Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from seventy recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
Combat Sports Law
McGregor v. Mayweather – A Fight That Can Only Take Place in a Courtroom
After a tabloid suggested UFC fighter Conor McGregor and presently retired boxer Floyd Mayweather Jr are in negotiations to promote a boxing match rumors of the bout continue to swirl. McGregor, who is still under contract with UFC owner Zuffa, is likely unable to legally fight Mayweather without Zuffa consent. Doing so would breach standard Zuffa contract terms and entitle them not only to injunctive relief but also a lawsuit for damages. …
Pierre Roy & Associés
La proposition de consommateur toujours en forte hausse au Québec en 2015
Le Bureau du surintendant des faillites a publié le mois dernier les statistiques sur l’insolvabilité au Canada en 2015 et le chiffre qui saute immédiatement aux yeux est l’augmentation des propositions de consommateur au Québec, soit 12% comparativement à 2014. Cette augmentation se traduit en 19 166 consommateurs québécois s’étant prévalus de cette solution pour régler leurs dettes en 2015. …
In Oudin v. Le Centre Francophone de Toronto, The Ontario Superior Court dismissed a motion for summary judgment brought by an employee who alleged that the termination provision in his employment agreement was unenforceable. This provision limited his entitlement to notice of termination to the minimum required by employment standards legislation. …
Retour sur les recueils
On oublie facilement combien il était fastidieux d’effectuer des recherches de jurisprudence avant les banques de données… L’offre de SOQUIJ a d’abord visé ce qu’on appelait «le mandat général», soit la diffusion de la jurisprudence des tribunaux de droit commun sur support papier. Notre rapport annuel de 1976-1977 résume: …
First Reference Talks
Accommodation of childcare
In recent times, we have seen the ongoing expansion of protections provided by human rights legislation. This has included the addition of new protected grounds, such as sexual identity, as well as the expansion of the definition of existing grounds. With respect to the latter, we have seen disability defined to include both casual and medicinal use of marijuana, miscarriage as a possible disability, and family status defined to include childcare and elder care obligations. …
*Randomness here is created by Random.org and its list randomizing function.
As a Family Law attorney trained in collaborative law and alternative dispute resolution, Jennifer Reynolds understands that the needs of her clients go beyond building a case, managing documents, and preventing future conflict. Finding ways to balance running a successful practice with the sobering aspect of helping clients during an emotional time has led Jennifer to find creative ways to improve her firm’s efficiency.
When starting her practice three years ago, Jennifer needed a solution that would help her manage her cases and streamline her cumbersome workflow. Jennifer turned to Clio legal practice management software. Custom fields, document automation, and customizable billing have become key features for Fresh Legal, that have helped Jennifer manage her caseload, provide exceptional customer service, and grow her business.
Download this free guide to learn how Clio customizations for Family Law can help you better serve your clients and evolve your practice on a daily basis.
Free Guide: A Family Law Practice Customized for Success (Sponsored) was originally published on Lawyerist.com.
While lawyers in Canada were debating whether licensed paralegals should have a limited role in family law, and before that contemplating entity-based regulation, alternative business structures, and the articling crisis, change was already happening without them.
This week the century-old American law firm, BakerHostetler, announced they have hired their first digital lawyer, ROSS, the artificial intelligence system based on IBM’s Watson. What can ROSS do for this firm, one of the largest in the country?
According to the ROSS website it can provide a highly relevant answer to a question posed in natural language. You don’t get thousands of results to pore through, and you don’t have to use keywords for your query.
The system is being used, for now, just in the bankruptcy group of the firm. But ROSS is probably the best hire the firm has ever had, being able to answer billions of documents to respond to questions, citing any answers it provides.
ROSS is likely also the firm’s best hire, as it only gets better with time and automatically tracks new developments in the law.
ROSS doesn’t take washroom breaks, doesn’t need to sleep, and will never go on vacation. In other words, ROSS is every law firm’s dream research lawyer.
It’s no surprise then that there are already other firms lining up to hire ROSS. Oh, did I forget to mention, ROSS is able to work for several different firms simultaneously without conflict – in fact ROSS can work for all of them.
We’ve become accustomed to saying that artificial intelligence won’t replace lawyers, and that’s still somewhat true. What ROSS is doing though is replacing the function that many junior lawyers play within law firms.
So you’re worried about all the Canadians who go to the UK and Australia to go to law school, then return home to do their NCA exams and get called to the bar through the LPP?
Or you’re concerned that licensed paralegals are eating into your practice in Ontario as the small claims jurisdiction is raised?
Maybe you’re concerned that the outside infusion of capital from non-lawyers will change the underlying fabric of our profession too much, too quickly.
Well, you’re too late.
BakerHostetler’s move this week announces that the future is already here.
Wait, you’re saying, we’re always years behind developments in other countries. Canadian law firms have years before this affects us.
Maybe you didn’t realize that ROSS’ co-founders are all from Toronto. Maybe you didn’t realize that ROSS CEO, Andrew Arruda, has a Canadian law degree.
Like so many Canadian stars who made it big in America (think Justin Bieber, Pamela Anderson, Dan Akroyd, Neve Campbell, etc.), Arruda is a legal rockstar bound to make it big there too.
And yes, he’ll come home with with his new associate for your firm as well. Or your competitor’s.
(La version française suite)
A New Legal Citation Guide for Canada on the Horizon
A group of interested individuals has come together to address the challenge of uniform legal citation in Canada.
There is currently no standard legal citation guide in Canada that has been uniformly accepted by all legal sectors and institutions. In addition to existing published citation guides, various courts, law schools, law journals and publishers have developed and are using their own guides to meet their particular needs.
The Canadian public has a right to an accessible standard of legal citation that will facilitate, not hinder their access to legal information and subsequently to justice. Members of the group believe that legal citation should be easier and more uniform than it currently is, and that Canadian lawyers should be taught in law school a citation standard that will carry them through to the practice of law and will be accepted by all Canadian courts.
Initial Working Group members include Melanie Bueckert (Manitoba Court of Appeal), Josée Chartier (Faculté de droit, Université de Sherbrooke), Neil Guthrie (Bennett Jones LLP), Michèle Leblanc (Faculté de droit, Université de Moncton), Munja Maksimcev (CAIJ – Centre d’accès à l’information juridique), Ann Marie Melvie (Court of Appeal for Saskatchewan), Louis Mirando (Osgoode Hall Law School), Kim Nayyer (University of Victoria Libraries and Faculty of Law), Laurel Watson (Court of Appeal of Alberta), and Sandra Wilkins (Law Library, University of British Columbia).Their goal will be to develop a Legal Citation Guide for Canada, which will be bilingual, freely accessible online, and ideally adopted by Canadian courts, law schools, and publishers.
Development of the guide will progress in steps, but will ultimately provide guidance for all materials that students need to cite for their work in law school and that lawyers and others will need to cite for legal and court documents. It will include rules, explanations and examples, and will also include some style elements, especially relating to footnoting and in-text references. It is not meant to be a style guide for legal journals or judicial decisions.
Throughout the development of the guide, key stakeholders will be informed of the project and progress, and an advisory group has been formed to provide feedback. If you would like to participate in an advisory capacity, please contact Kim Nayyer (firstname.lastname@example.org), liaison to the Advisory Group. For any other comments about the project, please contact any of the Working Group members.
Vers un nouveau guide canadien de citation juridique
L’uniformisation des méthodes de citation juridique au Canada pose un réel défi. Un groupe de travail a vu le jour pour examiner la question.
