2020) would not proportionately contribute towards staying below this 2° C threshold. At an international meeting, Holland had signed a communiqué stating that cuts of at least 25% to 40% by 2020 were necessary.
Urgenda argued that the Dutch state had therefore breached a duty of care owed to them (and to Dutch society generally), had infringed their rights under the European Convention on Human Rights (“ECHR”), and had contravened various obligations under international law and the Dutch Constitution. The government argued that its commitments were fair compared with those made by other countries, and that the court had no legitimate right to dictate climate change and economic policy to a democratically elected government.
The Court undertook an exhaustive examination of the current science on climate change, which both sides accepted. It also reviewed the legal and policy frameworks developed at the national, European Union, and international levels, including the United Nations Framework Convention on Climate Change (“UNFCCC”), the Kyoto Protocol, the Treaty on the Functioning of the European Union (“TFEU”), and various customary principles of international environmental law, such as the “no harm” principle.
The Court concluded that the Dutch state“has a serious duty of care to take measures to prevent” catastrophic climate change (4.65) and to “mitigate as quickly and as much as possible” (4.73). This duty was not excused by the Netherland’s comparatively minor contribution to global GHG emissions (4.79), because its per capita emissions are high.
To satisfy its duty of care, the Dutch government had to act on its own international commitment, and to reduce emissions by 25% below 1990 levels.
In coming to this conclusion, the Court found that the Netherlands’s various international legal obligations (including under the ECHR, UNFCCC, and TFEU) did not create an enforceable legal obligation on the part of the state towards the Plaintiffs. However, these obligations were important in determining the scope of the State’s duty of care and whether or not it had been breached:
[Firstly,] it can be derived from these rules what degree of discretionary power the State is entitled to in how it exercises the tasks and authorities given to it. Secondly, the objectives laid down in these regulations are relevant in determing [sic] the minimum degree of care the State is expected to observe (4.52) [emphasis added].
While it is up to the Dutch state to determine details of its national climate policy, (4.55)
due to the nature of the hazard (a global cause) and the task to be realised accordingly (shared risk management of a global hazard that could result in an impaired living climate in the Netherlands), the objectives and principles, such as those laid down in the UN Climate Change Convention and the TFEU, should also be considered in determining the scope for policymaking and duty of care.
Implications for Canada and the rest of the world
The question on everyone’s lips following the Dutch victory is: could a comparable case find success elsewhere?
There is currently no shortage of climate litigation unfolding around the world, and the success of the Dutch case will likely inspire additional attempts. Even before the decision came down, a Belgian NGO had filed a suit based on a similar premise against Belgium, and another is anticipated in Norway.
Of course, it is by no means clear that the Dutch victory will be replicated elsewhere. As a relatively recent string of disappointing challenges against various utility and energy companies in the US demonstrates, most courts have been loathe to interfere in complex economic policy based on complex probabilities that are themselves based on complex science. Most prefer to leave such matters to policy makers.
To date, all Canadian courts have ruled that climate change policy is “not justiciable”, i.e. not within their jurisdiction. Challenges to the Canadian government’s approach on climate change have therefore been rejected, including judicial review of the federal government’s failure to comply with the Kyoto Protocol Implementation Act, SC 2007, c 30, and of its decision to withdraw from the Kyoto Protocol.
That said, the time may now be ripe for courts to step in. In the years since these cases were argued, the science has become much clearer and the international consensus stronger: climate change is creating catastrophic risks. Moreover, from extreme weather events to shrinking shorelines, the effects of climate change have become more tangible and more immediate. As the threat builds, and the foreseeable harm multiplies, courts may feel more at ease to demand action.
While it would certainly be an uphill battle, a similar outcome is not unimaginable in Canada. While not a directly applicable precedent, of course, the Dutch decision demonstrates how the courts can effectively wade through the complex science data and apply these findings to basic principles of negligence. Likely, any Canadian challenge would similarly rely upon an assortment of legal principles and instruments, both international and domestic, including the Charter.
Finally, as the world gears up for December’s COP in Paris, the Dutch decision offers renewed support for the hope that, despite years of disappointing negotiations, multilateral obligations remain both relevant and important in the battle against climate change. The decision demonstrates how international commitments, instruments, and international environmental law principles, even if not directly enforceable, can be used by courts in conjunction with constitutional rights and private law obligations to give shape to the state’s obligation to take decisive action against climate change.
Sunday, July 26, 2015
Kirsten Mikadze and Dianne Saxe
 The work of the Sabin Centre for Climate Change Law at Columbia Law School provides a glimpse of the scale and diversity of this activity, both in the US and around the world: http://web.law.columbia.edu/climate-change/resources/us-climate-change-litigation-chart (for US) and http://web.law.columbia.edu/climate-change/non-us-climate-change-litigation-chart (elsewhere).
 See e.g. Massachusetts v EPA, 549 US 497 (2007); Comer v Murphy Oil USA, 839 F Supp (2d) 849 (SD Miss 2012); Native Village of Kivalina v ExxonMobil Corp, 696 F 3d 849 (9th Cir 2012).
 Friends of the Earth v Canada (Governor in Council), 2008 FC 1184, aff’d 2009 FCA 297, leave to appeal to the SCC denied,  SCCA 497.
 Turp v Canada, 2012 FC 893.
My blog post last year about developing a legal research ontology was such an optimistic (i.e., naive), linear narrative. This was one of my final notes:
At this point, I am in the beginning stages of taking advantage of all the semantic web has to offer. The ontology’s classes now have subclasses. I am building the relationships between the classes and subclasses and using Protege to bring them all together.
I should have known better.
What I didn’t realize then was that I really didn’t understand anything about the semantic web. While I could use the term in a sentence and reference RDF and OWL and Protege, once you scratched the surface I was lost. Based on Sara Frug’s recommendation during a presentation at CALI Con 2014, I started reading Semantic Web for Dummies.
It has been, and continues to be, slow going. I don’t have a computer science or coding background, and so much of my project feels like trying to teach myself a new language without immersion or much of a guide. But the process of this project has become just as interesting to me as the end product. How are we equipped to teach ourselves anything? At a certain point, you just have to jump in and do something, anything, to get the project moving.
I had already identified the classes:
* Type of research material;
* Type of research problem;
* Source of law;
* Area of law;
* Legal action; and
* Final product.
I knew that each class has subclasses. Yet in my readings, as I learned how ontologies are used for constructing relationships between entities, I missed the part where I had to construct relationships between the entities. They didn’t just magically appear when you enter the terms into Protege.
