It’s time for a frank conversation about how implicit bias, overt racism, and white privilege impact the criminal justice system. It’s time to take a hard look at what’s happening in our country, on our streets, and in our courts. It’s time to use our role in the justice system to make a difference.
Long past time. The webinar is at 1pm Eastern on December 19th, 2014. To sign up, go here.
(h/t Dick Barbuto)
Let’s start with one immutable truth: it is always better to work out outside or in a gym rather than in an office. Always. But there are times when a gym isn’t an option: you might not have time today before or after work; you might only have forty minutes between meetings; you might not be close to a gym; it might be freezing cold outside; you might be Robert de Niro in Cape Fear. Excuses abound.
So let’s say it is essentially impossible for you to get today’s workout in unless you start one up in your workspace right now. In that case, here are some exercises that you can do with or without equipment that will help tide you over.
In a recent survey of 1,700 knowledge workers, 79% of respondents indicated that they always or frequently work in dispersed virtual teams. The trend is echoed in law firms of all sizes, as business operations are reconfigured for greater efficiency and individuals seek increased flexibility in work arrangements.
Author and speaker Keith Ferrazzi published practical tips to set virtual teams up for success in the December 2014 issue of Harvard Business Review. Based on my experience working with groups in multiple law offices and time zones, his advice rings true.
Ferrazzi says that virtual teams should focus on getting four elements right: the right team, the right leadership (the action, not the title), the right communication touchpoints and the right technology. Three of his suggestions seemed especially relevant to me in my work with lawyers.
Teams working on legal projects often include firm members in multiple offices, with multiple schedules. They include:
Ferrazzi refers to these as “core, operational and outer” roles.
I am often surprised at the number of team leaders who forget this step. Identifying who belongs in which role and defining expectations at the outset is crucial if you want to avoid confusion later on in the project. If you’ve ever wondered why one member of your team assumed that another was responsible for completing a missed task, you’ll know what I mean.
Use technology well
Many of us get stuck on the idea that project technology has to be right and that it has to be robust before any virtual teamwork can start. Poor technology does cause frustration, delays and miscommunication. But it’s no excuse not to find creative solutions or train people to learn new skills.
One of the good suggestions in the article – and one that could easily work for a legal team – is to set up a secure online chat room for members to log questions, answers and decisions. This wrangles group discussions and quick answers in one place. Even better if it’s searchable.
“Agree on how quickly team members should respond to queries and requests from one another, and outline follow-up steps if someone is slow to act”
This guideline could be determined according to roles, but it would increase trust in any team, virtual or not.
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. Bank of Nova Scotia v. Diemer, 2014 ONCA 851
 The public nature of an insolvency which juxtaposes a debtor’s financial hardship with a claim for significant legal compensation focuses attention on the cost of legal services.
 This appeal involves a motion judge’s refusal to approve legal fees of $255,955 that were requested by a court appointed receiver on behalf of its counsel in a cattle farm receivership that spanned approximately two months.
2. Steele v. Intact Insurance Company, 2014 ONSC 6999
 It did not hear from the plaintiff again until October 19, 2011 when her lawyer wrote to them to claim that it should have advised her to consider electing non-earner benefits, since the income replacement benefit was of no use to her. Mediation and litigation proceeded thereafter. The statement of claim was filed on January 29, 2013. The plaintiff has never filed a disability certificate that indicated that she was suffering a complete inability to carry on a normal life.
 The limitation period in s.281.1 of the Insurance Act runs from the date of the refusal. A clear an unequivocal refusal was made on April 3, 2007. No mediation or neutral evaluation took place to extend the limitation period. The period therefore expired on April 3, 2009. Any error in the reasons for refusal does not invalidate the refusal for our purposes: Sietzema, supra. The defendant is entitled to summary judgment for this reason alone.
3. Sargant v. Lobsinger v. Molson Coors Canada Inc., 2014 ONSC 6936
 In a laser question at the conclusion of Mr. Treslan’s able cross-examination of Sargant, the Plaintiff answered “I wouldn’t know” as to whether he lost a cent as a result of what Lobsinger said at the AGM.
 Consequently, no pecuniary or special damages can be awarded. There was no economic loss suffered by Sargant.
 But some award of general damages is required in these circumstances.
 It must not be a king’s ransom, however.
The most-consulted French-language decision was Multani c. Commission scolaire Marguerite-Bourgeoys,  1 RCS 256, 2006 CSC 6
1 Il s’agit, dans le présent pourvoi, de déterminer si la décision d’un conseil des commissaires interdisant à un des élèves relevant de ce conseil de porter un kirpan à l’école, tel que le requiert sa religion, porte atteinte à la liberté de religion de cet élève. Dans l’affirmative, il faut se demander si cette atteinte constitue une limite raisonnable pouvant être justifiée par le besoin de maintenir un environnement sécuritaire à cette école.
2 Comme je l’expliquerai plus loin, je suis d’avis que la prohibition absolue de porter le kirpan porte atteinte à la liberté de religion garantie à l’élève concerné par l’al. 2a) de la Charte canadienne des droits et libertés (« Charte canadienne »). Cette atteinte ne peut être justifiée en vertu de l’article premier de la Charte canadienne, car il n’a pas été démontré qu’une telle prohibition constitue une atteinte minimale aux droits de cet élève. La décision du conseil des commissaires doit donc être déclarée nulle.
* 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.
Enthusiastic entrepreneurs consult with patent agents about the protection of their new product. Often a successful team for an entrepreneurial business includes someone with technical skills, someone with marketing skills, someone providing business direction as well, of course, with one of more persons providing financial backing. Often all want to be named as inventors on a patent application. A key question which comes up is to identify who are the inventors.
