Shashishekar Ramakrishna and Adrian Paschke presented a paper entitled A Process for Knowledge Transformation and Knowledge Representation of Patent Law, at RuleML 2014: International Web Rule Symposium, held 18-20 August 2014 in Prague.
Here is the abstract of the paper:
Automated support to model and reason based on such modeled legal norms using expert systems, for its use scenarios such as court-filings or argumentation has increasingly become a subject of interest in last few decades. The core problem in all such automation is removing the vagueness embedded within legal texts/sections and this vagueness is due to the pragmatics involved. As of today, we believe, it is impossible for a system to handle any such problems dealing with legal pragmatics. This work proposes a process which acts a bridge between a legal practitioner and a knowledge modeler wherein, a legal practitioner provides the legal information pertaining to a section in a simpler form as required by the modeler. We also propose several knowledge representation formats to represent the information at each layer of the proposed process. Additionally during the course of the paper, we propose a mapping scheme from legal norms in natural language format to Controlled Natural Language (CNL) format and finally to a platform independent rule representation format.
Three years ago this week, Sebastian Thrun recorded his Stanford class on Artificial Intelligence, released it online to a staggering 180,000 students, and started a “revolution in higher education.” Soon after, Coursera, Udacity and others promised free access to valuable content, supposedly delivering a disruptive solution that would solve massive student debt and a struggling economy. Since then, over 8 million students have enrolled in their courses.
This year, that revolution fizzled. Only half of those who signed up watched even one lecture, and only 4 percent stayed long enough to complete a course. Further, the audience for MOOCs already had college degrees so the promise of disrupting higher education failed to materialize. The MOOC providers argue that completion of free courses is the wrong measure of success, but even a controlled experiment run by San Jose State with paying students found the courses less effective than their old-school counterparts.
OK round up of where the MOOC thingy got to. Turns out that MOOCs where not the thing that disrupted higher education.
The Canadian Association of Law Libraries (CALL) is organizing a live “tweet chat” on Thursday, September 25 with Fred Headon, Past-President of the Canadian Bar Association and Chair of the CBA Legal Futures Initiative.
The live chat on Twitter will take place from 12 to 1PM EST and the topic will be “Does the CBA Futures Report provide opportunities for law librarians? ”
The CALL website has details on how interested law librarians (and others) can join the chat.
People can read more about the CBA Legal Futures Initiative on the CBA Futures website.
Ask someone how much they worked last week, and they will probably overestimate the number by 5–10%, according to a study published by the Bureau of Labor Statistics. And the more someone thinks they worked, the greater their overestimate is likely to be, says the Economix blog at the New York Times.
Humans (well, American humans, at least) have really inaccurate memories when it comes to the time they spend working, in other words. We aren’t nearly as busy as we think we are, according to sociologist John Robinson, even if we feel like we are working all the time.
Lawyers are even worse when it comes to remembering billable time. Viewabill, a service that allows clients to see what their lawyers bill in real time, says that waiting until the end of the month to record your time means you are probably overbilling your clients by about 23%.Delayed Billing Adds Inaccuracy — And Cost
That number comes from Viewabill’s aggregated data. By comparing timely entries to delayed entries, co-founder David Schottenstein estimates firms that keep time regularly are saving their clients as much as 23%:
Viewabill thinks its software changes behavior through transparency, because clients can see the time as it is entered. If you know your clients can see what you bill in real-time, you are less likely to record all your time at the end of the month. (Again, Viewabill’s aggregated data bears this out.) Schottenstein says Viewabill is like an empty police car next to the freeway. Even if clients don’t check in very often, they could — and they can see when time was recorded no matter when they check in. This strongly encourages lawyers, to change their behavior.
— Viewabill (@Viewabill) February 10, 2014
— Viewabill (@Viewabill) February 10, 2014
You don’t need Viewabill to ensure your timekeeping is accurate, of course. But you do need to record your time as you work. The more frequently you record your time, the more accurate it will be. If you wait until the end of the month and then reconstruct your time, you are probably overcharging your clients.“Capture More Time!”
Many timekeeping products claim to help lawyers “capture more time.” Time Matters, for example, cites “[c]aptur[ing] billable hours and client expenses while you work to prevent revenue leakage” among its benefits. Rocket Matter says you can “Forget about losing track of precious billable time or expenses.” Amicus Attorney says it will help you “capture more billable time.” You can see similar claims from most practice management and timekeeping-and-billing software.
The idea is that, by making it easier to record your time, you will record it more frequently, so that you are less likely to miss things. This makes perfect sense, and it does turn out to be true, according to Schottenstein.
If you bill more frequently, you are likely to capture time you would miss if you tried to reconstruct your time at the end of the month. But, he says, your bills will still go down. That’s because you probably aren’t missing 23% of your bill. The time you overestimate you spent is almost certainly greater than any missed time you might catch with more-frequent timekeeping.Teaching Old Lawyers New (Timekeeping) Tricks
Whatever the benefits of real-time timekeeping, some firms really don’t want to do it. Or at least some influential partners at those firms don’t want to. Faced with clients who wanted them to use Viewabill, two large firms (one a prominent employment law firm based in San Francisco, another a large employment law firm in DC and Cleveland) mounted a spirited defense that included spreading a bunch of uninformed FUD about the cloud.
Why? Well, assuming the lawyers at those firms aren’t trying to pad their bills by 23%, the most-likely reason is that, as one firm admitted to Schottenstein, 80% of its billers do not put in their time until the last two days of the month. Apparently, they are willing to fight for their right not to change. You can’t always teach old partners new tricks, even if it means overcharging clients.