I’m using Web Protege, an open-source product developed by the Stanford Center for Biomedical Informatics Research, using the OWL ontology language.
Ontology engineering is a hot topic these days, and there is a growing body of papers, tutorials, and presentations on OWL and ontology engineering. That’s also part of the problem: There’s a little too much out there. I knew that anything I would do with my ontology would happen in Protege, so I decided to start there with the extensive user documentation and user support. Their user guide takes you through setting up your first ontology with step-by-step illustrations and a few short videos. I also discovered a tutorial on the web titled Pizzas in 10 minutes.
Following the tutorial, you construct a basic ontology of pizza using different toppings and sauces. While it took me longer than 10 minutes to complete, it did give me enough familiarity with constructing relationships to take a stab at it with my ontology and its classes. Here’s what I came up with:
This representation doesn’t list every subclass; e.g., in Types of research material, I only listed primary source and in Area of law, I only listed contracts, torts and property. But it gives you an idea of how the classes relate to each other. Something I learned in building the sample pizza ontology in Protege is the importance of creating two properties: the relational “_property and the modifier_” property. The recommendation is to use has or is as prefixes1 for the properties. You can see how classes relate to each other in the above diagram as well as how classes are modified by subclasses and individuals.
I’m continuing to read Semantic Web for Dummies, and I’m currently focusing on Chapter 8: Speaking the Web Ontology Language. It has all kinds of nifty Venn diagrams and lines of computer code, and I’m working on understanding it all. This line keeps me going. However, if you’re looking for a system to draw inferences or to interpret the implications of your assertions (for example, to supply a dynamic view of your data), OWL is for you2.
One of my concerns is that a few of my subclasses belong to more than class. But the beauty of the Semantic web and OWL is that class and subclass are dynamic sets, and when you run the ontology individual members can change from one set to another. This means that Case Law can be both a subclass of Source of Law and an instance of Primary Source in the class Type of Research Material.
The way in which I set up my classes, subclasses, and the relationships between them are simple assertions3. Two equivalent classes would look like a enn diagram with the two sets as completely overlapping. This helps in dealing with synonyms. You can assert equivalence between individuals as well as classes, but it is better to set up each individual’s relationships with its classes, and then let the OWL reasoning system decide if the individuals are truly interchangeable. This is very helpful in a situation in which you are combining ontologies. There are more complicated assertions (equivalence, disjointness, and subsumption), and I am working on applying them and building out the ontology.
Next I need to figure out the characteristics of the properties relating the classes, subclasses, and individuals in my ontology: inverse, symmetric, transitive, intersection, union, complement, and restriction. As I continue to read (and reread) Semantic Web for Dummies, I am gaining a new appreciation for set theory and descriptive logic. Math seems to always have a way of finding you! I am also continuing to fill in the ontology with terms (using simple assertions), and I also need to figure out SPARQL so I can query the ontology. It still feels like one of those one step forward, two steps back endeavors, but it is interesting.
I hope to keep you posted, and I am grateful to the Vox PopuLII blog for having me back to write an update.
Amy Taylor is the Access Services Librarian and Adjunct Professor at American University Washington College of Law. Her main research interests are legal ontologies, organization of legal information and the influence of online legal research on the development of precedent. You can reach her on Twitter @taylor_amy or email: email@example.com.
1 Matthew Horridge, A Practical Guide to Building OWL Ontologies, 20, http://phd.jabenitez.com/wp-content/uploads/2014/03/A-Practical-Guide-To-Building-OWL-Ontologies-Using-Protege-4.pdf (last visited May 19, 2015.
2 Jeffrey Pollock, Semantic Web for Dummies 195 (Wiley 2009).
Using personal devices at work to conduct business (BYOD or “bring your own device”) has become commonplace in the last couple of years. Employers are implementing BYOD policies left, right and centre to try to control the privacy challenges this practice can bring about when employers access these devices to protect their data contained on them.
On August 13, 2015, the federal, British Columbia and Alberta privacy commissioners issued joint guidelines about the protection of personal information, to help organizations reduce the risks of privacy breaches when considering allowing employees to use their own mobile devices and computers for work. The guidelines also aim at mitigating risks of security incidents and privacy breaches. Federal Privacy Commissioner Daniel Therrien says:
“Allowing employees to use their mobile phones, tablets and laptop computers for both personal and professional use carries significant privacy risks – particularly when one world collides with the other… Companies need to consider the risks in advance and prepare to manage them effectively. Only then could they conclude whether a BYOD program is right for them.”The privacy risk explained
The term “employee-owned device” is very broad and includes smartphones, tablets, laptops and desktop computers at home. These devices allow professionals to access corporate data, email, communications, applications and other processes and information wherever they are.
While the convenience of personal devices enables employees to peruse email, communicate with clients and review documents without being tied to the office and with reduced initial cost to employers, the BYOD trend is creating tension between how much access an employer can have to the worker-owned device and how much privacy an employee can expect.
Organizations are understandably concerned about security:
On the other hand, when using their personal devices for work, employees want to keep their personal information (e.g., photos, browsing history, text messages, emails, contacts, financial information, etc.) stored on their mobile devices private from their employers.
In the words of the commissioners:
“With the line between work and home increasingly blurred, bring your own device programs are growing in popularity and raising significant concerns among privacy guardians about the protection of personal information.”
“Companies also need to bear in mind that despite their best efforts, bad things can happen. Devices may be lost or stolen and personal information may be compromised.”What is recommended by the federal, British Columbia and Alberta privacy commissioners?
The guidance is focused on 14 tips to consider when planning or implementing a BYOD program. They include:
According to the guidelines, organizations should conduct a privacy and threat assessment prior to implementing a BYOD program to identify and address risks associated with the collection, use, disclosure, storage and retention of personal information.
A policy is not enough.
Companies need to understand the issues and risks specific to their organization, prior to establishing a BYOD program and policy:
Companies also need to train their employees and IT staff on what the policies say and employee right to privacy, and institute methods for ensuring the employees are complying with the rules.
The privacy commissioners’ guidelines will help you understand how to draft your policy to implement rules governing the acceptable use of devices, corporate monitoring, the sharing of devices, app management, connecting to corporate servers and security features, software, updates, voice and data plans, etc.
In addition, the guidelines suggest risk mitigation measures including encryption of BYOD devices, authentication protocols and how to separate corporate data from personal ones, among other measures.Conclusion
An employer that simply allows employees to use their own devices for work purposes, without considering the repercussions and implementing controls, places itself at substantial risk of data loss and misuse, unnecessary expenses and legal costs, reputational damage and even fraud.