That question was answered by the Federal Court in Drexan Energy Systems Inc. v. Canada (Commissioner of Patents) 2014 FC 887, a case where four people worked together on the problem of pipes freezing without heat tracing products and produced a new type of heating cable they believed improved over existing products.
As is not uncommon with many early stage ventures, the relationship among the initial group did not last. Only two of the four were listed as inventors on the patent application. The other two petitioned the Commissioner of Patents to be added as co-inventors. While the Commissioner first agreed and then reversed that decision the patent was issued with only the first two listed as inventors. Those two assigned their rights ultimately to Thermon Manufacturing Co. The other two persons assigned their rights to Drexan Energy Systems, a competitor of Thermon.
Drexan applied to the Federal Court for a declaration that the latter two persons were co-inventors of the heating cable described in CA 2,734,561 and to vary the records of the Patent Office to show that result. Thermon opposed the application.
The Court began by recognizing that under Section 52 of the Patent Act it has the power to order inventors added or removed from a patent. The Court noted that an agreement between the parties does not resolve the issue of inventorship. The issue was for the applicant to prove that the two individuals were probably co-inventors. The Court said to do so the applicant needed to show those individuals were in some way responsible for the inventive concept, but they need not be wholly responsible for it.
The test applied by the Court was to assess if the individuals “discussed concepts that became incorporated into embodiments disclosed.” The Court noted that “even minor contributions to the inventive concept can be sufficient to make someone a co-inventor, so long as his or her ingenuity is applied to the original inventive concept and not just verification”.
In looking at the inventive concept in the present case the Court noted that what was inventive were not the individual elements of the invention but the combination of those elements. As a result, the Court looked to see if the individuals in question had not only suggested features but how those features may be combined.
It was clear that there was widespread brainstorming that all parties engaged in. Ultimately the Court sought to identify if there had been an inventive contribution by the applicants. As with so much litigation, this case involved conflicting testimony and therefore was decided based on an assessment of the relative credibility of the witnesses.
The court considered that the two named inventors both had decades of experience in the design and manufacture of heat tracing cables, while one of the applicants was a career salesman and the other was a mechanical engineer who had never designed a heat tracing cable.
The court noted that a separate patent application, for a variant, was made in the name of one of the individuals (who was not named on the patent in question) and so the court expected that he must have noticed the process was different that when, earlier, a draft of the subject application was circulated among the 4 individuals naming only the two respondents as inventors.
Ultimately, weighting the conflicting evidence, the Court noted that the two individuals (not named as inventors) expertise was mostly in sales while the two named inventors had experience mostly in research, development and manufacturing. Unfortunately there was no written evidence of the unnamed individual’s contributions to the design memoranda.
The Court found that, on the evidence, the contribution of two individuals (not named as inventors) was useful input into the design but it was not proven that the had done “anything more than suggesting desired features and communicating feedback from potential customers”. Merely being helpful does not make for an inventive contribution.
There are a number of lessons from this case. Firstly, the importance of keeping good written records of the design and development process is of vital importance. Secondly, for a non-technical contributor of an inventive concept it is noteworthy that the court declined to find inventorship – so such individuals should make special efforts to record their inventive contributions in writing. Thirdly, if a party has a disagreement about what is going on with a patent application process then it is important to raise it early on in the process and seek resolution. Fourthly, had the 4 individuals address ownership of their joint development work early on and recorded their agreement then the case may never have arisen. Finally, it is important to note that while financial backing or marketing insights may be essential for the success of a business venture those do not, by themselves, lead one to be an inventor.
 RSC 1985, c P-4.
 Weatherford Canada Ltd v Corlac Inc, 2010 FC 602, aff’d 2011 FCA 228 at para 104.
 Weatherford Canada Ltd v Corlac Inc, 2010 FC 602 at para 238, aff’d 2011 FCA 228 at para 99, 95 CPR (4th) 101 (var’d on other grounds)
 Per Apotex Inc v Wellcome Foundation Ltd, 2002 SCC 77 at para 96, “an individual who contributes to the inventive concept may be a co-inventor without being the prime originator”.
 Plasti-Fab Ltd v Canada (Attorney General), 2010 FC 172 at para 15.
 Gerrard Wire Tying Machines Co v Cary Manufacturing Co, 1926 CarswellNat 22 at paragraph 32.
 Para 56.
Following an internal investigation into allegations of sexual harassment, the Massachusetts Institute of Technology on Tuesday severed ties with Walter Lewin, a retired physics professor known for his lively lectures and live demonstrations.
The story of the professor who makes sexual advances on his students is as old as academe itself, but this one was unusual because of its ultramodern setting: the free online courses known as MOOCs.
But even old problems are made new by the dynamics of MOOCs, where professors often preside over thousands of far-flung learners whom they will never meet in person.
Here is what is happening at MIT, and what it means:
What exactly did Mr. Lewin do?
We’re not sure, and MIT is not getting specific. In a news release, the university refers to a complaint it received from a female online learner, who claimed he had sexually harassed her online and who also provided information about “interactions between Lewin and other women online learners” that MIT deems to have violated its sexual-harassment policy.
According to the MIT policy, sexual harassment can mean “unwanted physical contact, requests for sexual favors, visual displays of degrading sexual images, sexually suggestive conduct, or offensive remarks of a sexual nature.”
Mr. Lewin did not return a phone message. An email sent to his university account was returned with a note saying that the account is “undergoing maintenance and can’t accept messages now.”
So, these women aren’t MIT students?
No. Mr. Lewin has been retired from MIT since 2009. He returned to help the university develop MOOCs, which take online lecture videos—the medium that catapulted Mr. Lewin to renown in the 2000s—and add interactive elements such as quizzes and message boards. The women he allegedly harassed were learners in those online courses, which are open to anyone.