But clients are not yet insisting on real-time timekeeping and transparency. They probably will, eventually, no matter how hard the holdouts try to convince them not to. Eventually, those firms will be forced to accept greater billing transparency, and those partners will have to change. If that 23% figure is anywhere close to right, corporate clients will not stand for end-of-the-month billing for long. Sooner or later, they will make real-time billing a condition of representation.How About Alternative Fees?
If waiting until the end of the month to record time means you will be overbilling your clients, then you probably ought to stop it, and start billing in real time.
A partial solution might also be to stop using time to measure the cost of representation — at least when you don’t need to. If you quote flat fees or use subscriptions, unbundled services, or alternative fee arrangements, you can stop tracking time altogether. No timekeeping, no padding (inadvertent or otherwise).
Except sometimes hourly billing really is best, so don’t give it up entirely. Just use other options when they make more sense.
And when you do bill by the hour, consider doing it in real time. Don’t wait for your clients (or ethics boards) to find this article and start asking questions.Updates
Featured image: “Businessman and earning balance concept” from Shutterstock.
Technologies are finally infiltrating the Quebec judiciary. These technologies are mean to improve the judicial system and public access to justice.New mobile service for court listings
On September 3, 2014, Quebec’s Justice Minister Stéphanie Vallée launched an online service allowing lawyers to access court listings on their mobile devices (cellphones, tablets). These listings include schedules of upcoming hearings in civil, criminal and penal matters of the Superior and Quebec Court of Justice. Youth court cases are excluded.
The court listings on civil and criminal matters for all courthouses will be available online. In criminal cases, listings can currently be found for courthouses in Longueuil, Montreal, Quebec City, Sherbrooke and Trois-Rivières. The service is available on the website of the Quebec courts or directly at the following address http://roles.tribunaux.qc.ca.
This is in addition to the wireless Internet services already available in courthouses in Montreal and Quebec City since June 2014. The same Wi-Fi services will be implemented in other regions gradually to March 31, 2015. However, since March 28, 2013, Quebec’s courts adopted guidelines concerning the use of electronic devices in courtrooms, which include prohibiting the use of email, tweet or text from inside the courtrooms, among other measures.Online service for families and individuals
With a new online service for families, separated or divorced parents whose income has changed can use the web to update the amount of child support assigned for minor children without the intervention of the court, and at a lower cost.
The Service administratif de rajustement des pensions alimentaires pour enfants (SARPA) is administered by the Commission des services juridiques. It allows parents to check the admissibility of their situation online, and then fill out their request to modify their child support payments at a cost of $275 for individuals who are ineligible for legal aid.
In addition, an online dispute resolution pilot project to resolve small claims is scheduled to be launched in the fall by the Quebec government. The program was developed in partnership with the University of Montreal’s Cyberjustice Laboratory.Coming into force of the new Quebec Code of Civil Procedure
The minister also took the opportunity to point out that the threshold for small claims court could increase from $7,000 to $15,000 on January 1, 2015, if the legislative calendar permits, and provisions of the new Quebec Code of Civil Procedure are scheduled to come into effect beginning in the year 2016.Last words
Making the Quebec legal system technology savvy is a slow process compared to other provinces in Canada, and other countries. But the above initiatives show that the Quebec Ministry of Justice is finally taking the necessary steps to make the legal system more efficient, transparent, and accessible.
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.
(Excerpt: pp. 1-3)
There are five propositions that Canada’s law societies must accept if their statements as to what they refer to as their “concern about the access to justice problem” are to have credibility:
1. The precise statement of the nature and extent of the problem of unaffordable legal services is: “the majority of the population cannot obtain legal services at reasonable cost.”
2. The duty to make affordable legal services available to the population arises from the law that requires the law societies to regulate the legal profession and the monopoly it has over the provision of legal services. For example, in the province of Ontario, that duty of the Law Society of Upper Canada is made express and precise by the statutory duties created by the Law Society Act, s. 4.2 of which states:
4.2 In carrying out its functions, duties and powers under this Act, the Society shall have
regard to the following principles:
(1). The Society has a duty to maintain and advance the cause of justice and the rule of law.
(2). The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
(3). The Society has a duty to protect the public interest.
(4). The Society has a duty to act in a timely, open and efficient manner.
(5). Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.
2006, c. 21, Sched. C, s.7.
3. Therefore, if the problem of unaffordable legal services exists, it is the law societies’ fault that it exists. If the law societies had been sufficiently responsive to the population’s need for legal services, the problem would not exist.
4. Therefore, it is the exclusive duty of the law societies to solve the problem of unaffordable legal services.
5. If the law societies cannot make legal services available to the population, they have no purpose. Therefore a different management structure has to be put in place that can regulate the legal profession so as to make affordable legal services available.
Note that s. 4.2 of Ontario’s Law Society Act provides no exceptions to the Law Society’s duties in regard to: (1) the rule of law; (2) access to justice; and, (3) acting in a timely, open and efficient manner. It cannot be said, as the Law Society of Upper Canada’s history of failing to act would imply, that the unaffordable legal services problem is an exception to such duties. And dare Canada’s other law societies reject such duties because their law society legislation is less explicit as to their duties?
But as though to deny such duties, Canada’s law societies have allowed the problem to develop over decades without doing anything. That is because they do not accept the principle that the duty to solve the problem arises from their duty in law to regulate the legal profession. For example, there is a webpage within the Law Society of Upper Canada’s website entitled, “Your Legal Bill – Too High?” It begins: “The Law Society does not set fees for legal services and cannot reduce a lawyer’s or paralegal’s bill that you think is too high.” And it concludes, “If you have a complaint about your lawyer or paralegal that does not involve the amount of the bill, see the Law Society’s page on Complaining about a lawyer or paralegal.” Nowhere does either webpage say, “however, these are the proactive steps that we are taking to make legal services affordable,” followed by a list of such “steps” in proof of being sufficiently proactive. There are no such “proactive steps.” But if it is argued that in fact they do exist, then why for decades has the problem continued to grow worse?