Au Canada, aucun guide de citation juridique ne fait actuellement l’objet d’un consensus au sein des acteurs et des institutions du secteur juridique. Aux différents guides de citation publiés et accessibles s’ajoutent, de surcroît, les normes spécifiques que se sont données les tribunaux, les facultés de droit et les publications ou les éditeurs juridiques pour répondre à leurs besoins particuliers.
La population canadienne doit avoir accès à une norme de citation juridique qui facilitera, sans le restreindre, l’accès à l’information juridique et, conséquemment, à la justice. Les membres du groupe de travail sont d’avis que la citation juridique devrait être simplifiée et uniformisée et que les juristes canadiens devraient apprendre, dans les facultés de droit, à respecter une norme de citation qu’ils pourront utiliser tout au long de leur pratique et qui sera acceptée par l’ensemble des tribunaux canadiens.
Le groupe de travail, composé initialement de Melanie Bueckert (Cour d’appel du Manitoba), Josée Chartier (Faculté de droit, Université de Sherbrooke), Neil Guthrie (Bennett Jones LLP), Michèle Leblanc (Faculté de droit, Université de Moncton), Munja Maksimcev (CAIJ – Centre d’accès à l’information juridique), Ann Marie Melvie (Cour d’appel de la Saskatchewan), Louis Mirando (Osgoode Hall Law School), Kim Nayyer (University of Victoria Libraries and Faculty of Law), Laurel Watson (Cour d’appel de l’Alberta) et Sandra Wilkins (bibliothèque de droit, University of British Columbia), a pour objectif d’élaborer un guide de citation juridique canadien, bilingue et gratuitement accessible en ligne, qui serait idéalement accepté par l’ensemble des tribunaux, facultés de droit et maisons d’édition juridiques au Canada.
Le guide sera élaboré par étapes, mais établira ultimement des balises pour tous les éléments de documentation que les étudiants doivent citer dans leurs travaux et que les avocats ou autres acteurs doivent citer dans leurs documents juridiques. Il comportera des règles, des explications et des exemples, ainsi que des considérations de style, notamment en ce qui a trait aux notes de bas de page et aux références intégrées au texte. Le guide ne se veut toutefois pas un guide du rédacteur pour les revues juridiques et les décisions judiciaires.
Tout au long du processus de développement du guide, les principales parties intéressées seront tenues informées de l’avancement du projet. Un comité consultatif a d’ailleurs été constitué pour donner de la rétroaction. Les personnes qui souhaiteraient jouer un rôle consultatif dans le cadre du projet peuvent communiquer avec Kim Nayyer (email@example.com) agente de liaison pour le comité consultatif. Pour formuler tout autre commentaire au sujet du projet, veuillez simplement communiquer avec l’un des membres du groupe de travail.
On one Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe. It’s a summary of all appeals and leaves to appeal granted, so you know what the S.C.C. will soon be dealing with (April 14 – May 11, 2016 inclusive).
Aboriginal Law: Métis & Non-Status Indians
Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 (35945)
Non-status Indians and Métis are “Indians” under s. 91(24) and can turn to the federal government. Federal jurisdiction over Métis and non-status Indians does not mean all provincial legislation re same is inherently ultra vires.
Criminal Law: Mandatory Minimums
R. v. Lloyd, 2016 SCC 13 (35982)
The one-year mandatory minimum sentence for a controlled substances offence, while permitting constitutional sentences in a broad array of cases, will sometimes mandate sentences violating the constitutional guarantee against cruel and unusual punishment. Where the law requires a one-year sentence, it violates the guarantee against cruel and unusual punishment in s. 12 and is not justified under s. 1.
Criminal Law: Enhanced Credit for Pre-Sentence Custody
R. v. Safarzadeh-Markhali, 2016 SCC 14 (36162)
Removing a sentencing court’s discretion to give any enhanced credit to offenders for pre-sentence custody, if denied bail primarily on the basis of criminal record, violates the right to liberty guaranteed by s. 7, and is not justified under s. 1.
Criminal Law: Wiretaps; Third Party Production Orders
World Bank Group v. Wallace, 2016 SCC 15 (36315)
The World Bank Group posited that documents ordered produced by the trial judge are immune from production, and also not relevant on a “Garofoli application”. The S.C.C. agreed.
Mortgages: Interest Rate
Krayzel Corp. v. Equitable Trust Co., 2016 SCC 18 (36123)
Rate increases triggered by the passage of time alone do not infringe the federal Interest Act. Rate increases triggered by default do.
Real Property: What Runs with the Land
Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19 (36301)
An “Incentive Payment” is not an interest in land (and therefore cannot run).
Leaves to Appeal Granted
Charter: Voting Rights
Frank v. Attorney General of Canada, 2015 ONCA 536 (36645)
Can Canadian citizens living and working in the U.S. vote in Canada, when they intend to return to Canada circumstances permitting.
Criminal Law: Bail
Her Majesty the Queen in Right of Canada v. K.A., 2015 ONSC (36783)
There is a publication ban in this case, in the context of an accused not residing within 200km of place of custody.
Criminal Law: Telewarrant Validity
R. v. Clark, 2015 BCCA 488 (36813)
When are telewarrants (here to investigate electricity theft supporting a grow-op) valid.
Immigration: Inadmissibility For “Serious Criminality”
Canada (Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237 (36784)
When are refugees inadmissible for “serious criminality”.
Criminal Law: Parole
Attorney General of Canada, Parole Board of Canada v. Way, 2015 QCCA 1576 (36746)
Can the mandatory oral hearing held by the Parole Board for reviews following the suspension, termination or revocation of parole or statutory release be constitutionally eliminated.
Contracts in Québec: Renewal Clauses; Injunctions
Uniprix inc. v. Gestion Gosselin et Bérubé inc., 2015 QCCA 1427 (36718)
When can renewal clauses be triggered.
Professions in Québec: Individual or Association Appeal Rights
Attorney General of Quebec v. Guérin, 2015 QCCA 1726 (36775)
Is it the professional individually or the professional association who appeals a professional fee dispute.
Torts: Proving Psychological Injury
Saadati v. Moorhead, 2015 BCCA 393 (36703)
What are the evidentiary options to prove a psychological injury.
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : Reconnu coupable d’avoir omis de déclarer l’exportation d’une somme de 17 270 $, soit l’infraction prévue à l’article 74 (1) a) de la Loi sur le recyclage des produits de la criminalité et le financement des activités terroristes, l’accusé est condamné à payer une amende de 3 300 $.
Intitulé : R. c. Dumais, 2016 QCCQ 2082
Juridiction : Cour du Québec, Chambre criminelle et pénale (C.Q.), Montréal, 500-73-004001-133
Décision de : Serge Cimon, juge de paix magistrat
Date : 23 mars 2016
PÉNAL (DROIT) — détermination de la peine — produits de la criminalité — interprétation de laLoi sur le recyclage des produits de la criminalité et le financement des activités terroristes — omission de déclarer une somme d’argent (17 270 $) — accusé âgé de 34 ans — antécédents judiciaires — revue de la jurisprudence — fourchette des peines — provenance de l’argent — état de santé — somme d’argent saisie — absence de fouille arbitraire — dénonciation — dissuasion spécifique — amende.
Prononcé de la peine.