Participants in MOOCs probably do not enjoy the same federal protections as do students enrolled in tuition-based programs, but some colleges have decided to treat them as if they do. For example, some colleges offering free online courses say they handle student data according to federal student-privacy standards, even though they may not be legally obligated to do so.
An MIT spokesman could not immediately confirm on Tuesday whether the university was legally obligated to respond to claims of sexual harassment from online learners who are not enrolled as students at MIT but who take classes through its edX platform.
L. Rafael Reif, MIT’s president, indicated in a statement that the university was nevertheless interested in creating a safe learning environment in its MOOCs. “We must take the greatest care that everyone who comes to us for knowledge and instruction, whether in classrooms or online, can count on MIT as a safe and respectful place to learn,” said Mr. Reif.
Does edX have its own standards for how MOOC instructors should behave?
In this case, however, the decision came from the university. “MIT received the complaint, conducted the investigation, and managed all of the follow-up, including asking edX to take down the courses,” wrote Ms. Herlihy.
So, Mr. Lewin’s online lecture videos are gone?
Some are still available on MIT Open Courseware’s YouTube channel, although those might soon be removed. People are legally allowed to copy, share, and “remix” the videos according to their Creative Commons license, and many probably have already, so it is unlikely the videos will disappear from the web entirely.
But the university seems determined to remove as much of the professor’s online course content as possible. David Pritchard, a professor of physics at MIT who has also been involved with MOOCs, said he had been urged to remove lecture videos featuring Mr. Lewin that Mr. Pritchard has been using to teach certain concepts in his own online course.
Mr. Pritchard, who does not have direct knowledge of the investigation into Mr. Lewin’s conduct, said MIT’s response was “conservative and appropriate.” But the physics professor added that he hoped the university would make Mr. Lewin’s lectures available in the future. “These things are really valuable,” he said.
Nathaniel Nickerson, MIT’s associate vice president for communications, told The Chronicle that he was not worried that the videos would be lost to the world. Two websites, Academic Earth and VideoLectures.net, have Mr. Lewin’s entire catalog, said Mr. Nickerson. “We have no intention of asking them to take the lectures down,” he said.
What is the difference between online sexual harassment and in-person sexual harassment?
If any college has separate policies for online and in-person harassment, I couldn’t find it. But research suggests that people might perceive harassment differently in virtual settings.
In a 2002 study, University of Akron researchers found that undergraduates judged misogynist comments, nicknames like “sweetheart” and “honey,” and comments about dress to be more harassing online than in person. Only requests for company were taken to be less harassing online. Also, male subjects tended to rate “online pictures and jokes” as less harassing than female subjects did.
The conference Website and program are available at: http://conference.jurix.nl/2014/
The list of accepted papers is at: http://conference.jurix.nl/2014/?page_id=203
Links to workshops and tutorials are at: http://conference.jurix.nl/2014/?page_id=143
The Twitter account for the foundation that organizes the conference is: @jurixfoundation
Here is a description of the conference, from the conference Website:
For more than 25 years, the JURIX conference has provided an international forum for academics and practitioners for the advancement of cutting edge research in the interface between law and computer technology. […] We invite submission of original papers on the advanced management of legal information and knowledge, covering foundations, methods, tools, systems and applications. […]
This December, Carswell migrated their eReference Library collection to the Thomson Reuters ProView platform. I was able to see this process purely from the content user perspective as the library team did all of the preparation, communication, and implementation for our side as the client partner in the vendor client relationship. Today, I had an opportunity to use one of the texts that my firm has access to through this new interface.
I like the clean and intuitive experience of using ProView content via a browser.
There are a couple of features that are interesting:
I have only used one title from the material that is available to me, but so far, I like to new platform.
Carswell has tried hard to provide customers with adequate information throughout the migration process. They are surfacing publishers notes for each of the ProView available titles. Even those who subscribe to the print equivalent for these loose-leaf services can view the publishers notes content.
The first monthly email will be sent out the first week of December and will be distributed to all subscribers of any title(s) on the Carswell eReference Library. Publisher’s Notes will be found on the following webpage: www.carswell.com/ereference/pubnote. Publisher’s Notes will be available in PDF format and can be easily printed, filed, copied and emailed.
At first use, I like this new content wrapper. How about you?
Originally posted on Best Practices for Legal Education:
Educational videos are becoming one of the most popular online learning formats in K-12 and higher education. The semester break is a great time to start thinking about how to make educational videos for your courses.
Since last year, I have been working with law professors to begin to incorporate educational videos into legal education. Together with FWD.us, a group of law professors recently launched a series of educational videos on immigration law and additional videos are currently being produced. The videos were made by several law professors from a host of law schools, including: Lenni Benson (NYLS), Amanda Frost (AU), Lindsay Harris (Georgetown), Cesar Cuauhtemoc Garcia Hernandez (Denver), Laila Hlass (BU), Hiroshi Motomura (UCLA), Michael Olivas (U of Houston), Jayesh Rathod (AU), Philip Schrag (Georgetown), Ragini Shah (Suffolk), Juliet Stumpf (Lewis and Clark), Shoba Wadhia (Penn State), Virgil Wiebe (University of St. Thomas), and Michael Wishnie (Yale).
I learned a lot from making these and other…
View original 546 more words
The Practice: Brutal Truths About Lawyers and Lawyering is full of excellent advice from Brian Tannebaum about how be a lawyer and build a successful law practice from a lawyer who likes to play the part of a troll online.
I have been reading Brian Tannebaum’s blog for almost as long as he has been writing it, first at his own My Law License, and later at Above the Law. (The Practice is basically a tour through the archives.)