If it is not the law societies’ duty to solve the problem, it is nobody’s duty. It cannot be government’s duty to deal with unaffordable legal services because such government intervention into lawyers’ fees would violate the principle of the independence of the legal profession from government intervention. If it is nobody’s duty, then that majority of the population that cannot afford legal services must accept as a perpetual reality, that they must deal with their legal problems without the help of lawyers. That is the conclusion one must draw from the Federation of Law Societies of Canada’s 2012 published text, Inventory of Access to Legal Services Initiatives of the Law Societies of Canada. Those “initiatives,” are existing, operative programs. They are of three types: (1) self-help programs; (2) “cutting costs by cutting competence” programs, by way of greater use of, students, paralegals, and “unbundled” legal services, wherein the client does more with the intended result that the cost will be lower because the lawyer does less; and, (3) pro bono charity, which, albeit commendable, is too small to have any significant impact upon the volume of legal services needed. Nor will it service those long and difficult cases that spend a year or two in the courts, requiring multiple proceedings, meetings, and the drafting of many documents; they being cases generated by all income levels of society. Accordingly, the first paragraph of this “Inventory of Initiatives” text defines the problem as being merely, “gaps in access to legal services.” The fact that the majority of the population cannot obtain legal services at reasonable cost is hardly a “gap” in the availability of legal services. It appears that the definition of the problem has been crafted to suit these operative programs, rather than an accurate definition of the problem used to determine the programs needed. If the answer to be accepted is that this “Initiatives” text was not intended to deal with the unaffordable legal services problem, then what published law society text describing operative programs does? There is none.
No democracy need accept the proposition that it must do without affordable legal services because the unaffordability of legal services is inevitable, and like the weather and uncontrollable economic forces, it cannot be changed. Nor accept that we are no longer a constitutional democracy. That majority needs a lawyer in order to make effective use of the Constitution, particularly so the Canadian Charter of Rights and Freedoms. For that reason the legal profession has traditionally been referred to as, “the gatekeepers of the constitution.” Now unaffordable legal services have cast us as the obstructers of the constitution. This situation violates the duties imposed upon the Law Society of Upper Canada by s.4.2 of Ontario’s Law Society Act, to maintain and advance the cause of justice and the rule of law, and to act so as to facilitate access to justice for the people of Ontario.
Meanwhile, these four types of damage caused by the problem are getting worse: (1) to the population in that there are many thousands of people whose lives have been damaged for lack of legal services; (2) to the courts in that they are being clogged, as judges have warned, by high percentages of self-represented litigants, because their cases move much more slowly than those that have lawyers; (3) to the legal profession in that it is shrinking and is predicted to have a very negative future of contracting and of law firms failing; and, (4) to legal aid organizations because it is politically very unwise for governments to fund them better with taxpayers’ money, to enable them to provide free legal services to more poor people, while the majority of the taxpayers cannot obtain legal services for themselves at reasonable cost. The problem must be causing more damage in one day than have all of the incompetent and unethically practising lawyers in the whole history of Canada. But the law societies have failed to be proactive about unaffordable legal services, but they are in regard to the much less serious problem of incompetent and unethical lawyers. Conclusion: the law societies do not accept the proposition that the law imposes upon them a duty to do all that it is possible for them to do, to bring about affordable legal services.
I’m pretty certain that most people, partly under delusion, at some time express the view that things aren’t as good as they were in the past. It’s usually wrong, of course. However, looking at the world of legal and professionally publishing, I wonder if I’m correct in thinking that it used to be enormously pleasurable, rewarding and creative but now appears, with some exceptions, to be desperately dull?
Its dullness is reflected in its lack of innovation, its shift away from new product development and its failure to excite and engage with its customers and with its own people. For me at least, on a scan of the main UK legal and professional providers’ web sites, their apparent lack of innovation serves to confirm the view. The use of the word “solutions” in the various web sites is almost as prolific as on the back of a plumber’s van and has as much meaning. A propos, we tend to think of solutions being applied to problems, hence generally a negative scenario. But what of responses to or generation and encouragement of opportunities for competitive advantage? Isn’t that about financial risk management combined with innovation, entrepreneurialism, creativity and expertise? Is the “there are no problems, only opportunities” mantra in decline?
In my view, the state of affairs is shown in the decline of profits, inability to grow and the sector’s lack of importance as an area of interest for managers and investors. Add to this the recent news of Lexis Nexis and Wolters Kluwer swapping legal publishing assets in Canada and Poland and one can assume that attempts are being made to make sense of respective strengths and weaknesses. Might Wolters Kluwer finally come to terms with its evolved position in the UK?
It may simply be, as a seasoned publisher suggested to me, that, as comments on Bloomberg Law indicate, the real action is no longer in publishing, as defined by the processes of editorial, production, product management, marketing, sales and product development but rather in other spheres, that are driven more by technology. He suggested that a recent graduate, presently steeped in the creation of mobile and tablet applications, is likely to be having the time of her/his life, seeing now as their moment. Obviously, if it’s true, it has to be great for those people but nevertheless I think it regrettable that the core professional publishing tasks may no longer be appealing.