L’accusé a été reconnu coupable d’avoir omis de déclarer l’exportation d’une somme de 17 270 $, soit l’infraction prévue à l’article 74 (1) a) de la Loi sur le recyclage des produits de la criminalité et le financement des activités terroristes. En décembre 2012, il s’est rendu à l’aéroport pour y prendre un vol international. Des douaniers ont procédé à un contrôle alors qu’il circulait sur la rampe d’embarquement menant à l’avion. Il a reconnu qu’il avait en sa possession une somme supérieure à 10 000 $. La poursuite réclame une amende de 3 300 $. L’accusé soutient qu’il est déjà suffisamment puni pour son geste puisqu’il subit une perte nette de 36 000 $ en raison de la confiscation de la somme et du fait qu’il doit toujours rembourser celle-ci, qu’il avait empruntée à un ami. Il ajoute qu’il n’a jamais menti aux douaniers ni tenté de dissimuler l’argent lors de son interpellation. Finalement, il allègue que le tribunal devrait tenir compte du fait que peu de critères encadrent le pouvoir discrétionnaire des douaniers dans leur choix d’accorder ou non une chance aux voyageurs qui ne se conforment pas à leur obligation de déclaration.
La loi a pour objectif de mettre en oeuvre des mesures visant à détecter et à décourager le recyclage des produits de la criminalité et le financement des activités terroristes, de combattre le crime organisé en fournissant aux responsables de l’application de la loi les renseignements leur permettant de priver les criminels du produit de leurs activités illicites, d’aider le Canada à remplir ses engagements internationaux dans la lutte contre le crime transnational et de renforcer sa capacité à prendre des mesures pour protéger son système financier. Elle incorpore dans la sphère juridique interne du Canada certaines de ses obligations internationales, notamment celles provenant des recommandations adoptées par le Groupe d’action financière sur le blanchiment de capitaux, dont la recommandation 32, sur les «passeurs de fonds», prévoit que les pays doivent mettre en place des mesures pour détecter les transports physiques transfrontaliers d’espèces, notamment par un système de déclaration, et s’assurer que des sanctions efficaces, proportionnées et dissuasives soient appliquées aux contrevenants. Quant à la fourchette des peines, il ressort des décisions citées par la poursuite que les tribunaux accordent la priorité aux objectifs de dénonciation et de dissuasion et imposent généralement une amende de 5 000 $ à l’occasion d’une poursuite sommaire et un emprisonnement variant de 12 à 18 mois, à purger dans la collectivité, à l’occasion d’une poursuite par mise en accusation. La provenance légitime de l’argent constitue un facteur neutre. En l’espèce, rien ne permet de rejeter l’explication de l’accusé voulant que l’argent provienne d’un prêt consenti par un ami. Par ailleurs, l’importance de la somme en jeu constitue un facteur aggravant. Or, la somme non déclarée par l’accusé est l’une des plus basses répertoriées jusqu’ici par les tribunaux québécois. La réelle collaboration de ce dernier avec les autorités représente une circonstance atténuante. Cependant, le fait qu’il ait déclaré aux douaniers être en la possession de plus de 10 000 $ constitue un facteur neutre. La loi est fondée sur le principe de l’autodéclaration, selon lequel tous les justiciables sont tenus de dire la vérité. Au moment des faits, l’accusé était âgé de 34 ans et avait une expérience des vols internationaux. D’autre part, son état de santé ne constitue pas en soi un facteur décisif. L’accusé est en rémission d’un cancer et il travaille à titre de mécanicien. Il y a lieu de donner priorité à l’objectif de dissuasion du fait qu’il a plusieurs antécédents judiciaires. Enfin, la saisie de l’argent ne constitue pas un facteur atténuant. Premièrement, l’accusé n’a pas allégué être victime d’une saisie arbitraire de la part des douaniers et, deuxièmement, faire droit à sa prétention reviendrait à lui permettre de plaider sa propre turpitude. De plus, le tribunal n’a pas à intervenir à l’encontre de la compétence expressément accordée par la loi au ministre de la Sécurité publique ou de celle de la Cour fédérale. Par conséquent, l’accusé devra payer une amende de 3 300 $ dans un délai de six mois.
Le texte intégral de la décision est disponible ici
Create and join virtual networks as easily as chat rooms or conference calls. Connect almost any kind of device or application. Communicate peer-to-peer with standard protocols like TCP/IP over networks that appear and behave just like standard Ethernet or WiFi.
Perhaps it didn’t make as many waves in the rest of the country, but the Quebec legal community has been buzzing about a report on the employment situation among young lawyers in Quebec published by the Young Bar Association of Montreal (YBAM) earlier this year. This organization, which represents close to 5,000 members, compiled impressive amounts of data to establish trends about young lawyers’ job prospects.
Essentially, things are bad for young lawyers in Montreal and they are getting worse. The issue has now made its way into mainstream media, with La Presse running a few articles last week about high unemployment rates in the legal profession. The Barreau du Québec even addressed the issue last week when it published a note on its website to position itself on a few hot topics addressed in the YBAM report. Among those topics, the following two merit a closer look: the idea of imposing quotas on the number of lawyers in a province and innovation in the legal industry.
First, even very established lawyers have to admit that the equilibrium between supply and demand for legal services is a moving target these days. Some would claim that the changes are coming from shifts in the demand side, but seeing as the legal market is not perfect competition, we would like to suggest otherwise. Indeed, by imposing barriers to entry on potential suppliers, universities and bar associations have historically restricted the supply of legal services with obligatory law school degrees and licences to practice. These hurdles for potential service providers have contributed to establish the value perceived by clients. However, the very foundations of these barriers are currently being shaken by new technology, among other things.
Nowadays, access to information is such that a reasonably curious person with a solid base can find answers to a number of legal questions online. Online databases like Canlii are free and hundreds of law firms publish online content in various formats. Therefore, if you know the right keywords, odds are you can find at least a portion of an answer to most of your questions. While it is true that this information is less nuanced and complete as your local law school curriculum, it can more often than not “get the job done” for someone looking for a quick fix. Ultimately, the perception of value attributable to the knowledge gained during years in university is diminished by this access to information.
The licence to practice, on the other hand, is still as pertinent and valuable. However, while various provisions throughout the country forbid non-lawyers from rendering legal opinions and things of the sort, it doesn’t restrict non-lawyers from performing dozens of tasks currently performed by legal experts, but that aren’t exclusive to them. These different operations represent a colossal volume of billable hours for the legal community. Factor in the fact that the number of licence holders in a province like Quebec has grown by 98% in the last 20 years, to match a 15% population growth in that timespan, and that outsourcing and legal tech can now replicate some of the work done by legal professionals for less money and it isn’t difficult to see that the price equilibrium of yore is no longer relevant. Supply and demand have shifted dramatically, in a manner similar (and yet so different) to what we are seeing in the taxi industry.
As a solution, the YBAM suggests that quotas could help balance the supply, especially when considering that the Quebec Bar exams passing rate hovers around 80%, much higher than in some other places in North America.
Quotas would cause huge headaches for law school, bar associations as well their members, which is enough of a reason for that specific item in the report to never see the light of day, no matter how well reasoned it is. However, as a nerdy observer, I wanted to dig deeper and see how these quotas could materialize in real life:
While the YBAM is most likely on the right track, it’s not a simple decision.
Let it be said: innovating in the legal profession is not easy, particularly in Quebec, where a different legal system makes scaling any software product that much more difficult. Great innovation, therefore, takes a lot of time to develop, especially in a context where incentives to innovate seem quite remote for successful lawyers who actually have the capital to try their hand in such a venture.