Why have I been reading so long? Because Tannebaum is a skeptic and I like that. As far as I can tell, he is immune to Shiny Shiny Syndrome. On technology, he doesn’t confuse the tools of law practice with the practice of law itself. He recognizes that most of the hype around social media for lawyers is so much bullshit.
“[Technology] may make your life easier, but it will never make you a better lawyer.” —p. 48
Tannebaum isn’t a Luddite, though. He recognizes that social media and technology and online marketing have value. But there is value and then there is Value as sold by the gurus. Unlike many lawyers, Tannebaum knows the difference.
“Lawyers are sheep … Want to make money? Convince a lawyer you can make them money. They will give you money.” —p. 141
Tannebaum’s skepticism is a valuable perspective. More lawyers — especially young lawyers — should have it. There are too many lawyers dazzled by the techo-online-so-called-future of law. And at the same time there are far too many lawyers who are completely incompetent when it comes to technology. Tannebaum is neither.
On the other hand, The Practice: Brutal Truths About Lawyers and Lawyering is also full of stuff like this:
“I hope you like the book, but in reality, I don’t care.” —p. xviii
“I’ll lay this out for you in simple, easy terms that you can understand. Maybe you can even put some of this to work in the middle of contemplating your miserable life as a lawyer.” —p. 101
Tannebaum is happy (and quick) to call himself a troll and a bully. Maybe he is. Maybe cynic is closer to the truth. In any case, I just find this sort of thing tiresome. Unlike Jordan Rushie and Lee Rosen, I couldn’t finish The Practice in one day. It took me a few weeks because I kept getting bored with his constant sniping at the particular breed of lawyer Tannebaum frequently writes to: the Generation Y, iPad-toting, social media-obsessed Starbucks lawyers.
“The Gen Y cheerleading squad of lawyers and their marketers believe there is actually a revolution in the legal profession and that if those who have come before don’t get with it and move their practices to the iPad, they (we) will go the way of the dinosaur.” —p. 18
That’s doesn’t describe me, and I haven’t met any lawyers it does describe. I have definitely seen a few of them online, but I don’t have the impression they are about to take over the legal profession. They are easy to ignore, and that is the best thing to do with them.
If that does describe you, however, you really need to sit down and read The Practice cover to cover. I’m serious. This book is written for you, and there are hard truths in it that you really need to learn, starting with Tannebaum’s code of ethics and his advice on deciding what kind of lawyer you want to be. And even if Tannebaum is not a marketing consultant, his excellent advice about networking rings true — and it isn’t what you are hearing from most marketing consultants. Buy it, and you won’t be sorry you did (although you might get your feelings hurt a bit).
Otherwise, buy The Practice if reading good advice about law practice sprinkled with cynical sniping at young lawyers sounds like your thing. It’s my thing, apparently, and I will continue to read Tannebaum’s blog if he ever starts updating it again. You probably should too.
Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on technology, research and practice.
How many of you take the time to “eject” your USB devices before you remove them? I know some of you didn’t raise your hand. Does it really matter? Yes it does. Why? Because you can end up with corrupt data if you yank a device out while data is still being written to it…
Look to the Commonwealth
Over at Slaw yesterday I posted about JADE – a web service for locating decision from Australia that is aimed at law firm users. Today’s Tip is about when you would look to foreign decisions….
Delegate, Don’t Abdicate
This week’s practice tip features a guest post from Rachel Spence, a law clerk with Wise Law Office, on the importance of delegation in our work. This article was previously featured at Wise Law Blog….
* Editor’s pick
Tenure is one of those sticky academic topics. Those on the outside of the acadame wonder why anyone would or should be granted a “job for life.” On the inside, the question was not “if” we should have tenure, but “who.” Throughout the entirety of my career as an Academic Law Librarian and Legal Research Professor, my colleagues and I debated with the question of whether or not we should be (1) tenure track and, if so, (2) considered part of the law school faculty and invited to participate in the governance of the school.
At the time, I held the opinion that “every professional person in a law school and interacts with students or contributes to the intellectual life of a law school should have tenure.” Teaching faculty, the Academic Success Program, Clinicians, LRW faculty and yes, law librarians. Even the Technical Services ones (catalogers, systems librarians, collection development librarians, etc.) – you know, the ones squirreled away in the back of the library that you never see. And if you don’t think they contribute to the intellectual life of a law school from their offices hidden in the back of the library, we’ll just organize the books by colour and let the dean decide what databases to buy and call it a day. Good luck with that!
I had several reasons for this opinion. One, the unequal distribution of tenure among people with one or more graduate degrees and who interacted with students and contributed to the intellectual life of the law school created a caste system. A caste system that hampered, I believe, the quality of education that students received, as shown by the increasingly limited time that legal research and writing is given in course schedules. It was also a caste system that the students are able to pick up on and translate to the importance of the subject taught by non-tenure track faculty. The thought process I often overheard was “if the law school doesn’t value LRW, why should I?”
The second reason for my opinion was that these positions all require the protection that the concept of “intellectual freedom” covers. These individuals may not need intellectual freedom for a journal article arguing a controversial opinion – although it definitely could take that form. (Not to mention that the expectation of scholarship and thus the acceptance of blocking out time in one’s schedule to create it is a nice bonus of tenure-track positions.) These members of the law school community need the protection to cancel subscriptions (even if the dean uses it! Especially if the dean is the only user!) or take on unpopular cases in their clinics or writing a blog post where a big player – for example, US News and World Report – is called out by a career placement officer for their ranking methodology. That staff member should be able to do it and keep that blog post up without worrying that the dean will punish them out of fear of USNWR retribution.