I have a view as to why so many aspects of working life may be less interesting than previously, certainly but not exclusively in publishing. Perhaps from the early 1990s the extent to which employees, particularly those who are creative and knowledge workers, have been under the control of process management and system to do their jobs, has taken away the spark. Many of the opportunities for individual thought, application of personal intelligence, judgement, charisma and flair have been set aside in favour of project management rules and automated process systems. I was shocked recently to see an example of how far things have changed, seeing a Linkedin posting to try and find a suitable author/editor for part of a legal and finance publication. The reason was, allegedly, that “nobody wants to write any more, it doesn’t pay enough, they all have high chargeable hour targets and lots of the old ones have retired”There was a time when having all the right contacts and being in the midst of all the right people were key elements of the job. But then the publishing business in question has already made redundant any trained publishers it used to have and has outsourced most of its publishing functions to the Far East. In many large organisations, it seems that the business systems, keenly supported by back-office functions like finance, human resources, the monitoring of key performance indicators and information technology are the de facto management and sometimes the enemy of the brightest employees.
Whether, for example, the rigours of the likes of Lean Six Sigma process to provide goods and service at a rate of 3.4 defects per million opportunities is optimal, when applied to publishing activities, might be a matter of debate. I wonder, however, if it takes the fun out of it. Likewise, the various computerised project management software processes applied to everything are often a delight to the people in the project office but can often get in the way of successful outcomes, when the process becomes more important than the (sometimes financially measured) result.
Very recently I had experience of the absence of even senior employee power, authority and judgment, albeit in the rather more sensitive area of certain large financial transactions involving banking and financial institutions. Opportunities for “computer says NO” moments abounded, almost to the destruction of the deals in question, despite many well-meaning, intelligent and senior people doing everything in their restricted power to be positive. These were financial transactions, of course and we have learned much of late about the need for financial scrutiny and control. Still, more often than not, professional publishing businesses appear to be driven by constraints rather than opportunity and creativity. Sometimes humans need to have authority.
Perhaps surprisingly, some of the publishing entities that at first sight might look the most dull and unchanging, appear, in contrast to some of the publishers, to be quite dynamic. It’s usually quite difficult for law reporting to generate any excitement but maybe they are trying harder than the commercial publishers. In the UK, both the Incorporated Council for Law Reporting for England and Wales and the Scottish Council of Law Reporting have lately been going out of their way to promote their activities and images and to improve their service to existing and potential subscribers. In the former case, a fresh new web site, the hosting of related events, the use of video to promote their activities, active blogging and some well-placed PR activity serve to inform generally and remind us of their value. The Scottish equivalent , whose web site is designed and maintained by Justis Publishing, deserves congratulation of the quality and value of its five YouTube films listed on the site, on the role of law reports, together with related teaching materials. It might be that the law reporters are having an even tougher time than their commercial competitors, in a changing world in which innovation for them is difficult. The point is that they are trying hard, supported by creative and enthusiastic people in both cases. As is ever the case, the bigger the challenge, the more people rise to overcome it. The mainstream law publishers maybe have had it too easy until lately, the irony or perhaps hypocrisy of their changing situation being noted recently by David Worlock.
I have no doubt that in years to come, the bright young legal publishers of today will hark back to the earlier days of their careers which were full of challenge and adventure in contrast to that of their own successors. They’ll be wrong.
The event was hosted by Mercer University’s Center for Collaborative Journalism and the Sunlight Foundation, and was funded by a grant from the Knight Foundation.
The event Website is at: signup.unblight.org/
Projects discussed at the event are listed at: projects2014.unblight.org/
The hackpad for the event is at: https://unblightunconference.hackpad.com/
The Twitter hashtag for the event was: #unblightunconf
Zubedah Nanfuka has written a post describing the event: “UnBlight,” A community unconference on housing data.
The UNCITRAL Working Group on Online Dispute Resolution (ODR) meets next month in Vienna to continue discussion of model rules for international ODR. Here are the working documents for the meeting, and past meetings. .
The perspective of the project since its inception in 2010 has been to find a way to resolve high-volume, low-value disputes – not necessarily just consumer disputes, but many would be of this kind.
One of the problems has been to figure out a way to get both buyers and sellers into the ODR system, whatever it is (and there might be many such systems, with basic or generic rules.) Can they agree before the transaction, in general terms, to resolve any future disputes through ODR? If so, then the would-be purchasers may have some confidence that they will have some recourse if things go badly, and the merchants would want to participate to show purchasers they were trustworthy.
However, many legal systems, notably most of those in the European Union, plus Quebec, and some other places, do not recognize as valid an agreement to arbitrate made before an actual dispute arises. (Ontario has such a rule for family arbitrations.) The consumer – according to this principle – must know what the dispute is and his or her options for dealing with it, including by litigation, before he or she can be bound to arbitrate the dispute.
After much debate about the reality in a low-value international transaction of a consumer ever being able to litigate a dispute, the Working Group has divided the project into two tracks. One of them is designed for the no-pre-dispute-arbitration places, and a sequence of alternative dispute resolution procedures would culminate with further discussions between parties. The rules for the other track, a ‘real arbitration’ option, have not been developed yet.
One argument for the ‘real arbitration’ track is that awards arising from it could be enforced internationally under the New York Convention on foreign arbitral awards. However, is the Convention procedure really usable for an award from a ‘low value’ dispute? Is there much hope that the Convention would be used? Is it worth trying to design a system that assumes it will be?
Some people have expressed a concern that the ‘real arbitration’ advocates want arbitration so as to avoid consumer class actions under their domestic civil procedure. However, we are talking about international transactions here, and international class actions are not common, if they exist much at all. (There have been some across the Canada/US border.) Further, the UNCITRAL Rules, whatever legal form they ultimately take, will probably yield to mandatory rules of the member states. If the mandatory rules would prevent arbitration agreements from standing in the way of class actions, then the rules would be preserved for that purpose.