Academic institutions must now pick up the baton and take every possible measure to foster an innovation-friendly climate in a low-risk environment. The YBAM suggests that law schools incorporate practical management skills into their curriculum, which in turn could help create a more innovative environment. It’s a great thought, but competitions, conferences and workshops must also be put to contribution at the same time in order for young lawyers to feel the drive to create something new. Initiatives like the Legal Innovation Zone at Ryerson are perfect examples of that, but we are still light years away from where we should be in this extremely fragmented market.
As a final thought, it is also imperative that incentives be put in place by innovative firms to recruit high-end legal talent and mix it with their tech expertise and processes. Advisory boards are nice, but hands-on involvement from top-flight talent is probably necessary to build the Next Big Thing. There’s still a lot of work to be done, but seeing a group with 5,000 members like the YBAM create such a stir is a sign that things are going in the right direction.
Alex Thibault is both an M&A lawyer and Vice-President at Edilex, a legal business finding ways to deliver legal services more efficiently using technology. He supervises marketing and business development for the company and sits on the board of directors. He regularly gives conferences on business development, technology and the future of legal services. Alex can be found on Twitter at @alex_thibault
The first meeting with a potential client is critical. You have to get the key information about the potential case and decide whether or not to represent the potential client. And, of course, the potential client has to decide if they want to hire you—all this hinges on your initial client meeting.Obtain the Key Information
Your time is valuable and, like many lawyers, you may charge nothing for an initial meeting.
In a short amount of time, you will need to gauge the costs and benefits of taking your potential client’s case.If you practice in only one area, like bankruptcy, chances are good that you already have client checklist, but here are some of the things you will need to determine in an initial meeting:
Additionally, remember that the easiest client to fire is the one you never agree to represent. After a client hires you, it gets much more difficult to back out of the case. And depending on how far into the case you go, it may become impossible.
You should also ask whether your potential client has met with any other lawyer about their issue. If other attorneys have turned them down, the case might not have as much merit as you thought.
If you don’t want to ask this question directly, you could ask, “how did you find out about me?”Determine the Goal of Your Potential Client
Sometimes it is simple to figure out what a client wants to accomplish by hiring you. They are direct in their description of the key facts, and they assertively tell you what they expect you to accomplish.
Often, this isn’t the case. By the end of the “getting information” section of your meeting, if you haven’t figured out what exactly it is that your client wants, it’s best to just ask. You don’t need to be rude or condescending; just come right out and ask.
These may sound simple, but nothing is more important than understanding your client’s goals by the end of the initial meeting. If it isn’t obvious, don’t be shy about asking.
One way to absolutely cement the client’s goal is to have them write it down. Writing down the client’s goal right away can be especially useful later in the case if your client is reluctant to accept a settlement offer giving them everything they initially wanted.To Google or Not to Google
Before you take on a client, you may want to find out more about them. No law prohibits a quick computer search on a prospective client. In some cases, it may be expected.
A search may be justified depending on the type of case they have. A criminal background check may be sensible or even necessary. There are lawyers who tell prospective clients they will do Internet searches before they take on a case. Sometimes merely telling a client that you will be doing some background work on them gets them to divulge what you will find. This gives your potential client a chance to explain what they may find before you discover it on your own.Auditioning is a Two-Way Street
When meeting with your potential client, remember they are determining if they want to hire you. Even in an area in which you aren’t an expert, the single most important thing you can do to convince a potential client that they should hire you instead of another attorney is quite simple:
Listen to what the client says. If they feel rushed or not heard in the initial meeting, they may take their good case to another attorney.
I have interviewed over 28,000 clients, and the only rule I always try to follow is that I let the interview “breathe” as much as possible. As long as the client is giving me relevant information, I let them tell me their story in their own way. I will occasionally nod but generally I don’t even use verbal cues. I want them to tell the story as uninterrupted as possible.
That said, it’s also important to appear efficient. The client may be considering a relationship in which they will pay you by the hour. Convince them you won’t be wasting their money once they hire you. I try to minimize note-taking, but I do write down a few key points — jotting down names, dates, and key numbers are signs to the client that you are actually listening, not simply waiting for your chance to talk.
Once they are done with their story, go back and confirm key issues and ask clarifying questions about what they have covered. Last, ask questions about anything they did not address.
In a 2005 study about clients satisfaction/dissatisfaction with big law firms, fifteen percent of the respondents said what bothered them about their lawyer was “lack of client focus, failure to listen, non-responsiveness, arrogance.” This is one area where solos can easily outperform your big law counterparts. Take the time to listen.
Depending on whether you are an expert in the field, you may be able to offer some advice at the first client meeting. If so, it makes sense to outline your client’s strengths and weaknesses. I frequently talk to clients about two things:
I don’t make guarantees about how a court will rule (and neither should you). But if there are similar cases you know about — or even better, that you worked on — use that to demonstrate your confidence in the case going forward.
One thing I try to avoid is the use of cases or statutes with initial client meetings. While some sophisticated clients want to know the exact statute and case that will help or hurt his or her case, most do not. Instead, your client counts on you to be able to translate complicated legal issues into understandable, conversational English.Ending the Interview
There are three approaches to ending an initial interview with your potential client:
Whatever your next step is, make sure that it is absolutely transparent to the client. If nothing more will happen until they produce a key document, tell them. If you want to talk the next day, set a time to call or meet.
Originally published 2015-04-06. Republished 2016-05-13.
Featured image: “Business partners shaking hands as a symbol of unity, view from the top” from Shutterstock.
What do Ukraine and Uganda have in common, besides the U at the beginning of their name? An elaborate justice needs and satisfaction survey was just done in both countries. The Ukraine results were presented on 1 March. The Uganda results on 14 April.
First, some observations to put this in a wider context.
I hope such surveys are a trend. They should be. The UN has announced that it will hold its first ministerial meeting in July to review progress regarding implementation of the Sustainable Development Goals (SDGs). We are, of course, mostly interested in Justice Goal 16. As I pointed out in an earlier column: it is a tremendous advance that data is a core pillar for such a review, despite the fact that the decision of the UN member states to base such reviews “primarily” on “national official data sources” remains an area of concern. Not all governments have justice data, like justice data, or are transparent with justice data. From that perspective, it is important that governments, civil society and international organisations stretch the word ‘primarily’ to its full potential. In Ukraine and Uganda, this was done. Both surveys were conducted in consultation with the governments, with international organisations, and with civil society organisations. The multi-stakeholder process of doing and launching them was as important as the outcomes they produced.
A second observation concerns action. Collecting data about the functioning of a justice system has a purpose: it should form the foundation for better outcomes. Based on data, you have a good idea of what the justice needs of citizens are: by problem, by gender, between urban-rural, age groups, regions, and by procedure. By making that data public you make everybody aware of those justice needs and spur people into action. Informed by data you can target your limited resources to where they can have the most impact, for the most people. Informed by the data you can start creating change coalitions around specific justice problems. Leaders will emerge who want to bring people together to solve them. Data can help those change coalitions formulate good strategies, underpinned by sustainable funding models. And, lastly, data can tell you whether you are actually being successful in what you are developing as an improvement. But getting from data to action can be tough. Many good surveys and data sets have died a slow death on meeting tables and in desk drawers. It requires a critical mass people that can understand data. It needs political action, either led by able political leaders or pushed for by citizens. It requires management: making plans and executing them. And lastly, being creative about finding funding for actions plans is also a critical factor. In short: data is only the beginning.