(Admittedly, this analogy is flawed because obviously USNWR doesn’t give a good goddamn what anyone thinks about their methodology and knows that the legal academe has Stockholm Syndrome with regards to their annual law school rankings. So let’s say LRW professor fails the child of a major law school donor. There. That’s more grounded in reality.)
Now that I’ve been away from the academe for a few years, my opinion on tenure has changed. And for the same reasons, but with different interpretation of the facts. I now think NO ONE in the legal academe should have tenure, with the possible exception of the dean who must deal with university officials and, thus, needs the protections for intellectual output and from the perception of unequal status from the other deans in the university. I mean, it’s bad enough that they all have PhD’s and our dean only has a JD…we should at least throw him or her a bone and grant tenure.
In my argument against tenure, I’m not going to rely up on the trope of “the law professor who gets tenure and then spends the rest of his or her career in their office and doesn’t contribute any intellectual object or service to the school ever again.” Although to be sure I’ve seen examples of this professor in the wild, as I’m sure anyone who’s spent time in the Ivory Tower has. But I’ve never found this argument to hold water. Most academics I know are extremely dedicated and hardworking people and a few bad apples shouldn’t spoil the whole bunch.
Much like before, I take issue with the caste system created by the tenure system. Don’t get me wrong – I think law school clinicians and even adjuncts are extremely talented and valuable members of the law school community. But I do wonder if the lack of status and lower pay (if they are paid at all!) is keeping other extremely qualified individuals from crossing the threshold of a law school. In theory, law faculty are paid the high salaries that they are in order to compete with the Big Law job market. (The fact that Big Law jobs have all but disappeared and most law faculty have never practiced is not taken into consideration.) Why shouldn’t an adjunct make the same hourly rate as they do in practice? Why does the academe expect the Practice World to essentially donate time to do law schools’ job?
I have also come to realize that while tenure protects intellectual freedom, it just as often hampers or inhibits it. In my current position, I introduce law faculty to new educational tools and teaching concepts. (e.g. Flipped Classrooms) Time and time again I’m told, “I’d love to do [X], but I have to work on an article…” I will never understand why legal scholarship, with all of its flaws, is the gold standard measure of academic output and faculty quality. The tenure process keeps faculty from concentrating their efforts on their teaching or creating useful yet not scholarly work like casebooks or even, yes, computer programs.
So what do you think? My opinion has changed so radically on this topic in 3 years that I’m very interested to read other opinions and see if it will swing back. In the meantime, I’m just going to sit here and hope I don’t get fired for this blog post…
No matter what the area of practice, the number one source of claims at LAWPRO is a breakdown in communication between the lawyer and client.
Between 2008 and 2013, nearly 4,600 communications claims – an average of 762 a year – have been reported to LAWPRO. The total cost of these claims to date is about $158 million – and likely to rise as more recent years’ claims are resolved.
In the Fall 2011 issue of LAWPRO Magazine we asked LAWPRO claims counsel with expertise in the various areas of law to provide insights into the communications mistakes they see in their daily handling of claims files. We hope this approach makes it easier for you to implement risk management steps in your own practice.
Real estate claims make up the largest share of communications claims. Busy, high-volume practices often lead to situations where the lawyer is not taking the time to communicate with the clients properly. Mitchell Goldberg, unit director and counsel and Nadia Dalimonte, claims counsel, both in our Specialty Claims Department, provide some examples of the kinds of claims they see in this area of practice.
Meet the client – yourself – and ask questions
The common thread running through the examples that follow is that many real estate lawyers say they are too busy to communicate directly with clients. They rely on clerks, so the lawyers themselves become removed from the process. “It is always preferable for the lawyer to meet with the clients and review the important documentation in the file with the clients at that time. In the event of a claim, it’s not usually a strong defence for the lawyer to say to us ‘well, the clerk met with the client,’” says Dalimonte.
Some lawyers, she adds, take the position that their job is to carry out only the title conveyancing, when what they should have done is take the time to speak to the client to ensure they’ve gathered all the relevant information.
For example, although only one person may be registered on title, there could be a spousal interest in a matrimonial home. LAWPRO has seen a number of claims where the lawyer did not get the consent of the spouse to change the ownership status or encumber the property with a mortgage. Take the time to discuss important information such as the client’s marital status to determine whether the consent of a spouse – or any other person with an unregistered interest in the property – needs to be obtained, or whether the spouse needs to be sent for independent legal advice (depending on the nature of the transaction).
Another source of claims involves situations in which parents get involved in their children’s real estate dealings – such as the transfer of a parental property to a son or daughter, or the purchase of a home by the child with the parents guaranteeing the mortgage or taking title with the child and actually becoming mortgagors. The parents often later claim the lawyer did not properly communicate the potential consequences to them (e.g. if the children did not keep up the mortgage payments, the lender could come after them) or failed to send them for ILA.
There may be issues of capacity or language barriers preventing the clients from fully understanding the proceedings. Until you sit down and talk to the clients, these kinds of complicating factors might not be apparent.
Use title insurance wisely
Lawyers using title insurance also need to take the time to communicate directly with clients. Often the lawyer fails to ask clients about possible future uses of the property that the client might have in mind, and as a result fails to get a title insurance endorsement that would protect the clients (e.g., they planned to build a pool, but later discovered a subdivision agreement prevents it). Similarly, lawyers sometimes fail to discuss whether a client wants a survey or a particular search done.
“They just assume title insurance takes care of issues that could arise, so that the lawyer has no documentation in the file to demonstrate that the lawyer discussed what the client did or didn’t want,” says Goldberg. Failure to have that conversation may constitute negligence, and also may violate the commentary to the Rules of Professional Conduct that addresses informing clients about options to assure title.