Perhaps the enforcement angle is the most important: if the Convention route is too expensive for most of the disputes using the new system, how does one get the award enforced? Some kind of closed-system sanction might work best. But would merchants want to join such a system if it were just going to be a talk shop in many countries? If consumers only stayed in the system for disputes they thought they would win, where is the attraction for merchants?
Some creativity is needed
* perhaps to find an enforcement mechanism that will work in a mediation-based process or a low-value dispute;
* perhaps to attract merchants to a system that in some countries will not produce certain results;
* perhaps to find a way to persuade the no-predispute-arbitation-agreement advocates that international litigation is not a credible alternative for resolving low-value cross-border disputes, so consumers give up little of value in signing on to a more rigorous dispute-resolution process that ends in arbitration.
Is the absence of a pre-dispute agreement to arbitrate a problem for you, or ‘normal’? How do you think the results of the ODR process should be enforced? Would you advise your merchant clients to participate in the system that UNCITRAL is creating?
How else should the ODR working group move forward?
Mustafa Hashmi, Guido Governatori, and Moe Thandar Wynn presented a paper entitled Modeling Obligations with the Event-Calculus, at RuleML 2014: International Web Rule Symposium, held 18-20 August 2014 in Prague.
Slides of the presentation are available at: http://www.nicta.com.au/pub?pslides=8116
Here is the abstract of the paper:
Time plays an important role in norms. In this paper we start from our previously proposed classification of obligations, and point out some shortcomings of Event Calculus (EC) to represent obligations. We propose an extension of EC that avoids such shortcomings and we show how to use it to model the various types of obligations.
At first glance your law practice might not seem to have much in common with Silicon Valley companies like Facebook and Google. However, in today’s rapidly evolving world, the ability to innovate and adapt is crucial for any business…including large legal firms and upstart solo practitioners. Here are seven lessons you can learn from successful tech startups in order to grow your business and improve your practice’s bottom line:1. Understand the key metrics shaping your business
As clients increasingly push for lower legal costs, it’s all the more critical to understand how metrics like realization rates (the difference between recorded time and the percentage of that time paid by clients) are impacting your short- and long-term profitability. According to Georgetown Law’s 2014 Report on the State of the Legal Market, the average overall realization rate in 2013 was 83.49%, down 8% from 2007, and well below the ideal target of 95%.
You should track metrics like billing, collection, and overall realization rates in order to see how you are trending over time, as well as compare your data with other lawyers in your firm or even with other firms. You can find more details about how to measure and apply metrics to your business in the paper “Realization Rates in Law Firms.”2. Differentiate: Don’t commoditize
To survive in the era of LegalZoom and RocketLawyer, you need to identify market opportunities beyond commoditized services. Think about the unique value you can bring to your clients by positioning yourself as a trusted advisor, instead of a billing agent.
If you do not bring added value to the table by building relationships and guiding your clients, you risk losing business to someone who does or being undercut by the low prices of an online service. Richard Susskind’s book, Tomorrow’s Lawyers, is a must-read for anyone interested in going beyond the commoditized offerings of other firms and legal services.3. Focus on the customer experience
Tech companies like Apple understand the difference between delivering an experience and selling a product. Lawyers need to think about the overall customer experience from intake to billing. According to Matt Dixon, the author of “The End of Solution Sales”, in an interview with the Harvard Business Review, numbers show that a customer experience with a trusted advisor leads to more repeat business, referrals, and revenue.4. Build out a team
Too many lawyers go the “pure solo” route, handling anything from client intake to billing to answering the phone themselves. However, successful startup founders have learned that no one person can build a successful business. Having the right team in place can yield massive productivity gains.
Audit your time on a daily basis and ask yourself: Is each thing I’m doing the best use of my time? What tasks can be delegated?5. Culture matters
We have all heard the stories of startups going to extreme lengths to shape company culture and keep employees happy: onsite massage therapists and yoga classes, along with free dry cleaning, hair cuts and oil changes. However, culture is more than just the perks; it’s what your company stands for, your missions and beliefs. When employees embrace a firm’s culture, they put their best work forward. A strong company culture increases employee loyalty, encourages teamwork, improves productivity, and leads to better customer relations.6. Leverage technology
Clients today don’t have any patience for firms that insist on dragging out work by using outdated tools. They want real-time updates via client portals, after-hours services, and instant delivery of completed work.
The right technology platform, whether it’s for billing or document automation, can be a strategic partner to help you scale and operate more efficiently. Let technology handle the busy work, so you can focus your time on your client’s needs that require individual attention and are worthy of your law degree.7. Think about the big picture
It is easy to get bogged down in the day-to-day grind…the next hearing, brief, or meeting. However, without high-level thinking, your firm can stagnate. Reflect on where your firm is now and where you want it to be. Point the ship in that direction and lean on your technology, team, and company culture to take you there. Don’t be afraid to think big and experiment.
Attendees at the upcoming Clio Cloud Conference can learn more about the future of law and the rapidly evolving technology landscape, including a keynote presentation from Richard Susskind, author of “Tomorrow’s Lawyers.” Save $100 when you register with this exclusive discount code for Lawyerist readers: Lawyerist-CCC14.
This document describes how to install and configure Git and GitHub. These are great tools to manage and administer a whole host of Git repositories and the associated permissions. So, these remain true blessings for users writing open source software, however, when writing a closed source software may not be comfortable in trusting the code to a third party server. To gain the much-needed flexibility and control on stuff like Github/BitBucket without hosting the git repositories on servers that lie external to the control of users, GitLab remains a Godsend!