So what can we say about the outcomes of these two surveys? This column does not hold enough space to do justice to the richness of the data, so I will restrict myself to a few key insights.
When we look at prevalence of justice problems we see that 88% of Ugandans and 54% Ukrainians encountered a serious justice problem in the last four years. That’s more than half. By comparison: in Yemen, a staggering 94% was measured in 2014. In the Netherlands it was 46% according to a 2015 survey. However, one must be careful with comparing such percentages: a higher percentage does not have to mean ‘bad’. It could also be a signal of a lot of legal empowerment, which, as such, is positive.
Both in Ukraine and in Uganda around 40% of the respondents said they gave up on finding a resolution for their justice problem. Different reasons are cited, of which not thinking it would result in anything, not knowing what to do, and being worried that it might aggravate the situation stand out. In Yemen the percentage of those that gave up was 22%. In Mali it was 23%. These figures may be telling us that, generally, between a quarter and a third of citizens give up on pursuing a justice problem. That’s a lot of injustice being swallowed.
Then there is what I call the 5% problem: the fact that in most countries only 2-7% of justice disputes end up in a court. Ukraine and Uganda are like every other country: both hover around the 5%. And yet, in most countries most of the improvement talk, projects, and funding are directed at the courts. This probably has to do with the fact that doing improvement projects in the other 95% are much more challenging. There is no central organisation to talk to and deal with. Uganda has an interesting and innovative institution in the 95% space: the Local Council Courts (LCC’s) – locally constituted dispute resolution councils, whose members don’t have to be lawyers. A 2014 judgement has declared them unconstitutional, but the survey shows that citizens are quite happy with them. The 95% space is also where a lot can be improved by focussing on legal information and smart referral systems. In that respect, Ukraine and Uganda show entirely different pictures. In Ukraine, more than half of the respondents (59%) did not seek legal information, and if they did, they mostly turned to public authorities. By contrast, in Uganda, 65% of the respondents did seek legal advice, and mostly used their social network.
This is just a selection of some of the general conclusions. The data gets even more interesting when a deep dive is taken into particular problem areas, like family-, employment- or land problems, or comparisons are made according to gender, region, or education level. Diversity is so important; the studies show that a one-size-fits-all does not correspond to what the justice needs and satisfaction data is telling us. Yet isn’t that what we all learn at law school?
We need much more of this data. And we all need to learn to work with it and to turn it into action: more justice value for more citizens.
C|M|LAW Library Blog | Wayback Machine Builds Reputation with Judiciary http://cmlawlibraryblog.classcaster.net/2016/05/12/wayback-machine-builds-reputation-with-judiciary/
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.
Shauna Hall-Coates completed a combined JD/MLIS from Dalhousie University in 2015, and will be called to the Nova Scotia Bar in June 2016.
Excerpt: Abstract, Introduction, and Sections III-IV
[Footnotes omitted. They can be found in the original via the link above]
Despite the pervasive integration of technology into various social institutions, one public body—the courtroom—has largely resisted such efforts. This separation is collapsing, however, as trial spectators increasingly arrive at court expecting to use their handheld digital devices inside to publish information about trials in real-time on live-blogging platforms. Consequently, Canadian courts have been forced to grapple with what role, if any, digital media is to play within their walls as this new information age puts pressure on a centuries old legal tradition.
This article examines the debate on the use of digital devices in the courtroom from the perspective of the “open court principle,” as articulated in both law and general jurisprudential theory. It argues that using digital media as a platform to disseminate courtroom narratives has the potential to strengthen many of the open court principle’s foundational values, including accessibility, judicial accountability, and freedom of speech. These benefits may nonetheless come at a cost to the open court’s normative functions, since multiple, non-linear courtroom narratives created by digital media can undermine the publication of clear, determinate norms around which people can structure their lives. Accordingly, this article suggests that in deciding whether to permit digital media use in the courtroom, the justice system must determine which of the democratic values that underpin the open court principle ought to be given decisive weight in modern society.INTRODUCTION
An incontrovertible truth of the modern age is that technology has been, and will undoubtedly continue to be, one of the defining characteristics of 21st century life. In Canada, individuals increasingly live their lives with the Internet literally at their fingertips, as the proliferation of digital technologies in increasingly diminutive forms has made it possible to stay connected at any time and from any location. Yet despite the pervasive integration of technology into various social institutions, one dimension of civil society—the courtroom—has remained relatively immune from technology’s noisy demands for recognition. Walk into any courtroom today, critics venture, and it will look stunningly similar to those of the past; the judge will be sitting behind the bench, the jury in its box, and the witness on the stand. As everyone settles into his or her place selected by centuries of ritual and status quo, the courtroom may even appear as a sanctuary from the trappings of digital technology, so doggedly pursued outside its walls.
This segregation between the courtroom and digital technology is nonetheless collapsing, as trial spectators increasingly arrive to court expecting that they will be able to use their digital devices inside to publish information about the trial in real-time through social media such as Twitter and other live-blogging platforms. Moreover, despite the judicial system’s wariness of digital media technologies, their integration into the courtroom is strongly supported on the basis of the “open court” principle—that venerated ideal within the English justice system that holds court proceedings must be open to the public and that publicity as to those proceedings must be unconstrained. As a result, courts across Canada have been forced to grapple with what role, if any, digital media technology is to play within the modern casting of the open court principle, and who, if anyone, is given recourse to its use in the courtroom.
Entering this critical fray, this article examines the debate on both sides of the coin for the inclusion and exclusion of digital devices and the attendant use of social media within the courtroom, based primarily on its accordance with the theoretical and legal underpinnings of the open court principle as they exist at the level of both Canadian law and general jurisprudential theory. At its root, this article rejects critics’ suggestion that social media use within the courtroom merely acts as the 21st century equivalent of the reporter’s pen and paper, and thus does not represent a radical break from past journalistic practices. On the contrary, this article argues that these platforms create wholly new and challenging courtroom narratives, characterized by the immediacy, interactivity, abundance, and permanence of the information disseminated through them. Likewise, since the Internet has democratized information dissemination, these courtroom narratives may be increasingly relayed in jurisdictions where it is permitted, such as Nova Scotia, by anonymous civilians who remain deeply unaccountable to a professional or organizational body in a manner commensurate with the accredited media.
Accordingly, the revolutionary nature of this information dissemination platform exposes both digital media’s promises and problems in relation to the normative values that support the open court principle. The normative values underpinning the open court principle are complex, and deliberation on them is found in canonical Supreme Court of Canada case law, as well as in the writings of legal philosophers and critics such as Jeremy Bentham, Lon L. Fuller, and Jeremy Waldron. Distilled to their bare essence, the values of the open court principle centre on the self-legitimization of the judicial system in a democratic system of governance and the self-determination of individuals in a functioning democracy. This latter value involves the dual-pronged ability of citizens to self-govern according to a clear understanding of their legal entitlements and obligations within a democratic order, while simultaneously being free to publicly question the efficacy and legitimacy of these same laws to which they know that they are coercively beholden.