Remember the lender client
Lawyers also need to remember that lending institutions are also their clients. We’ve seen claims in which lawyers have failed to communicate material information to the lender client so the lender can make an informed decision on whether to advance mortgage funds. Such details could include the correct purchase price, current ownership, or whether the purchaser is going to reside on the property.
Jian Ghomeshi just hired a brilliant and fearless “shark” of a lawyer, Marie Henein, to defend him against criminal assault charges. There is a school of thought in legal ethics that maintains Henein is professionally obliged to play by the criminal defense playbook, right up to the point of transgression, and directly or indirectly enter the complainants’ sexual histories into evidence. If she can also get their medical records and the clinical notes of their therapists in, she must put all personal moral qualms aside and do everything within the confines of the law to get her client off. It’s called zealous advocacy.
The state is overwhelmingly better resourced in criminal cases. While it is regrettable that poor defendants in criminal cases don’t have access to such zealous advocacy against the state, that should not be held against the individual lawyers who ply their trade well. One school of legal ethicists would argue that Marie Henein’s character should not be judged for her brilliant advocacy of a man whose character is now held in low regard. Hiring a woman to embody and soften the principle of zealous advocacy was an obvious choice for Ghomeshi. And it seems hypocritical to call successful female lawyers to task on this point when male lawyers have traded up on these skills for centuries.
There is another school of legal ethics that stresses lawyers’ simultaneous duties to the public and the profession alongside their duty of loyalty to their client. Lawyers also have an obligation to ensure that their conduct does not bring the administration of justice into disrepute. And this duty also constrains the defense counsel in sexual assault cases who would attack the complainant with all they’ve got, including sexual histories and therapeutic records.
Arguments from the first school of thought in legal ethics would be in play around the now Honorable Madame Justice Côté’s advocacy for Big Tobacco when she was Big Tobacco’s lawyer. Following this line of argument, if there is a judgment call in question, it cannot be the judgment of the lawyer who acted as a brilliant jurist within the confines of the law. If there is a judgment call in question, it was Harper’s in his appointment of her.
Harper’s judgment call can be assessed outside of the framework of legal ethics. Given the notorious inability of ordinary citizens to pay for the costs of litigation these days, and given how Big Tobacco appears to have tasked its lawyers to drive up the costs of litigation exponentially, Harper’s choice sends a political message about the law: ordinary Canadians will remain exposed to the sharks Big Tobacco et co. can deploy to avoid justice.
The second school of legal ethics would emphasize the Rules of Professional Conduct for lawyers in cases of huge asymmetries of force and resource and stress that lawyers are precluded from instituting proceedings which, although legal in themselves, are brought solely for the purpose of injuring the other party. The role of counsel to Big Tobacco can be scrutinized from this perspective on the linkage of law to justice.
Harper’s executive decision to appoint Côté is no longer reviewable. She was sworn in as a Supreme Court justice on December 2, 2014. Those who think lawyers should be constrained by ethics alongside law will continue to weigh in on Harper’s judgment call about law’s relationship to justice. But Suzanne Côté’s role as Independent Counsel to the Douglas Inquiry raises a different set of ethical questions for lawyers and judges. And a whole lot of questions about whose judgment was exercised both in the Canadian Judicial Council’s inquiry into Lori Douglas and in the appointment of Côté to the Supreme Court within four business days of Douglas’ resignation.
Without her consent, photographs of Associate Chief Justice of Manitoba Lori Douglas were circulated. The photographs were of private, consensual sexual activity. A complaint of harassment by a recipient of the photos (who received them without Douglas’ knowledge or consent) was made to the Canadian Judicial Council – the body that investigates judicial conduct. The CJC dropped their inquiry into the harassment complaint, but on their own initiative decided to pursue an inquiry into whether the very existence of the photographs “out there” rendered Douglas an inappropriate appointee to the bench. The CJC, which has also received many complaints about the secretiveness of the process by which they judge judges, decided to make a test case for transparency of the “naked judge” complaint. They set up a panel of the Judicial Council to inquire into whether, indeed, the very existence of naked photographs “out there” is a grounds for removal of a judge.
The panel had its own lawyer to cross-examine witnesses in the process, George Macintosh. The Judicial Council also appointed “Independent Counsel”. The first counsel to occupy the latter position was Guy Pratte. He was troubled by how the panel’s lawyer was actively and aggressively attacking the Douglas case. Pratte (and independently Douglas’ lawyer, Sheila Block) applied to Federal Court for judicial review of the panel’s conduct. The Executive Director of the Judicial Council, Norman Sabourin, urged Pratte to withdraw his application. As Sabourin argued: “The maintenance of the relationship between independent counsel and the CJC cannot exist in the circumstances of a grave difference of opinion between Pratte and the CJC.” Pratte refused to withdraw his application and concluded, “I have no option but to resign as Independent Counsel.”
So the Judicial Council appointed Suzanne Côté to fill Pratte’s shoes. Côté promptly applied to have the photographs admitted into evidence for all of Douglas’ colleagues to pour over, the probity of such “evidence” far from evident. Next she applied to compel Douglas to release the clinical notes of her therapist into evidence. Less than two weeks ago, Douglas did what most victims of sexual assault do when faced by these tactics from defense counsel’s playbook: she quit.
The whole debacle has left a generation of young female jurists wondering whether they can ever be judges if there is the remotest chance that a compromising photograph of them could be distributed to the Internet without their consent. Certainly the message for victims of revenge porn is that they have lost all chances at a judicial career along with everything else they have lost.