Work today is increasingly mobile and remote, and employees are using their own devices for work, whether their employers like it or not. It is essential that employers understand the risks and challenges associated with BYOD—especially the risks specific to your organization—and develop a plan to meet those issues proactively.
Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.
Thomas E. Simmons
66 Mercer Law Review 729 (2015)
Excerpt: Introduction and pp 744-753
[Footnotes omitted. They can be found in the original via the link above]I. INTRODUCTION
The recent spike in tales about zombies has generated inspired responses from legal scholars. Films, such as World War Z (based on a fan-favorite novel), and television series, such as The Walking Dead (based on a comic book that routinely flies off the shelves), have captured the imaginations of viewers. These and other zombie stories make for productive legal critiques.
Zombies offer some of the same possibilities for exploring the application of legal principles as caped superheroes or Frankenstein’s monster. While zombies are horrifying, infectious, flesh-eating ghouls, zombies as a construct are one-dimensional relative to the complex dualism of a werewolf or the variegated sexuality of a vampire. A world where humans face a zombie apocalypse, however, presents a rich tableau for exploring fundamental principles of legal organization, structure, and procedure. This Article teases out some of that potential, suggesting teaching techniques and methodologies that demonstrate the possibilities of the judicious and meaningful inclusion of references and texts, such as The Walking Dead television and comic book series, in a law school curriculum.
As an assistant professor at a law school, I occasionally sprinkle references to zombie narratives in place of the standard players: “A”, “B”, and “C.” For example, to illustrate the present-interest concept for annual exclusion gifts in trust, I display comic book representations of key characters, provide their names and relationships to one another, then outline a scenario from The Walking Dead where Rick Grimes makes a gift in trust to Shane Walsh as trustee to pay to Rick’s wife, Lori, for life, remainder to son, Carl. The point here is that the remainder gift to Carl, while a completed gift and a vested interest, would not qualify as a present interest for annual exclusion purposes. I point out that this is true even though we all know that Lori’s term of enjoyment from the trust is going to be abbreviated, given that she dies in episode four of season three. I have only had one complaint from students related to this particular hypothetical. A student raised his hand, and frowning, said, “I haven’t seen that episode yet.” Spoiler alerts may therefore be in order.
Educational benefits are achieved from employing references to popular-culture plots or characters with which students have familiarity and share with other students, even students with diverse cultural, social, and geographical backgrounds. The visual cues that accompany a hypothetical that utilizes actual imagery of those characters enhances learning for many students. The technique of mapping fictional realities as frameworks for exploring new legal concepts forges connections with students, while allowing the exploration of the new and novel against a background of the familiar. It grabs the attention of students. It grounds new concepts in recognizable contexts. It cultivates a shared narrative as common ground for students of various worldviews and experiences.
In addition to utilizing popular narratives in illustrative hypotheticals as an educationally sound technique for introducing legal concepts, “what if” scenarios from popular texts can be framed as a way of testing the limits of a doctrine once it has been effectively mapped out for students. This Article’s various suggestions may be employed by law school professors by incorporating lessons from the exploration of the zombie mythos within an existing, recognized hornbook course-specifically, by referencing zombies or particular zombie texts to further illustrate various points. While teaching public health law, for example, a professor may incorporate discussions about how existing policy and governmental infrastructure may respond to a zombie outbreak. In a contracts course, students may puzzle over whether a zombie attack could constitute a force majeure. In an estate tax course, the impact of the undead on a transfer tax system, which relies on decedents, could be explored. These examples of uses of zombie texts suggest possibilities within the established curriculum, distilling lessons and discussion points relative to doctrines and procedures from a popular literary narrative.
The productive use of zombies in a law school curriculum is not limited to hypothetical scenarios and posing “what if” questions. The content of an interdisciplinary law and literature course could be expanded to include consideration of texts that reference zombies. While serious, canonical works such as Dickens’s Bleak House, Otto Preminger’s Anatomy of a Murder, and Kafka’s The Trial constitute examples of literature and film that merit serious study in a course in law and literature, I will assert that lesser texts should also be included, both as a way to highlight why Martin Scorsese outshines George Romero (even if one prefers repeat viewings of Romero) and to permit students to engage with less challenging works that still contain significant “teaching moments” about the law. The willingness to include lesser works of popular culture in a law and literature course alongside the greats, like Dickens and Kafka, underscores the fact that the primary thrust of a law and literature course taught to law students should be the law. Texts should be selected by law professors not for aesthetic achievements or historical importance, but for a text’s suitability in positing the study of law within a fictional narrative. Law should not be incidental to the study of literature; literature should serve the study of law. Recent scholarship under the rubrics of “law and popular culture” or “law and culture” supports this assertion. In some ways, the law and culture movement is an outgrowth of law and literature; in others, law and culture is its antithesis. First, however, to lay the groundwork for illustrations of a law and literature approach to zombie texts, an outline of the zombie mythos (for those unfamiliar with the great films of George Romero) and a brief summary of law and literature methodologies is in order.
…C. Zombies and the Law: Two Pedagogical Alternatives
Two primary approaches can be utilized in applying a law and literature analysis to zombie texts. The first starts with the essential premise of a typical zombie narrative and extracts likely legalistic responses based upon existing doctrine and institutions. For example, we can consider how quarantine regulations would be utilized; the circumstances under which habeas corpus might be suspended; or the manner in which trans-national institutions, such as the United Nations, would react to a zombie apocalypse. These are “what if” questions which can be posed against the backdrop of a generalized zombie outbreak without dissecting any particular text.
In the discussion that follows, I will utilize this approach to consider the legal consequences of categorizing zombies, that is, whether as persons, as human remains, as animals, or as non-animals. This approach will employ a relatively static use of individual zombie narratives and pose questions in the abstract, questions which may be purely academic in an actual zombie outbreak. After all, most zombie stories demonstrate that central governments and institutional frameworks are completely displaced when significant numbers of the dead rise and attempt to eat us, and that the state of legal frameworks will be one of anarchy.
In a state of anarchy, there will be no courts, no administrative agencies, few advocates, and no formal enforcement mechanisms or sanctions. There will be only lawless pockets of survivors admidst millions of zombies. It is therefore pointless to ask whether hunting regulations would likely be modified to allow “open season” on zombies in a world without functioning state game, fish, and parks departments. For our purposes, however, I will speculate presuming an idealized general form of a zombie apocalypse populated with typical, animated, and hungry corpses at a point in time perhaps three months after the collapse of organized human resistance.