Using digital media as a platform to disseminate courtroom narratives has the potential to strengthen many of the open court principle’s foundational values, including accessibility, accountability of the judiciary, and freedom of speech. However, even as digital publicity in all its multiple, non-linear narratives has the profound ability to increase discursive debate, it undermines the publication of clear, determinate norms around which people can structure their lives. This argument is heavily steeped in humans’ troublesome online truth-seeking practices and in critics’ suggestions that digital media is a constant, and perhaps unavoidable, purveyor of misinformation in society. Accordingly, this article suggests that in deciding whether to integrate digital media use within the courtroom, the justice system must determine which of the democratic values that underpin the open court principle ought to be given decisive weight in modern society. Once the judicial door has been opened to use of digital media, it is legally and practically difficult to close the door, given that the test to obtain a common law publication ban is onerous, and cries of censorship target judges who refuse to accommodate the multiplicity of perspectives that social media’s proponents celebrate. Consequently, the wariness of some Canadian courts to welcome digital media technology into their fold may be prudent in light of this technology’s capacity to problematize fulfillment of the very core values they hold as sacrosanct.
…III. THE GOOD NEWS: JUSTIFYING DIGITAL MEDIA USE ON THE BASIS OF THE OPEN COURT PRINCIPLE A. Accountability and Freedom of Information
Live-blogging in the courtroom by journalists and the public is supported on the basis that it further demystifies the judicial process, which, despite the open court principle, “remains shrouded in mysterious ritual” to the eyes of many. As noted in Part I, the notion of transparency has long been entangled with the integrity of the justice system, as the democratic legitimization of judicial power flows from the public’s collective confidence in the legal system as an impartial and independent arbiter of rights. For critics, exposing the courtroom to a virtual audience would have the effect of promoting its accountability to both the general public and to those associated with the case who were unable to attend in person, including family and friends of the parties. The logic here is simple: the more open that the process is in terms of witnesses and the more extensive its public record, the less likely it is that judges and members of the court will stray from the proper administration of justice. Support for live-blogging on the basis of increased public oversight is evident in the words of Chief Justice Kennedy, who welcomed digital media into Nova Scotia courtrooms by acknowledging that the “whole premise [of the courts] is based on the fact that we think an informed public will have confidence in [them]. We think that the more they know, the better off we’re going to be. Twitter is the latest technology that allows it.”
The right to live-blog courtroom proceedings has also been cast as a fundamental issue of access for those positioned outside the courtroom. As digital media can provide information to citizens “with an immediacy and thoroughness never before available,” anyone with Internet access can monitor a trial as it unfolds without having to traverse the physical barriers that have long kept courtrooms both paradoxically open and closed. Moreover, given that the information transmitted about the parties, witnesses, and action can far surpass that of a traditional newspaper article or even a written judgment, the public may be better equipped to make an informed and empathetic analysis of the case. Sujoy Chatterjee explains: “An informed public that knows the names, backgrounds, and socio-economic conditions of the people involved in…court cases will be better equipped to critique a particular court decision in the hope of creating real social change.” In this sense, social media’s ability to transmit vast quantities of information, which can be augmented by links and images as discussed in Part II, directly aligns with the democratic ideal of opening up the courtroom for the world to see its contents and to judge its outcome. As Charles Nesson eloquently puts it, tweeting and live-blogging can “facilitate [the] coveted ideal [of the open court principle] and allow the whispers, now made in the inner rooms of our public courthouses, to be proclaimed from the digital roof tops for all to hear.”B. Freedom of Expression: Open Court Meets Court of Public Opinion
Conversely, live-blogging during a court proceeding has also been championed as a right of access for those positioned inside the courtroom on the basis of the freedom of expression guarantee under section 2(b) of the Charter. Specifically, section 2(b) has been used to challenge any distinction between journalists and non-journalists’ permitted use of digital media in court—a division reinforced by some of the policies of different jurisdictions and at different levels of court across Canada, as discussed in Part II. Though the debate in Canada regarding discrimination of access in this regard is nascent, prominent media law scholar Michael Geist has challenged the tendency to privilege the accredited media’s right to live-blog court proceedings to the exclusion of all others on the basis that it fundamentally conflicts with section 2(b)’s inclusive guarantee.
According to Geist, the Ontario Superior Court’s ban on general public tweeting is arguably unconstitutional:
Either everyone should be free to tweet or no one should…but to limit “authorized tweeting” to a special group is “enormously problematic.” [This ban] leaves journalism students, freelancers, bloggers, and responsible citizens who wish to attend trials and communicate about them in a situation that is likely to end in a violation of their rights….Presumptively banned from using the same communications medium as reporters, they can be kicked out if they try, and charged with contempt. Under the Charter, “everyone” has the right to freedom of expression, including freedom of the press and other media of communication.”
Others have made equivalent arguments on section 2(b) grounds, noting that what previously entitled journalists to act as the exclusive purveyors of courtroom content was their hegemonic control over mass media in a print-based economy. Since this hegemony has declined in the Internet’s wake, the justice system, in upholding section 2(b), is correspondingly compelled to accommodate a world in which everyone has an equal ability to report from the courts. In this vein, critics have pointed out the capricious underpinnings of a ban on the public’s live-blogging, contending that
…the policy is simply unfair and arbitrary. […] [I]n the case of courtrooms, the access provided [to] journalists and non-journalists is basically the same. Indeed, barring exceptional circumstances, courtrooms are open to anyone who can get there. […] [I]mposing a class structure on attendees in open court is untenable.
Consequently, if information dissemination is held as a public service and not a consumer good, and the media is accepted under section 2(b) as having no freedom of expression rights in the courtroom over and above those of average citizens, distinctions drawn between the accredited media and the public may indeed prove legally flawed.
Support for live-blogging courtroom proceedings and discrediting class distinctions drawn in this regard also stems from a promotion of the model of discursive democracy outlined above in Part I. Drawing on the work of theorists including Lon Fuller, recall that the Supreme Court of Canada and legal scholars such as Jeremy Waldron held that the fair functioning of the liberal democratic order required civilian access to information and the attendant opportunity to deliberate upon that information critically. Since critics like Waldron suggest the law itself is a site of civic contestation and debate, public institutions like the courts have an obligation to provide citizens with the information they need to actively resist dominant judicial interpretations of their civic rights and obligations. Though previously undiscussed, implicit in this argument is the assumption that the public has access to communal sites of information exchange in which they are able to freely engage in political and social debate regarding the law without government interference or censorship.
The Internet, in its ability to generate infinite knowledge and function as a medium for human interaction free from temporal and spatial boundaries, has been cast as the locus for civic debate in the 21st century. Generally, the Internet is a sphere of inclusivity and unconstrained dialogue—elements critical to a democratic system of information exchange and argument. In this light, scholar Geoffrey Leane explains the Internet’s normative function as it relates to deliberative discourse:
The grea[t] ambition for the Internet as a communicative medium is that it can facilitate not only access to information and data but also the possibility of narrative exchange and collective will formation—the opportunity to become informed, to argue and to reach reasoned and rational positions which might become part of a public sphere consensus.
Through platforms like Twitter, which open up inclusive public space for the exchange of information and perspectives, civilians may discover increased opportunities “for political communication and engagement, for political contestation—and thus for agency.” The emancipatory power of these online communities are further evidenced by the fact that users can overcome traditional barriers to political recognition, including race or gender, in the anonymous world of online discourse.
If live accounts of trials are wellsprings for an informed citizenry, the online public debate that encircles these virtual watering holes may subsequently enrich “both the substantive positions of participants and also their political selves as citizens.” As enthusiasm for deliberative democracy in liberal societies is “driven by a perceived distance between the drives and motivations of citizens and the political decisions made in their name,” live-blogging in all its informational immediacy may be able to narrow the temporal distance between lawmaker and subject, as the latter is able to instantly respond to the actions of the former. Emphasizing the narrowing distance between the judge and the public, Charles Nesson suggests:
[The] Internet can provide a vision of the future in which the court is truly recognized as a public place. This is a concept that harkens back to the original idea of trials from a foundational time of our nation, when trials were the cent[re] of community activity….