Legal ethicists can argue both sides of whether Côté should be tarred with Big Tobacco. As with Henein, some will argue that Côté was doing, quite brilliantly, what lawyers are trained and required to do. We shouldn’t conflate the character of lawyers with the character of their clients. Others will argue that legal ethics precludes this type of shark-like conduct in lawyers. I want to put this debate about legal ethics to the side for a brief moment and ask a different set of questions:
Who was Côté’s client when she was independent counsel? Whose judgment was she exercising when she went after Douglas in this way? The Judicial Council’s policy on Independent Counsel, is that they do not act pursuant to the instructions of any client, but rather in accordance with the law and their best judgment of what is required in the public interest.
As a result of her unique position, and unlike Marie Henein, it could be said that Côté’s judgment calls in the Douglas Inquiry were exclusively her own. Côté’s judgments were formed outside of the solicitor/client framework. Those judgments are uniquely available for scrutiny, and should be judged outside of the professional margins of zealous advocacy. The proximity of Côté’s strategies and tactics to those of defense counsel in sexual assault trials leaves her open to public judgment in ways that Marie Henein is not.
Unlike lawyers who represent the vast majority of criminal defendants, Côté had at her disposal the most powerful resources of state to prosecute her case. Henein has a duty of loyalty to an individual accused, and that duty must be counterbalanced against her duty to the public and the legal profession. Côté’s paramount loyalty was to the public and the profession. As she was tasked with helping the Judicial Council determine whether or not to make a recommendation to remove a judge from office, she also had a duty of loyalty to the judiciary. In the context of these formidably solemn duties, it is not obtuse to say that Independent Counsel was, in fact, representing the state in the Douglas Inquiry. She had paradigmatically onerous obligations to ensure that her conduct did not bring the administration of justice into disrepute.
As a result of these features of her position as independent counsel, Côté’s appointment to the highest court in the land almost unavoidably brings with it a chastening message for both jurists and citizens, and most particularly for women. The brutalization of sexual assault complainants in the criminal courts has notoriously left women unwilling to turn to the law for justice. Côté simultaneously endorsed and embodied the shark-like ethics that has brought the administration of justice into ill repute in the court of public opinion. And Harper, by appointing Côté to the highest court in the land immediately after a brutal display of those ethics, sends out an ominous chill across the land.
Was Côté in fact an autonomous public agent? Executive Director of the Judicial Council, Norman Sabourin raised explicit arguments with Pratte that Independent Counsel was in a solicitor-client relationship and the client was the Judicial Council. He favoured the view that the role of Independent Counsel is “not that of a free-standing public office.” In that event, either Mr. Sabourin was the directing mind behind Côté’s approach to the Douglas Inquiry; or the Chair of the Council was the client, i.e., the Chief Justice of the Supreme Court of Canada, the same one who just privately swore Côté into her position on the Supreme Court on December 2, 2014, not a week after Harper appointed Côté. Not two weeks after Douglas resigned. Neither of these options generates a savory ethical signal for the law. They imply that Côté’s tactics were both unleashed and approved of by highest judicial institutions in the land.
I, personally, would like to see the retainer agreement under which Côté was hired. Ordinarily, of course, I would not be entitled to do so. The solicitor-client relationship is sacrosanct. However Federal Court Justice Mosley, in his judicial review of the Judicial Council, ruled that the role of Independent Counsel was inconsistent with the creation of a solicitor-client relationship with the Council. Unlike Pratte, Côté took a position quite malleable to the proposition that her client was the Council. Her view, is that she was in a solicitor-client relationship. Justice Mosley noted that he was not aware of the exact scope of the mandate given to Ms. Côté. But he affirmed that the role of Independent Counsel was to further, in the public interest, the objectives of the Council and its inquiry into whether Douglas should be removed.
The Judicial Council’s position on the Douglas Inquiry has been as transparency maximalists. Everything, including a female judge’s private sex life and her intimate mental life, was open for scrutiny. So why not Côté’s retainer? After all, by the terms of the Council’s policy on Independent Counsel, Côté was retained to exercise her best judgment of what was required in the public interest vis a vis the Douglas photographs. Aren’t all Canadian citizens, then, her clients? Isn’t this the paramount case for transparency?
Ordinarily I would not be interested in perusing the normally private legal documents of one of the few female judges in the 950 year history of the common law. Hesitation is particularly good counsel vis a vis those rare few at the top of the judicial hierarchy. Part of me wants to support women whenever they find themselves in that anomalous position, regardless of their, shall we say, “ambiguous” past. But the Honorable Madam Justice Côté’s very recent past has just been posted to the Internet on the Canadian Judicial Council’s web site. I should not want to ogle the documents that arose from Côté’s private exchanges with her client. Is it even more perverse that I want to see her client laid bare? I can so far only make out the blurriest of outlines. I can hardly tell who it is. I should probably resist the urge to peek and see what those images tell us about the appearance of justice.
Professor Susan G. Drummond
Osgoode Hall Law School
The Semantic Web in Libraries (SWIB) annual conference took place last week in Bonn, Germany. This event set out to:
“… provide substantial information on LOD developments relevant to the library world and to foster the exchange of ideas and experiences among practitioners. SWIB encourages thinking outside the box by involving participants and speakers from other domains, such as scholarly communications, museums and archives, or related industries.”
And it looks like they’ve done a good job fulfilling that aim. Thankfully the sessions were live-streamed so I was able to participate at least in a small way and, even better, the presentations were recorded and are now available on SciVee TV.