In addition to these “what if’ questions posed against a hypothetical zombie outbreak, we can examine the decisions and responses of the survivors situated within a particular narrative, considering themes and character choices with reference to the rule of law, justice, and procedure. We can ask what a specific zombie story tells us about the most fundamental legal values that survive the apocalypse and what the legal environment of the zombie apocalypse looks like.
This approach requires an analysis of particular settings, plots, characters, and their motivations in a given text as opposed to asking in the abstract how the law might treat the challenges inherent in a zombie apocalypse. The Walking Dead will serve our purposes for this particularized analysis, and we will consider what the television show and comic book series tell us about the retention of basic legal frameworks in a setting of destruction, anarchy, and the imminent possibility of human extinction. We will consider whether the survivors simply jettison legal structures as unnecessary and superfluous or whether they actively attempt to maintain some semblance of legal institutions. We will ask whether these portrayals ring true and whether we agree with the text’s assertions about the true value of law in an extreme environment. First, however, zombie categorization in the abstract should be considered.
1. Classification of Zombies. There is something to be gained from exploring the way that the law would likely respond to zombies themselves. Although zombie texts seldom take the time to pose fundamental questions, these are questions that we should ask and be prepared to answer as lawyers and teachers of the law. Thus, what rights (if any) would zombies be entitled to under existing legal doctrines? In answering this question, we would first ask how the law would classify zombies. What are zombies, legally speaking?
In my view, zombies would be properly categorized as non-human (or perhaps more precisely, as non-persons). A weak argument could be advanced that zombies are akin to profoundly impaired humans with ataxia instilled with an unexplained craving for human tissue. This argument should be rejected on the basis that the person whose corpse the zombie inhabits has died and that their corpse, although animated, is still properly classified as deceased. Someone who is deceased is no longer a person, legally speaking.
Perhaps zombies could be categorized as animals. Under the mythology of World War Z, the animating principle behind the undead is a virus. Essentially, it appears that zombies are animated only by the functioning of a virus. A virus cannot be said to be an animal. But in many zombie films, zombies, although slow-witted and clumsy, are capable of learning and reasoning on the level of perhaps a dog or possibly a chimpanzee. The initial scene in the zombie film that all others are measured against, Night of the Living Dead, opens with a zombie using a rock to smash a car window. The law would likely struggle with the question of whether to treat zombies as animals (entitled to some legal protections from wanton cruelty) or as something more akin to bacteria or slime molds (entitled to
no legal protections).
This is what the law does: insofar as possible, it categorizes the new and novel within its existing structures. This exercise reflects the limited role of the courts in interpreting the law as compared to the expansive powers of the legislature in declaring the law. Prior to a legislative pronouncement, courts are faced with referring to existing law when facing a novel issue, even one not initially contemplated by the legislature. Thus, when faced with categorizing zombies, courts would turn to existing legal frameworks and determine whether zombies should be properly categorized as animals. Ultimately, a state legislature or Congress would likely enact comprehensive zombie regulations. Until then, the courts’ categorization of zombies would constitute the binding legal framework. Even in the
absence of functioning courts or legislatures, some survivors, infused with respect for the rule of law, may undertake similar categorization exercises among themselves, considering competing policy arguments and the implications of those assertions.
The arguments for and against categorizing zombies as animals may unfold as follows:
Zombies respond to stimulus, they experience hunger, they are capable of some basic emotional responses: rage, surprise, and boredom. Zombies are capable of perception. Zombies are capable of learning on some level-at least on the level of a mouse in a maze. Zombies can distinguish between zombies and living people and do not eat other zombies. Zombies utilize their vocal chords, if not to speak, then at least to grunt, growl, and employ some means of primitive expression. They are not human; they are animalistic, noxious beasts, but as such they deserve to be treated as animals under our laws in the same manner as grizzly bears or Tasmanian devils.
Zombies are much more like smallpox than puppies. No one in their right mind resists the complete eradication of smallpox, and neither should we resist the wholesale elimination of the threat posed by the undead. All of us have lost loved ones in the zombie outbreak, and one of the hardest things about the state of the world today is seeing our loved ones, glassy-eyed and shuffling about, trying to eat us. But they are not our loved ones; they are zombies. Our loved ones have died and their corpses have been reanimated by unthinking machines that do not even respond to pain, do not even protect themselves from blows, and do not even seek to avoid annihilation. Even a mouse runs from a tormenter; the zombies lack even this basic instinct of self-preservation. They are not animals. They are germs.
Pro-Zombie Rebuttal Argument:
Given the unfortunate catastrophe of the zombie apocalypse, our doctors and our laboratories are unable to offer us any scientific analysis as to the level of consciousness to which zombies are capable. In these circumstances, we should err on the side of assuming at least the most primitive level of consciousness. Moreover, the oldest zombie is perhaps four to five months old. A four-to-five-month-old human infant would have only the most basic gross motor skills, verbal abilities, or powers to distinguish or empathize; a human infant focuses only on its basic needs. Perhaps with time, zombies will develop higher levels of consciousness just as humans and other animals do. We don’t know. Zombies should qualify as animals, at least for the time being, until we know more about them.
Anti-Zombie Rebuttal Argument:
Zombies lack any kind of free agency or even the basic instinct of self-preservation, and the danger they pose to the human race-what’s left of it-cannot be overstated. The pro-zombie argument actually uses the fact that zombies are selective in eating us rather than other zombies to argue for rights for the undead. It’s ludicrous. We must act in our own best interests, not the best interests of the zombies. Zombies are not baby seals; they are not bald eagles; they are not animals. They are, in fact, the greatest danger the human race has ever faced. And make no mistake, categorizing zombies as animals will come at a cost, a cost of life, possibly at the cost of humanity itself.
Balancing both sides, the pro-zombie argument would be more likely to prevail, at least in the short run. However, the legal realists’ school would correctly point out the enormous prejudices zombies would likely encounter in the courtroom, as they are responsible for the destruction of most of the world’s population and intent on biting, eating, and infecting the few survivors who remain. If zombies typically operate on the level of a mammal, laws concerning animals should be applicable to the undead. Legislative action may ultimately intervene to specifically delineate the legal character of the undead, but until that occurred, courts would attempt to shoehorn zombies into an existing legal category. Consequences would flow from the categorization of zombies as animals.