GitLab is a wonder tool that offers a simple and user-friendly yet potent web-based interface to the Git repositories on your server, viz., GitHub. Users are free to host it on their own cloud server, control access in a custom-built manner, and the only factor limiting the repo size is the inbuilt storage space of the server.
Just in case anyone has a hankering to run there own “GitHub” or build an open source software community for a particular space, like law or government.
Slow day at the ranch, trying to get over this cold or whatever the current dread disease is. Also a chance to try out some stuff on the old blog.
This is a status update, so I don’t need a title and it gets fed to various other places like Twitter and Facebook.
Some of the most fundamental rules governing the ethics of lawyers relate to attorney advertising. Don’t over-promise in your ads, include basic disclaimers, and never offer your services to someone you know is already represented.
So what do you do when another lawyer is trying to solicit your client?
On the one hand there is the issue of whether to report unethical conduct to the proper regulators. In brief, in many states there is some obligation (or at least encouragement) to report lawyers who violate the rules.
On the other hand, there is the issue of keeping your client while still meeting all of your own ethical duties.Determine Your Client’s Knowledge
The Unsophisticated Client: Some clients are not particularly sophisticated, especially when hiring lawyers, and will not realize the issues raised by solicitation. They may be easily swayed to hire the soliciting lawyer without realizing the impact on their own case and fees. Of all the types of clients, it is this one you need to be most concerned about protecting their interests, beyond protecting your own bottom line.
The Sophisticated Client: Other clients hire lawyers routinely, and do so primarily for business reasons. They understand the game well enough to know that there are lots of lawyers out there, and will be less easily sucked in.
The Lawyer Client: Some clients are lawyers themselves, and they understand exactly what the soliciting lawyer is doing and the unethical nature of the conduct. They are likely to be as peeved as you are by the contact.Determine the Offense
If the contact from the soliciting lawyer is a simple flyer or letter offering services in a very general way, much like the letters often sent to people who have gotten traffic tickets, it is far less likely to cause any issues between you and your client.
Consider, though, the soliciting lawyer who presents to your client a specific idea or general impression that implies you may be failing at your job. An ethics defense lawyer knows that the state bar has jurisdiction over lawyers practicing in the state and licensed by the bar. He also knows that lawyers facing bar prosecution chaff at the idea. The lawyer’s client, also an attorney, receives a solicitation pushing the client to hire new counsel and make a motion to dismiss on due process and jurisdictional grounds. The soliciting lawyer claims that the state bar has no authority over the client.
Even a lawyer client (or perhaps especially one) will be intrigued by the prospect of a sexy game-changing jurisdictional argument. If you never addressed this potential argument with the client, and if the soliciting lawyer is being really aggressive, you may have a real issue on your hands between you and your client.Courses of Action
There are a couple of options on how to proceed. You might call the soliciting lawyer and inform them that your client is represented, but that does not negate the damage already done. The client ultimately has the right to change attorneys at any time, so this will not protect your client relationship.
In an effort to preserve the relationship, you should explain to your client that the soliciting lawyer has violated ethical rules by soliciting them, and who knows what other rules they will violate. That said, be careful with your choice of words. You do not want to inadvertently slander a fellow attorney.
Another explanation owed to your client is the cost involved to switch lawyers. You do not want to imply that you are forcing or pressuring them to stay with you, but you should objectively explain the costs, such as paying the new lawyer to get up to speed on their case. Additionally, you can ask your client if there is any way to improve your services. That is a perfectly acceptable question to ask, and is good business practice.
Finally, consider whether you want to report the attorney to the ethical authorities. In some states it is mandatory to report unethical conduct (those following Model Rule 8.3 as written). In other states it is encouraged but not required to report unethical conduct. Some states are completely silent on the issue, but no state would prohibit you from reporting ethical transgressions.Balancing Act
It is obviously a problem to have other lawyers attempting to poach your business, but in our “gentlemanly profession,” we must also be careful in how we handle it. Clients need our protection from unethical would-be poachers, but they also have a right to choose their counsel. Balance the sophistication of your client with the nature of the soliciting lawyer’s conduct, and you will find the appropriate action to cover all your bases, protect your client, and hopefully keep your business.
From time to time, in each of our lives, someone enters and makes an indelible mark upon us. I’ve written here previously about some of those who have left marks on my life and influenced my career choices; another such person is Allan Fineblit, Q.C.
Allan is the outgoing CEO of The Law Society of Manitoba. He’s been the CEO of the Law Society of Manitoba (“LSM”) for some 16 years, through most of my years at the bar.
When I worked at the LSM, he was my boss. Nearly annually, I would sit down with him for a little chat about what else I might do at the Society. He always was ready with a creative idea for a new challenge to stem my growing boredom. Since I left the LSM to pursue other opportunities, he’s often joked that he was disappointed in my choice, as it damaged his record of successful long-term hires.
Allan has also left a significant mark on the legal profession in Manitoba, and throughout Canada. He leaves “big shoes” to fill at the LSM.
Allan’s style of leadership draws heavily upon his folksy charm. He is approachable and accessible, as demonstrated in his regular column in the Law Society’s Communiqué, Allan’s Odds & Ends, but he is equally comfortable in wielding the authority that comes with his position. When I worked at the LSM, I didn’t always agree with Allan’s decisions, especially those times when he “overruled” my recommendations, but he always communicated his decisions with respect, outlining his reasoning in such a way that one could clearly see how he got to his position.