Thus, live-blogging may offer a nexus between conversations about the law both inside and outside the walls of the courtroom, functioning as an inclusive and interactive site for public debate not yet experienced in the often staid world of discourse about the courts.IV. THE BAD NEWS: THE RISKS OF DIGITAL MEDIA USE IN THE COURTROOM
“When you’re trying to correct things through Twitter alone, it’s a losing battle from the beginning. […] You end up chasing Tweets that spread faster than you can keep up; it’s like putting toothpaste back in the tube, except the toothpaste is alive and didn’t like it in the tube and is dreaming of Broadway.”
Despite these strong arguments in favour of live-blogging, problems inherent in its use persist. First and foremost, the Supreme Court has held that the open court principle fundamentally operates on the assumption that the reporting of legal information will be done in an accurate and fair manner. Critics, in turn, have argued that this presumption is an indispensable element to the practical operation of the open court principle, insofar as it relieves judges, in the absence of countervailing evidence, of the onerous task of having to vet or screen the integrity of the press when presiding in full view of the media. The requirement for accurate reporting is undeniably crucial, as the Supreme Court in Edmonton Journal recognized that truthful and clear reporting of the law’s content is necessary for individuals to understand their legal obligations and entitlements. Likewise, returning to the analysis of the law through theorists such as Fuller and Waldron, the clear manifestation of its content affords individuals the critical capacity to apply the law to their own behaviour through self-governance, and lends stability and predictability to the lives of citizens in a manner that underscores their dignity as legal subjects capable of self-determination.
Nonetheless, in a media landscape where Twitter and other live-blogging platforms act as frenetic sources of information, it is apparent that falsehoods will be made in quantities and qualities never before seen, threatening public perception of the clarity and determinate nature of the law’s content. On a basic level, misrepresentations may be made by accident and by anyone: a misquotation, an incorrect name, or a detail that was to remain off the record. However, in the great echo chamber of the Internet, these slips will nevertheless travel in large circles, and critics warn that corrections—if they come—may not come in time to prevent people from walking away with mistaken impressions of reality. On a more malevolent level, those outside the accredited media may intentionally circulate misinformation, as occurred recently when Oscar Pistorius’ supporters took to social media to deliberately recast key facts during his trial for murder.
Similarly, anonymous sources of information may take advantage of the lack of oversight and accountability to skew facts in a manner beneficial to their point of view, either by decontextualizing information to present it in a different light or by emphasizing choice bits of information that are inflammatory outside of the complete narrative. As these retweeted reframings could still be linked to an established media source, a veneer of credibility may problematically gloss over otherwise unreliable information. Lastly, between accident and intent lies a host of other troubling states, including insufficient objectivity, voyeurism, gossip, speculation, half-truths, and bare sensationalism. Whatever the method and motive, the risk of distortion is real and the challenges of effectively containing the viral spread of misinformation in large-scale social networks are substantial.
This problem raises a secondary concern involving individuals’ online truth-seeking behaviour, or lack thereof. Simply put, as the Internet presents individuals with massive quantities of information, their filtering mechanisms—which are premised on their preconceptions, biases, and prejudices—can often become survivalist techniques. Geoffrey Leane explains:
Given the sheer quantity of information available in complex modern societies and now relatively accessible in unprecedented quantities on the Internet, information seekers typically need a filtering process that renders incoming information reasonably manageable, comprehensible, and amenable to analysis. One can self-select filters to suit one’s own needs, interests and preferences. But therein lies the corollary problem of too much filtering.
On the topic of “too much filtering,” technology critics have warned users about the tunnel vision effect that the Internet has on individuals’ search for truth, noting that while the
…advantage of technology is that it allows people to filter information and customize their selection, this advantage at the same time limits people’s exposure. Because the Internet allows users to visit websites that are very specialized and often geared towards specific audiences, the Internet eliminates an element of randomness, reduces exposure to a variety of views and perspectives, and potentially creates a biased worldview.
As individuals’ egocentrism may dominate their online information-seeking behaviours, their freedom to “self-select…information sites, news and opinions [may] simply confirm [their] prejudices and [cause them to] become more politically segregated and intolerant.”
On this point it is important to emphasize that critics see the self-filtering nature of online information as a break from traditional news media of the past. For instance, Leane writes:
Modern mass media have traditionally served as filtering devices and, whilst self-selecting themselves, at least exposed readers and viewers to some variety of perspectives in, for example, editorial pages of print media. We may choose our newspaper and preferred editorial writers on the basis of our personal predilections but our attention might still be caught by others. […] There is at least the possibility of inadvertent exposure to contrary arguments and opinions. Not so with pre-chosen Internet sites if one so wishes.
Returning to the context of truth-seeking in the midst of misinformation, individuals are unlikely to recognize a falsehood if they do not seek or gain exposure to alternative perspectives and narratives. Therefore, misinformation about the law will be increasingly rooted in the social discourse of live-blogging, as it meets the radical grounds for confirmation bias laid by the Internet.
When competing narratives emerge for a single court proceeding, it may be difficult to discern fiction from fact, particularly as the information travels further away from its original source. In the context of the open court principle, reliance on live-blogging and Twitter as mechanisms for dissemination thus troublingly places the truth-seeking function of the open court principle in direct tension with its deliberative function. The problem is deceptively simple: the more opportunity there is to create multiple narratives regarding judicial proceedings, the more likely it is that misinformation will be produced and that mistakes will be made. As a result, the ability for individuals to self-govern on the basis of legal determinacy, which the publicity principle is supposed to ensure, is fundamentally weakened, as the deliberative conversation surrounding the law amplifies. Furthermore, the problem begs a choice as to which critical facet of the open court principle deserves to be privileged: is it the self-determinative function, which underscores individuals’ human dignity in their self-governance, or is it the self-deliberative function, which underscores individuals’ human dignity in their engagement in public debate and action?
For theorists like Waldron, the conflict between legal clarity and public conversation arising from the publicity principle comes as little surprise and offers little resolution. Waldron explicitly highlights how these dual values of democratic order can come into tension with one another, writing that the argumentative nature of deliberative democracy “has a price: it probably brings with it a diminution in law’s certainty.” Elsewhere, Waldron explicitly brings Fuller into the fold, asserting:
The tension may be also represented as a tension between various strands of dignity associated with the Rule of Law. Fuller, we saw, associated his formal criteria with a dignitarian conception of the legal subject as an agent capable of monitoring and freely governing his own conduct. […] But how, it may be asked, can we maintain this mode of respect if law becomes contestable and uncertain as the result of argumentation? Insisting on an opportunity for argumentation respects dignity too but at the cost of diminishing the confidence that we can have in the dignity of law’s self-application at the hands of ordinary individuals.
Importantly, in Waldron’s account there does not appear to be any way in which the deliberative and determinative dimensions of informational freedom can be reconciled. By way of conclusion, he notes:
To say that we should value aspects of governance that promote the clarity and determinacy of rules for the sake of individual freedom, but not the opportunities for argumentation that a free and self-possessed individual is likely to demand, is to slice in half, to truncate, what the Rule of Law rests upon: respect for the freedom and dignity of each person as an active intelligence.