Most states’ animal cruelty laws could apply to zombies, making it a crime to commit wanton cruelty upon a zombie, except as necessary in the defense of life or property. If it could be successfully demonstrated that zombies do not experience distress or pain, then a strong argument could be made that they should be exempt from this particular law governing animals, since animal cruelty laws appear targeted towards protecting animals from pain. Laws that prohibit people from forcing animals to fight one another may apply to zombies as well, assuming that zombies could be encouraged or enticed to fight one another.
If zombies are animals, legally speaking, zombies would clearly be considered dangerous animals. Therefore, applicable hunting and trapping regulations would treat zombies in the same way that an escaped killer lion or a rabid dog might be treated. Some laws target the neglect or hoarding of animals. If zombies are animals, the hoarding prohibitions may apply to any survivors who kept unacceptable numbers of zombies in an enclosed space. Those who did contain or collect zombies (as Hershel does inside his barn in The Walking Dead) could also face strict liability for any resulting injuries.
Non-profit organizations dedicated to the prevention of cruelty to animals would reconsider their internal policies as well, perhaps amending their bylaws and organizational documents to exempt zombies from the class of animals for which they advocate. It seems unlikely that People for the Ethical Treatment of Animals (PETA) or the America Society for the Prevention of Cruelty to Animals (ASPCA) would undertake to advocate for zombies in the absence of widespread membership support. Organizations like PETA would be free to fight against cruelty to zombies if they chose to and still maintain their tax-exempt status, as Congress allows the Internal Revenue Service (IRS) to grant tax-exempt status to organizations that are organized to prevent cruelty to animals. PETA could also
elect to define a narrower class of animals and exclude zombies from its advocacy efforts.
At first blush, it therefore stands to reason that the undead would also be treated as chattels, such as horses, dogs, and toasters, which can be bought, sold, transferred, and encumbered as personal property. Two facts concerning zombies contradict the simplicity of this conclusion. First, zombies are much more akin to wild animals than domesticated pets. Wild animals are deemed the property of the sovereign and not the chattel of the landowner on whose property the wild animal might be found, at least until the quarry is captured or taken.
Second, zombies are simultaneously both low-functioning, animal-like creatures and decaying human remains. Zombies are animated human remains, but they are human remains all the same, reverting to mere human remains only upon having been effectively neutralized (typically by traumatic brain injury). The law closely regulates the burial, disposal, delivery, transportation, destruction, dissection, donation, disturbance, and trafficking of human remains. Many of the laws governing human remains would be deemed to apply to zombies both before and after the dispatch of a particular zombie.
The comprehensive regulations governing human remains have two primary impetuses. Human remains constitute a public health risk if not properly and promptly handled; disease and sickness can easily result from human remains that are mistreated or left untreated. Accordingly, laws regulate the disposition, transportation, and internment of bodies. In addition, human remains invoke deep emotional attachments and responses. There is something intensely personal and intimate about a deceased person’s remains, something that deserves respect and deference. Thus, laws require human remains to be reposed with dignity and recognize the enforcement of a decedent’s wishes regarding their funeral arrangements, burial instructions, and organ donation. Because we have concluded that zombies would be properly categorized as both dangerous wild animals and, at the same time, animated human remains, the law would likely seek to apply the rules and regulations concerning both quite different matters in a single hybridized set of doctrines and reject the simple categorization of zombies as mere chattels. From this synthesis, we would derive “zombie law.” In time, zombie law would become a recognized course in law school, possibly even as part of a first year law student’s course load in view of the overriding importance of zombie law in the zombie apocalypse. New professors would be recruited, and symposia and specialty law journals on zombie law would proliferate.
Essentially, zombie law would comprise an offshoot of personal property law, like both animal law and the law of human remains. Given the extreme hazards that the animated undead would represent to individuals and society, the values inherent in ensuring dignity and respect to human remains would often give way to preserving public safety from the risks that zombies represent. The law would favor zombie eradication over sensitivity to the emotional impact of corpses.
Lawyers aren’t simply born public speakers. If you want to be good at it, or even okay at it, you need to practice.
There are countless resources available to help you cope with public speaking issues. My best advice is elementary: you have to do it. You have to find places to speak publicly. At a party, do not just politely nod at everyone. Jump in with a story.
If you want to get more serious, try joining a local Toastmasters group. You will end up getting total strangers to listen to you.
Here are the best practices I can offer on giving a good CLE.Never Tell Your Audience Why You Will Suck
If you are nervous, the audience will figure it out. If you are unprepared, they will figure that out as well. Do not take up your valuable speaking time offering a useless disclaimer about why, ultimately, the CLE was not a priority for you. Each one of these pre-excuses is an attempt to tell your audience they were not important enough for you to adequately prepare for.Is Now a Good Time for a Joke?
A priest, a rabbi, and a cowboy walk into a bar . . . .
How is this joke going to help you? It won’t. Even if you run it by all of your friends who are priests, rabbis, and cowboys. Telling a joke at the beginning of any CLE is a time-honored tradition. But that does not mean it is a good tradition. Jokes are destined to offend at least some portion of your audience. If you are going to say something funny, it should not be from a book. Instead, tell a true and humorous story about your practice that relates to your CLE.
If you must use something canned, try a trivia question you have researched that is marginally related to your topic. It can involve the audience.Face the Audience
If you are using a slideshow, and most CLE speakers do, your laptop should be in front with the screen facing towards you. The screen that the audience sees is behind you. If you are turning back and forth between the screen and the audience, you are more difficult to hear. Control your slideshow with a remote if possible.Be Heard
If the audience cannot hear you, it makes no difference how brilliant your CLE presentation is. You must speak loudly so the audience in the back of the room can hear everything you say.
Some CLEs require microphones. Maybe the CLE is being streamed or even recorded for later playback and a microphone is essential. But if it isn’t, a microphone can counterintuitively make it so you don’t speak loud enough.
You need to throw your voice just like you are throwing a ball to someone. If they are right next to you, you do not need to throw very far. If they are across the room, you may need to throw the ball as hard as you can. If you are focusing on making sure your voice is loud enough for the back row, you will instinctively speak louder. A microphone may give you the false sense that your voice is carrying far enough.
Check your volume frequently. Make frequent eye contact with audience members in the back row to make sure you do not lower your voice as the CLE progresses. If the back row cannot hear you, they will either lose interest or give you a signal asking you to talk louder.Do Not Read Slides The literacy rate for lawyers is pretty much off the charts. Do not read slides to your audience.
Watching a speaker read a slideshow verbatim is painful, especially at the beginning of a CLE. The literacy rate for lawyers is pretty much off the charts. Do not read slides to your audience.
As the speaker, your slides should merely be a launching point for what you want to say.