What sets Allan apart from most is his vision. His view of the legal profession in Canada though rooted in where it has come from, boldly reaches upward and beyond where we are today to where we ought to be tomorrow. He is always looking ahead to how the profession could better meet the needs of the public it serves, but doing so with political acumen and pragmatism. I saw this when we worked together at the LSM, but even more clearly in the work he’s been doing on the Steering Committee for the CBA’s Futures Initiative.
Allan has recently announced he’s returning to private practice with Manitoba firm, Thompson Dorfman Sweatman LLP. This gives me a little chuckle as I have often heard him comment, in the context of dealing with issues of competence of members, that any lawyer with a practicing certificate is entitled to hang up their shingle and represent clients regardless how long they’ve been away from day to day legal practice. But Allan knows better than most of us what it takes to be a competent lawyer and I’ve no doubt he’ll ably demonstrate those skills as he hangs up his own shingle next month.
CASL – the Canadian anti-spam legislation – contains provisions that require certain disclosure and permission requirements on the installation of software that does certain things, or when software does certain things. This aspect of CASL has been overshadowed by the anti-spam provisions, in part because the software provisions are not in effect until January 15, 2015.
Unfortunately these software provisions are not easy to comprehend or apply in practice. There is a lot of uncertainty around their interpretation. And IMHO they are going to cause far more harm than good. There is a real danger that some software creators will simply not offer their products in Canada to avoid the pain of complying with CASL.
Yesterday CRTC and Industry Canada representatives were at a Canadian IT Law Association teleconference to collect questions from the IT bar to help them prepare FAQ’s or guides to the CASL software provisions. That guidance should be a big help to understanding the legislation.
Unfortunately they did not give us any hints at all on their thoughts on interpretation. They are aiming to publish their material in November or December, which, as one participant commented, is far too late. Compliance will be more complicated than tweaking a EULA. Software vendors will require time to create new processes and verbiage to comply. Then back that up through an effective lost 2 weeks over the holidays, and the time it will take to digest and advise clients on what they have to do….
Recently, I’ve heard from more and more clients that they’ve been contacted by a website and digital services provider offering to not only build them a new website but to provide content for the blogs on their site. Now, I could write a whole article on their websites, pricing model, quality of usability and practice of “re-renting” websites (including the content), but that will need to wait for another day. What’s really on my mind is the trend towards the “ghostwriting” of lawyer blog posts that we’re starting to see here in Canada.
In this instance, “ghostwriting” is whereby a person who is not a lawyer at the firm (and often a non-lawyer) writes a blog post (or article) that is positioned to clients and prospects as written by a lawyer of the firm. I’m not talking about a situation where an associate drafts a first version of a piece that is them re-worked by a partner. That’s a great way to teach associates about both writing for business development purposes in addition to honing their research skills. I don’t even refer to the process of having a marketing team member review the post to ensure that there isn’t too much “legalese” and that the subject line will grab the attention of the target audience.
I’m referring to a situation where an outside provider is paid to write content which is positioned by the firm as being written by their lawyer or law firm. If you feel that blog posts are a representation of the lawyer and their knowledge, is such ghostwriting “misleading’ under the CBA Rules of Professional Conduct? Does it undermine a lawyers fundamental duty “to act with integrity” when marketing their services?
Such providers are often aware of the ethics concerns, (they’ve been raised time and again in the US, where they’ve been providing these services for a number of years), and some have now moved to positioning the blogs as posted “On behalf of (client lawyers)”. Does this go far enough to circumnavigate the ethical issue? I don’t know, but it makes me, as a career legal marketer, feel squeamish.
Putting the ethical issues aside though, I would argue that this approach to law firm blogs equates to bad marketing and business development. All you have to do is look at the ten reasons for a law firm or lawyer to start a blog to understand why.
Having someone else write your blogs could still assist with lead generation and SEO (often the top selling points of such ghostwriting providers). However, many of the other reasons for blogging get lost in this model especially conveying your brand spirit, profile raising, knowledge sharing, and thought leadership. How can any of these possibly be successful if the lawyer (or at least the law firm) is not researching and producing the content themselves?
To demonstrate the point, here’s an example of a blog post that was posted “On behalf of …” a lawyer in Ontario (Since other ghostwriters aren’t so obvious about their practice.)
Breaking it down, this is where I see there are immediate problems with the post:
You may argue that it’s not too bad, considering how often law firms write about the same cases, but this is not the same. These posts are written about the same case by the same vendor, and in case you think I’ve just stumbled across one example, rest assured there are literally hundreds out there.
I came across another post from a Canadian law firm website that opens as follows. “NBA fans in Alberta might be interested to know that Paul George, a star player with the Indiana Pacers, is seeking a paternity test for a child he may share with a New York woman.”The case, filed in NY, in which an Indiana based NBA player is looking for the trial to be moved to Florida, may be interesting, is it truly relevant to Canadians? Could the lawyer (or his ghostwriter) not find an equally interesting case north of the border?
A variation on this post was posted “On behalf of” by the same vendor a whopping 39 times in the US and Canada according to Google. Examples of opening sentences include;
So much for demonstrating your firm brand and thought leadership!
My advice as a legal business developer is simply this; if you want to blog, then make sure it works for you and your marketing strategy. Instead of purchasing content that could actually hurt your practice, there are other tactics that can achieve your goals. A few ideas include the following:
And if you still don’t feel that a blog can be a comfortable part of your marketing and business development strategy, then don’t blog. You just need to figure out what works for you.
Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.
For this last week:
1. R. v. Craig, 2009 SCC 23,  1 SCR 762
 Abella J. — The issue in this appeal is how to apply the forfeiture provisions for offence-related real property under ss. 16(1) and 19.1(3) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.* Two interpretive approaches are possible. Neither is free from difficulty, but one is, it seems to me, generally fairer than the other.