Consequently, the formal qualities of clarity, predictability, and determinacy simply bend with the “positive freedom” of individuals to actively engage in the administration of public affairs. It is this bending of the truth to accommodate deliberate discourse that appears particularly acute in the context of digital media in the courtroom, as the free flow of information presents itself in all its possibility and forbiddance in this novel form of publicity.B. Publication Bans and Lingering Challenges of Free Expression
Barring digital media use from the courtrooms on the basis that it obscures the truth by creating multiple and potentially divergent narratives is deeply problematic for two reasons. Firstly, the Supreme Court in Mentuck held that once information has entered the public domain of the courtroom, access to disseminate this information should be denied only where its publication would present a real and substantial risk to the proper administration of justice (e.g. a risk to the accused’s section 11(d) Charter right to a fair trial), and where the salutary effects of denying access outweigh the deleterious effects. In framing this common law test for imposing a publication ban, the Supreme Court held that the risk to the administration of justice must be grave and non-speculative; a generalized assertion of a risk, or a fear based on “common sense and logic alone, without the benefit of real and substantial evidence,” is not sufficient. Finally, under this test, the Supreme Court concluded that publication bans should be ordered only in exceptional cases.
This threshold for publication bans—meant to uphold freedom of speech in relation to the open court principle—is thus unquestionably high. To this end, the test may pose issues in jurisdictions like Nova Scotia where live-tweeting is presumptively allowed, but where the judge has concerns that a truthful account of its proceedings may be obscured, distorted, or lost in the volley of tweeting. Such circumstances may arise during highly controversial or sensational cases, where media scrutiny and public attendance are atypically intense. In these circumstances, implementing a ban on publication via digital media based on a
desire to preserve a ‘correct’ or uncontested narrative might not rise beyond the level of speculative evidence of harm to the administration of justice. This would be an untenable ground on which to exercise judicial discretion under the Dagenais/Mentuck test. Moreover, given the fact that sensational, high-stakes criminal cases attract most publicity, the judge may be simultaneously under pressure to allow extensive trial coverage to ensure the accused’s right to a fair trial under section 11(d) of the Charter.
Secondly, judicial attempts to ban social media use on the basis that it leads to multiple, contestable narratives may attract suspicion of censoring the public’s freedom of speech. Such bans have been strongly criticized by scholars as obstructionist and self-interested. It is important to see that judicial decisions are, in the words of Elaine Craig, “normative—they make a claim to truth. ‘Every judicial narrative is a claim of knowledge. […] When judges narrate, our initial reaction is to treat their narration as an accurate reflection of reality.’” As a result, in a scathing critique of the justice system’s attempt to limit trial information to the ultimate judgment at the expense of alternative media’s involvement, Charles Nesson wrote:
The courts are trying to contain the news. The courts are trying to manage the content released to the world. The courts are trying to create their vision of trial—a vision of an isolated proceeding in which a record is carefully crafted and submitted as truth. This record provides justification for the judicial result and is ideally not vulnerable to media assaults along the way. The courts are trying to avoid the commenting and critiquing that comes with sensational trial[s]; they are trying to avoid the talking heads.
Based on these concerns, judges may find themselves in uncomfortable positions as they attempt to harness digital media’s potential, while avoiding unjust infringements on free speech. Thus, out of concern for similar cries of obfuscation or censorship of section 2(b)’s freedom of expression, judges may be forced to cede control over the flow of information in a manner that makes them “just a participant in a connective community, rather than the person in control of a legal process.” Consequently, while the fight may be waged between the normative value of the law’s content and the discursive nature of its debate in the context of the open court principle, freedom of speech under section 2(b) may be the ultimate trump card, particularly in circumstances where the courts have already brought digital media technologies into the fold.
Lawyers are known for overwriting. Perhaps it is all those cases from the 1800s we had to read in contracts class that lead us to write in needlessly ornate sentences. Perhaps too many of us remain convinced that piling on words makes us sound smarter (even though people who sprinkle long and complicated words into their sentences are actually perceived as less intelligent).
Whatever the cause, we often need help to make our writing leaner and cleaner.
Enter WordRake, which hopes to do exactly that. WordRake is a Microsoft Word and Microsoft Outlook add-on that proofs your writing and makes suggested changes. One key caveat: although you can’t really tell from the website, it is only for the Windows version of Word, and it won’t run on Office 365 if you only use 365 via your browser. The website makes no real mention of these limitations. In my case, I didn’t realize it until I downloaded the software. While Windows devotees may shrug off the lack of a Mac version, Wordrake’s lack of browser support is a significant limitation since Microsoft is pushing its users to the cloud.
WordRake works by going through and redlining your document, making semi-substantive editing suggestions, and correcting your typos.
After it “rakes” the document, you can decide which changes you want to keep and which to reject. Since the add-on works just like Word’s track-changes function, any lawyer who has ever received a marked-up document will intuitively know how to use it.
So how does WordRake perform in the real world? I fed it three different types of documents:
In my layperson Scalia post, WordRake did a good job getting rid of some of my congenital writing tics, such as using “that” when I don’t need to and overusing “essentially” and “basically.” I’d like to think I’d catch all those while proofreading, but I probably wouldn’t. On the downside, it really seemed to hate certain rhetorical flourishes. For example, it tried to change “Scalia’s statement pretends to be reasonable” to “Scalia’s statement is reasonable.” Those two things are not remotely the same.
When WordRake chewed through Scalia’s Romer dissent, it desperately wanted Scalia to stop saying “sort of.”
Finally, on my almost-finished brief, WordRake did a solid job of catching passive phrasing (“by the issuance of” was changed to the much better “issuing,” for example). It also spotted typos and removed intra-sentence redundancies. However, it still made some grammatical suggestions that utterly changed the meaning of the sentence. That is not a reason not to use the software. Given that you can accept or reject each change, you are free to ignore the suggestions that mangle your meaning.
WordRake is not cheap, coming in at $129 a year each for Word and Outlook, or $199 for both. There doesn’t seem to be a way to subscribe month-to-month, but there is a free 7-day trial. If you decide to go all out, volume discounts and enterprise licensing are available. If you usually work alone and feel like you need a second set of eyes, the $129 or $199 might be well worth it. If you routinely have a trusted colleague edit your writing, it may not be. Given that there is a free trial, it is certainly worth giving WordRake a whirl.
No, I am not going to comment on the amazing circus our U.S. presidential election has become. I want to bring you up to date on the Law Library of Congress’s latest news and their continuing progress in providing free U.S. government information to the world.
David Mao, former Law Librarian of Congress, is still the Acting Librarian of Congress. But Carla Hayden, CEO of the Enoch Pratt Free Library in Baltimore Maryland, has been nominated by President Barack Obama to become the first African American and first woman to hold this position. I hope that the U.S. Senate will act promptly on this nomination, unlike their obstruction of Obama’s nomination of Merrick Garland for the Supreme Court of the United States.
But despite all this election year drama, the staff members at the Law Library of Congress continue to add to and improve the resources available in congress.gov. In this April 4th blogpost Andrew Weber summarizes the latest improvements. These include bill status data available from GPO’s FDsys bulk data repository and expanded Quick Search. Quick Search is now available for:
I will continue to keep you up to date on the latest developments at the Library of Congress and beyond.
How to connect apps to Slack for use in the classroom – TechRepublic http://www.techrepublic.com/article/how-to-connect-apps-to-slack-for-use-in-the-classroom/#ftag=RSS56d97e7
Experiential Learning Partners | Best Practices for Legal Education https://bestpracticeslegaled.albanylawblogs.org/2016/05/11/experiential-learning-partners/