For CLEs, do not get caught up in reading case names or statutes. If you need to refer to a statute, do not cite it in an oral Bluebook compliant fashion. Just say, “the statute on the screen,” or “that statute” while pointing at the screen.
Likewise, do not give a full cite to a case.1 If you must refer to the case by name, just name the parties. It is also okay to say, “The state Supreme Court ruled in the Dillinger case that…”.Always Repeat Questions
Remember how I mentioned that you have to throw your voice to the back row of the audience? The same is true of an audience member that asks a question.
If you see a hand go up, grab your water, and walk away from the questioner while staying in front of the audience. You should then call on the person asking the question. They will be forced to throw their voice to where you are. They’ll have to speak up. More of the room will hear the question the first time.
After the question is completed, you should repeat it. If it was long, you should summarize what you think they were asking. When you do this summary, look at the back of the room; do not look at the questioner. Once you are done with the summary, clarify that you summarized correctly.Try to Be Standing
It is rare to see a speaker not stand, unless the CLE is done in a panel format with multiple speakers.
For long CLEs, I have sporadically used a stool. But a regular chair is a terrible idea for long periods. It nullifies your ability to make eye contact with many of the people in the room. You are not tall enough to be seen.
### Use the Stage
If you want your audience to stay awake while you present, make them move. Occasionally move from one side of the stage (or front of the room) to the other. Your attendees will be forced to turn their heads slightly. They may even shift in their seats. Anything that makes attendees move is a good way to keep the audience engaged.Always Take Questions (with a Caveat)
I have always found that questions work much better during a CLE, instead of at the end, when the question may relate to something said an hour ago. There are many positives to taking questions during a CLE.
But not all questions help. Some can derail a well-planned one-hour seminar. You have to be able to recognize when you can afford a time-sink question and when you cannot.
If you are running short on content, and you know that you will have twenty minutes of dead air at the end of the CLE, you may welcome any question. The best questions are ones that will clarify an earlier point or add to what you have already said.
There are three types of questions you should avoid:
Do not let something small, or even something big, throw you off.2 If you trip over your words or seem to be stammering, just pause. Take a drink and restart. Do not let your preparation be lost because of some glitch or even because of some major unforeseen problem.
If possible, think of a way to smile, laugh through it, and get to your main job: giving a killer presentation.
Featured image: “Rear view of male speaker on the podium.” from Shutterstock.
Especially bad, I saw a speaker give the state specific cite and the Northwest Reporter cite as well. ↩
I was out of town, staying with my uncle and giving a speech at 8:30 in the morning. As I got ready, the zipper on my pants broke. It was completely unfixable, despite my incredibly sad attempt to find the sewing kit in the house and suddenly know how to sew. There weren’t any stores open, and I had to get to the CLE. Was I panicked? Fully. All I had with me for clothes was the useless pair of suit pants, the basketball shorts I had from the drive up the day before, and pajama pants. After my first ever attempt at emergency sewing repair (and some blood being spilled), I ended up borrowing a pair of my uncle’s pants. He was slightly taller than I was, so I had to roll up the cuffs. The real bonus was I had a great opening line for my presentation. “Raise your hand if, like me, you’re wearing someone else’s pants today…” I then told the story. It was easily my best CLE opener ever, because it was sincere and obviously true (band-aids on two fingers and rolled up pants for proof). I now bring two sets of “speech clothes” to any out of town presentation. ↩
While on a family road trip in summer of 2013, I was ticketed for speeding on a stretch of highway west of Sudbury, Ontario. Being a lawyer, for the hours of driving that followed I could think of nothing but how to get the fine reduced or the ticket withdrawn. After all, the police speed trap was such that even the most cartoonishly-stereotypical of deep-south state troopers would be impressed by its audacity.
I was reminded of this episode when in preparation for a discussion with some Ontario judges on innovation in the courts, I came across a treasure trove of statistical reports on the activities of the Ontario Court of Justice (analogous in level and role to the Provincial courts in other Canadian jurisdictions). Among the various OCJ reports was the following dealing with non-criminal and non-family matters: Provincial Offences Activity: Charges Received/Charges Disposed by Statute. Highway Traffic Act (HTA) matters dominate, but the scope includes everything else from liquor licensing, to employment standards to environmental protection to municipal by-laws. The reports describe these collectively as Provincial Offences Act (POA) matters.
Averaged across all judicial districts, speeding tickets account for 33.63% of all POA charges entering the court system between April 1, 2014 and March 31, 2015. In Espanola, the district relevant to my personal brush with the law, it’s 69%. Personal vindication as to my impressions of speed trap the aside, the real story of the statistics comes in what happens after an offence notice is issued.
High cost, low value
If the OCJ has a role to play in adjudicating speeding tickets, there is little indication it wants the job or that it is doing it well. [In fairness, there is no indication it is doing a poor job. The point is we don’t know. There is only so much you can glean from statistics.]
The good news is that of the 567,559 charges received in the Provincial Offences court for HTA s. 128 violations during the reporting period, the vast majority are resolved before reaching the trial date. Exact numbers are unavailable as entry and resolution dates can straddle different reporting periods, but it’s roughly 85%. As the stats don’t provide any insight on pre-trial appearances to set trial dates, the degree of pre-trial judicial involvement to this point is not described so even the good news may not be all good news.
The bad news is that for those that make it to a trial date, we have no insight on how many were resolved on the courthouse steps, how many resulted in a trial and what the results of those trial were. Consequently, we have no way of knowing if the courts had any useful role to play in the process other than as a bargaining chip or venue for negotiation. But of the roughly 82,000 matters that went this far, two things are abundantly clear. A significant amount of court time and resources (to say nothing of prosecutor, police, witness, public, counsel, etc….impacts) were allocated and the public gained almost nothing from it.
As an example of wasted resources, consider Toronto. Nearly half (48%) of speeding tickets issued in Toronto are not disposed of until the trial date (again, with or without a trial, we don’t know). This is over three times the provincial average. Why? Speculation from some is the Toronto police are notorious for not attending as witnesses on speeding ticket trials so the smartest move the driver can take is to roll the dice and let it go to court. If Toronto numbers somehow reverted to provincial averages, it would remove over 20,000 scheduled court appearances from Toronto court calendars every year. Might that take a little stress of the system?
For evidence of low value, over the same 12-month reporting period from which these statistics were drawn, the Ontario Court of Justice has made only five written rulings available on CanLII. Considering that one of the objections to moving certain classes of high volume dispute resolution away from the courts has been the potential detriment to the evolution of the common law, it’s hard to see any real contribution from the status quo either.