 The first approach views forfeiture orders as an aspect of an interdependent global punishment. This approach, which conceptually combines the forfeiture order with terms of imprisonment or other aspects of a sentence, leads almost inevitably to less jail time for those who have property available for forfeiture than for those who have none, on the theory that the accused has been sufficiently punished through the forfeiture order.
 The second approach sees the need for a separate inquiry into whether forfeiture is justified based on a discrete statutory proportionality test. This approach, supported by the structure and wording of the statute, seems to me to be preferable because it avoids the unpalatable possibility of trading property for jail time, and therefore ensures that the legitimate liberty interests of individuals will be protected in a more consistent way. In my view, the loss or retention of liberty should not depend on whether an individual has property available as a sacrificial alternative.
2. Fernandes v. Penncorp Life Insurance Company, 2014 ONCA 615
 In the case under appeal, it is common ground between the parties that an objective of the insurance policy was to secure a psychological benefit and that, at the time, the parties reasonably contemplated that a failure to pay benefits could cause the respondent mental distress.
 As mentioned, on appeal the appellant concedes that there was some entitlement to mental distress damages but takes issue with the quantum of the award.
 In his reasons, the trial judge relied on Fidler and McQueen v. Echelon, noting that these decisions had upheld mental distress damages awards of $20,000 and $25,000 respectively.
3. William Bishop v. Law Society of Upper Canada, 2014 ONSC 5057
 The Hearing Panel found that the appellant knowingly assisted with dishonest and fraudulent conduct. The Hearing Panel rejected the appellant’s contention that he made reasonable inquiries about these transactions and was as much a victim of the fraudulent conduct as were the others. Based on a number of facts, many of which I have set out above, the Hearing Panel concluded that the appellant had also been both reckless and wilfully blind to the fact that the transactions were not bona fide. While the Hearing Panel relied on certain admissions that the appellant made during the course of his evidence, the Hearing Panel also stated that they did not otherwise accept the appellant’s evidence.
 On appeal, the Appeal Panel found that the Hearing Panel’s conclusions were reasonable ones to reach on the evidence. The Appeal Panel found that there was clear evidence, including the appellant’s own admissions, that he was aware that the transactions were fraudulent.
 In my view, the conclusions reached by the Hearing Panel, as affirmed by the Appeal Panel, are unassailable. Perhaps anticipating that eventuality, before this court the appellant changed tack somewhat and submitted that he was duped by his clients and should, consequently, have at most been found guilty of the lesser offence of failing to be on guard against being so duped instead of the more serious offence of participating or knowingly assisting in dishonest or fraudulent conduct. If that conclusion was reached, then the penalty of revocation would clearly be inappropriate.
The most-consulted French-language decision was R. v. Sault Ste. Marie,  2 SCR 1299
Le critère primordial devant servir à déterminer s’il y a multiplicité devrait être d’ordre pratique et fondé sur la seule justification valide de la règle s’opposant à la multiplicité: l’exigence que l’accusé sache de quoi il est accusé et que l’ambiguïté de l’accusation ne lui nuise pas dans la préparation de sa défense. En l’espèce, il n’y a rien d’ambigu ni d’incertain dans l’accusation. Le paragraphe 32(1) porte sur une seule question, la pollution, et une seule infraction générique a été imputée, en essence «la pollution». Puisqu’il ne s’agit pas d’une accusation multiple, il est inutile d’examiner la question de savoir si un défendeur peut opposer la multiplicité pour la première fois en appel.
En ce qui concerne la question de la mens rea, la distinction entre l’infraction criminelle réelle et l’infraction contre le bien-être public est de première importance. Dans le cas d’une infraction criminelle, la mens rea doit être prouvée et l’élément moral exigé pour qu’il y ait condamnation exclut la simple négligence. Par contre la «responsabilité absolue» entraîne condamnation sur la simple preuve que le défendeur a commis l’acte prohibé; aucun élément moral n’est nécessaire. L’approche correcte est de relever le ministère public de la charge de prouver la mens rea, compte tenu de l’arrêt Pierce Fisheries, 1970 CanLII 178 (CSC),  R.C.S. 5, et de l’impossibilité virtuelle dans la plupart des cas d’infractions réglementaires de prouver l’intention coupable et, de plus, de rejeter la responsabilité absolue et d’admettre la défense de diligence raisonnable. Il est loisible au défendeur de prouver qu’il a pris toutes les précautions nécessaires. Alors que la poursuite doit prouver au-delà de tout doute raisonnable que le défendeur a commis l’acte prohibé, le défendeur doit seulement établir, selon la prépondérance des probabilités, la défense de diligence raisonnable. En conséquence, trois catégories d’infraction sont maintenant reconnues: (premièrement) les infractions dans lesquelles la mens rea, doit être établie; (deuxièmement) les infractions de «responsabilité stricte» dans lesquelles il n’est pas nécessaire d’établir la mens rea mais pour lesquelles la défense de croyance raisonnable à un état de fait inexistant ou la défense de diligence raisonnable seront recevables; et (troisièmement) les infractions de «responsabilité absolue» où il n’est pas loisible à l’accusé de se disculper en démontrant qu’il n’a commis aucune faute. Les infractions criminelles dans le vrai sens du mot tombent dans la première catégorie. Les infractions contre le bien-être public appartiennent à première vue à la deuxième catégorie. Les infractions de responsabilité absolue sont celles pour lesquelles le législateur indique clairement que la culpabilité suit la simple preuve de l’accomplissement de l’acte prohibé.
* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.