But wait, there’s more!
In confining this discussion to superficial insights from limited speeding ticket statistics, I’m barely scratching the surface. I haven’t even begun to tell you what the other reports show. It truly is a treasure trove. I’m very grateful the OCJ undertook the effort and made it available.
Other fascinating findings include:
These stats are important and much more would be welcome. But even within the scope available, there is much worth examining. So now that we have this information, what are we going to do with it to identify opportunities to learn and to drive efficiencies and improvements in the system?
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Beyond the Billable Hour: How Alternative & Contingency Fees Are Changing Law Firms (Sponsored) was originally published on Lawyerist.
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I am always somewhat pessimistic about the response of any group of lawyers to a presentation on the subject of wellness. Though I’ve spoken more than a few times on what lawyers can do to increase their sense of personal wellbeing and maintain a greater sense of balance while doing the work they do, my expectation remains that there will be at least a little eye rolling and more likely, significant disengagement with a topic that both touches on the personal and sometimes tends towards good parental advice.
Last week I joined fellow Slaw-yer Dan Pinnington and lawyer therapist Doron Gold on a panel at the CBA’s annual legal conference titled Tips & Tricks for Happier, Healthier Lawyers. I was there because of the work I do in malpractice prevention for Canadian Lawyers Insurance Association and because the wellness of lawyers is something I’m concerned about, both personally and professionally.
Once again, I was not optimistic: the session was scheduled at the end of a long day of conference programming, was one of three offerings in that time slot and stood in the path of the end of day reception.
Yet, approximately 80 lawyers not only showed up, but also listened attentively and engaged with the topic through questions, comments and discussion that continued into the reception that followed. It was clear that our often common-sense tips and tricks resonated with this audience and that there was value in reminding lawyers of the simple ways they can incorporate an orientation toward wellness into the everyday activities of their lives.
Maybe lawyers, or at least some, are coming around to the realization that “all work and no play” makes them vulnerable not only to career dissatisfaction, but also to experiences with poor mental health and addictions.
At the Council meeting the previous day, the CBA rolled out an announcement of the transformation of Lawyers Professional Assistance Conference into CBA Wellness and launched a new and free online course for lawyers, Mental Health and Wellness in the Legal Profession. Co-sponsored by the CBA, Mood Disorders Society of Canada and Bell Let’s Talk, the course is available to lawyers regardless of whether they are CBA members and is described as:
…a national self-learning program designed to provide Canadian lawyers, judges and law students education, supports and resources to assist them in understanding mental health and addiction issues. In this program, you will acquire knowledge about mood disorders, causes, symptoms and treatment options, fostering positive prevention strategies, treatment and recovery strategies for depression, anxiety, addiction and stress, reducing stigmatizing behaviours, attitudes and effects, and offering support and resources for recovery and the maintenance of wellness.
The goal of the program is laudable: “…participants will not only expand their own knowledge of these issues, but will then contribute to the building of a culture of wellness and self-care throughout the legal profession in Canada.”
Building a culture of wellness and self-care throughout the legal profession is key to enhancing the public profile of the profession, to drawing and retaining new talent into the profession, thereby supporting access to justice efforts and to reducing risk of malpractice, competence and quality of service claims against lawyers.
Healthy lawyers do better work. That’s not only in the public interest, but also in our own. I hope to someday see this kind of culture become pervasive among lawyers across Canada.
The Internet of Things (IoT) is surrounded by a lot of hype. There is great promise to be able to do and know all sorts of things when all our stuff can communicate. That could be almost anything, including thermostats, cars, garage door openers, baby monitors, appliances, fitness trackers, and the list goes on. Cheap sensors and easy connectivity means that it is becoming trivial to measure everything and connect almost anything.
But with great promise comes great risk. Our things will generate information about us – both direct and inferred. There are security issues if these devices can be controlled by third parties or used as back doors to gain entry to other systems. It may not be a big deal if someone finds out the temperature of your house – but it is a big deal if they can go through your thermostat and get into your home network.
These privacy and security issues must be dealt with up front and built into the devices and ecosystem.
The Online Trust Alliance (members include ADT, AVG Technologies, Microsoft, Symantec, TRUSTe, Verisign) just released a draft IoT Trust Framework to address this issue. The draft is open for comments until September 14.
I somewhat shamefacedly enjoy reading professional advice books (and fashion advice books, but I wrote that column already), and one of the most memorable pieces of advice I recall was that regardless of what career path one chooses, in order to have the best career prospects, one should aim to work in an organization’s main line of business. There is generally have more room to advance as an accountant in an accounting firm than in the accounting department of a company that primarily does something else. This is reflected in the different career paths and experiences of lawyers who choose to go into law firms and those who choose to have other careers, such as in-house counsel. And it puts law library staff in a difficult position, because generally libraries are housed within larger organizations: a firm library is part of a law firm, a university law library is part of the university, and a courthouse library is often part of a law society.
As the practice of law has changed, I see law libraries becoming removed from the core business of their parent organizations in some ways. Traditionally books were central to the practice of law. They were necessary as records of the law, and there was a large number required for adequate legal practice. They were also a substantial investment, because they were specialized, there was a small market, and there were a lot of them. This is leaving aside their role as prominently displayed status symbols — leather bindings aren’t cheap. All those books needed to be acquired, maintained, and navigated, which allied libraries closely with successful legal practice.
Over recent years the role of print books has diminished as online services become more comprehensive and fewer resources are required to maintain a viable legal practice. Now it is nearly possible to subscribe to a single online service and have access to everything a small practice needs, or to use CanLII or subscribed online services and supplement with a few additional titles. This is especially so in less research intensive areas of the law.
It has almost become uncontentious that the business value of many legal books like case reporters has become less than it costs to store them. Over my career I have spoken with several retiring lawyers who were willing to gift their law reporters to young lawyers for a charitable donation or something similar, but have never been able to find anyone to take them. This is simply to restate the common place observation that librarians’ role as guardians of books is passing from primary importance. If libraries and library staff don’t change, and the current trends of advances in computing and improved development of comprehensive resources, reducing the need to look in multiple places for legal resources, continue, the perceptions of funders will move away from the centrality of the position of the library.
Two buzz phrases of fairly long standing in libraries are knowledge management and competitive intelligence. They have gained varying levels of traction in different environments, but they both have important elements for the future of “libraries” in legal organizations, because both of them are ways of conceiving what information focused staff do in ways that bring it closer to where legal businesses derive their core values.
Knowledge management is about improving the way organizations work by improving access to the core value of a law firm: the expertise of the people who work there. Without the people a law firm has little of value but the art on the walls. Every incremental improvement in the ways the organization uses the knowledge and insights of the people who work there contributes to its competitive advantage as a whole. Selling expertise is the core business of law firms and any ability to improve that salable expertise is an incremental improvement in firms’ businesses.
Competitive intelligence is a different function than knowledge management, but it is also directly related to improving the core business functions of finding new business, improving access to the information that will enhance the expertise of the firm, and providing actionable intelligence to improve decision making. These two modes of approaching information work reframe the idea of libraries’ work that is often abstract to decision makers as concrete drivers of value to the core business.
There is a ready example of a career that demonstrates the different career paths of those who work in organizations’ core businesses and those who don’t: in-house lawyers. Lawyers in law firms are profit centres, and lawyers in other organizations are cost centres. I have spoken to a lawyer who moved from a large law firm to a corporation as in-house counsel, and she said she was happy with the move and that there were many benefits, but she was treated as overhead. The resources allocated to her couldn’t be offset by the money she brought into the company and she was under pressure to reduce costs.
That said there are benefits to these career options. It is my observation that, especially for those early in their careers, working as a professional in an organization that doesn’t focus on one’s professional area can be an exciting career opportunity. Many people I have spoken to, and I myself, have got to do work that we never would have gotten to do so early in our careers if we were in workplaces with more people in the same professions.
There are some excellent opportunities and potential pitfalls in working for an organization that has a different primary business from one’s professional focus. Hopefully information professionals can move toward being more closely aligned with the primary goals of the organizations they work for. This will ensure that the work being done is integral to the success of the whole and not perceived as a expense that can be dispensed with.
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. Fernandes v. Araujo, 2015 ONCA 571
 As an intermediate court of appeal, we are ordinarily bound to follow our past decisions, even decisions with which we disagree. It is important that we do so. Our common law legal tradition rests upon the idea that we will adhere to what we decided in the past. As expressed by the Latin phrase stare decisis, we stand by things that have been decided. The rule of precedent provides certainly, consistency, clarity and stability in the law. It fosters the orderly and efficient resolution of disputes and allows parties to obtain reliable legal advice and to plan their affairs accordingly.
(Check for commentary on CanLII Connects)
2. Wake v Ruby, 2015 ONSC 4945
 Ms. Wake did not bargain for a successful bail outcome for Mr. Edwards. She did not bargain about how Mr. Ruby should perform his services. It might have been a bad bargain for her to pay $10,000 just for Mr. Ruby to show up and listen to the outcome of the bail hearing, but it was her bad bargain to make and, once again, all Mr. Ruby had to do to earn his fee was to show up, which he did not do.
(Check for commentary on CanLII Connects)
3. Simaei v Hannaford, 2015 ONSC 5041
 I understand that the original proponents of the legislation came from the health care field. Historically health care professionals have avoided apologizing to patients for mistakes out of fear the apology would be considered an admission of guilt in civil proceedings. Over time, thinking has changed. Many doctors, nurses and other health care providers felt that apologizing would initiate the healing process by acknowledging to a patient that harm had been done and by promoting open communication and accountability between patient and health care provider.
(Check for commentary on CanLII Connects)
The most-consulted French-language decision was Deguise c. Montminy, 2014 QCCS 2672
 En janvier 2010, le soussigné fut désigné responsable de la gestion particulière des cas de pyrite et de pyrrhotite dans la région.
 Il ne s’agit pas d’un recours collectif.
 Tous ces recours (regroupés dans 70 dossiers) sont entrepris soit par des propriétaires de maisons nouvellement construites (ou par les assureurs de maisons neuves agissant en subrogation) ou soit par des propriétaires de commerces qui ont vu les fondations ou les dalles de leurs constructions récentes se dégrader suite au gonflement du béton.
 La somme totale des dommages réclamés s’élève à environ 200 000 000 $.
(Check for commentary on CanLII Connects)
* 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.
Lawyers often choose all-in-one solutions when buying hardware and software, probably because it feels cost-effective to get a bunch of things bundled into one package. But when it comes to scanners, printers, and copiers, it is better to buy dedicated machines. You can be more productive with a ScanSnap and a good laser printer than you can be with a typical all-in-one machine.
First, you probably do not need a scanner, printer, copier, and fax machine. You probably just need a scanner and printer.
Copying is just scanning and printing without bothering to save the document in between. That is fine if you do not have digital files. But you should be scanning everything anyway. It will save time in the long run if you just scan documents and save them to your computer. Then you can print as many copies as you need, whenever you need to.
Fax machines, however, are not worth having any longer. Use an electronic fax service like HelloFax and you’ll never miss having a fax machine (or the cost of paper, supplies, and an extra phone line).
Those unnecessary functions are just bloatware. They add more things to the hardware that can break, and they add stuff you don’t need to to the software you use to operate the combo unit. What you’re left with is an okay printer and a not-very-good scanner.
If you are serious about going paperless — and it is hard to imagine why you wouldn’t be — you need a serious, dedicated document scanner. And while it’s all well and good to shop around, in the end there’s only one you should buy: the Fujitsu ScanSnap iX500. Once you use it, you’ll understand why your brilliant plan to save money with a printer/scanner/copier/fax machine is so misguided. It just isn’t very good at scanning, which is what you will be doing with it most of the time.
As for the printer, nearly any good laser printer will do — until you are trying to print out four copies of all your exhibits the night before a deposition or trial. Then you will wish you spent the money on a good laser printer. Any good workgroup printer will do; just don’t rely on a cheap laser printer unless you’ll never need to print large batches of documents quickly.
If you really want a copier, just get a copier. All-in-one machines aren’t really copiers, after all. They just scan and print without saving. Most document scanners have a “copy” mode that works the same way in tandem with your printer. Or just go to a FedEx Office store the very few times you will need one. (In fact, I cannot remember needing to make copies for any reason since I went paperless.)
The only real advantage to an all-in-one machine is the price. A good scanner and a good printer will probably add up to $800–1,000. You can get a laser all-in-one for under $200, and a decent one is still under $400. The problem is that even a good multi-function is still just an okay printer and a substandard document scanner. If you spend a bit more to get the right tools for the job, you will save a ton of time and aggravation in the long run.
Stay away from all-in-ones.
Originally published on 04-20-2011. Last updated on 08-19-15.
Featured image: “Man fixing photocopier” from Shutterstock.
Avoid the All-in-One Printer, Scanner, Copier, and Fax Machine was originally published on Lawyerist.