Luckily enough, one speaker I did get to see live on Tuesday morning (afternoon in Germany) was Dan Scott the Systems Librarian from Laurentian University. Drawing on his philosophy background Scott began by exploring some first principles speaking about the need for our “cataloguing efforts to be web oriented,” the usefulness of the Schema.org vocabulary and the role of the W3C Schema.org Bibliographic Extension Group. Richard Wallis, OCLC Technology Evangelist and Chair of this W3C Community Group, also touched on the work of this Group at LODLAM earlier this fall.
The Group‘s mission is to “discuss and prepare proposal(s) for extending Schema.org schemas for the improved representation of bibliographic information markup and sharing.” It’s an open group so anyone interested in helping shape the Schema.org vocabulary into a more library friendly place are invited to join in the conversation. You can also follow or join the public email list to keep up-to-date with their current activity.
Using an iPad for trial presentation is not only more efficient and economical than traditional presentations, it is also drop-dead easy to set up. Each and every piece of evidence is just a tap away, which means no more lugging around blown-up foam board exhibits or fiddling with unreliable overhead projectors. Gone are the last minute phone calls to expensive print shops or the hiring of $1,200 a day litigation technology specialists.
As for setting up and presenting on an Apple TV, this article will teach you everything you need to know.The Equipment
Although there are a countless number of reasons why you should use an iPad for trial presentation, simplicity is at the top. iPad trial presentation needs only three pieces of equipment: an iPad, an Apple TV, and an Adapter/Cable.iPad
I recommend purchasing the iPad Air 2 for your trial presentation. It is fast, light, and extremely reliable. As for storage, you will want to shy away from the 16GB models and go with a more robust 64GB or 128GB. You do not want to run out of storage in the middle of preparing for trial.
Please note, however, that these are just recommendations. The first time I tried a case with an iPad, it was an iPad 2 with 16GB, and it worked just fine.Apple TV
For a long time, the biggest impediment to using an Apple TV was a reliable Wi-Fi connection. Practically, this meant bringing in your own hotspot (and hoping for a strong signal) or relying on the court’s public and unsecured network — neither of which are ideal. Apple solved this problem with its most recent Apple TV (Model A1469) release by including Peer-to-Peer Airplay: a feature that eliminates the need for a Wi-Fi connection.
If you have an Apple TV and don’t know whether it will support Peer-to-Peer Airplay, the model number is located on the bottom. Of course, all hope is not lost if you have an Apple TV and it doesn’t support Peer-to-Peer Airplay; you will just have to make certain that you have access to a stable Wi-Fi network.The Adapter/Cable
The Adapter/Cable is the one piece of equipment that may differ depending on the courtroom AV system. One end of the Adapter will plug into the back of the Apple TV and the other end will connect with the courtroom AV system, so knowing what is available in the courtroom is crucial.
The most prevalent connection in courtrooms across the country is the VGA connector. Based upon experience, VGA connection cables are generally located at each counsel table, the lectern, or at the clerk’s desk.
Alternatively, if you are in a more up-to-date courtroom, you may plug directly into an HDMI port.
Once you know what input the courtroom uses, you will be able to purchase the correct Adapter/Cable. If the court has a VGA connector, you will need to purchase an Adapter similar to this HDMI to VGA:
If you are plugging into an HDMI connection, all that you will need is a HDMI cable.
In the event your courtroom has some other less common type of connector, just search the internet for an “HDMI to [unknown] adapter.” You will undoubtedly find what you need.The Setup
Next is the equipment setup. This is where most lawyers get uncomfortable, and that is why this process should be done days or weeks in advance of walking into the courtroom. Use your office or home television to set everything up for the first time. If you want to go one step further, use the iPad and Apple TV to prep your witnesses so that both of you are comfortable with what to expect. Then, a day or so before trial opens, get access to the courtroom, so that you can setup and test your equipment; most judges appreciate this because it is one less headache to deal with on an already hectic day.
The first step in setting up your Apple TV is to plug the Adapter into the HDMI port on the back of the Apple TV.
Here is what it will look like attached:
After attaching the Adapter to the Apple TV, you will need to connect the court’s VGA connector to the Adapter.
Of course, if all you need is an HDMI cable to plug into the court’s AV system, plug it directly into the HDMI on the back of the Apple TV.
Once the Apple TV is plugged into the court AV system, you will see the following Apple TV screen. This screen is different from the usual screen because there is no Wi-Fi connection.
Similarly, your iPad should not be connected to a Wi-Fi network; if it happens to find a Wi-Fi network that you have used in the past, go into Settings–>Wi-Fi and touch the active connection; the next screen will give you the option to Forget This Network, which is what you will select. Similarly, if you have an LTE enabled iPad, turn off the LTE. It is important to note that, even though your iPad is not connected to a Wi-Fi network, you do not want to disable Wi-Fi.
At this point, with the Apple TV Home screen showing on the monitor and the iPad disconnected from all Wi-Fi connections, you will be able to enable AirPlay by swiping up to reveal Control Center and selecting AirPlay.
If you have an older Apple TV and can’t use Peer-to-Peer mode, all hope is not lost. You can still use an iPad and Apple TV for trial presentation. You just need to make certain that you have access to a reliable, secure Wi-Fi network, or a rock-stable Mi-Fi device. If this is the route for you, you simply have to make sure that you connect the Apple TV to the same network as your iPad. Once the Apple TV and iPad are on the same network, you will enable the Apple TV display in the same way as above.
Now, with your iPad connected to the Apple TV, you are ready to proceed with your presentation.The Presentation
Choosing the right app for trial presentation is as important as getting the setup right. If you don’t know how to use the app or access the data efficiently, you will lose the benefit of this setup and return to using “ole reliable.” There are three products in the App Store that merit consideration:
TrialPad is the trial presentation app that all other trial presentation apps are measured. It has been on the market the longest and likely has the greatest number of users. In addition to the most basic features such as Callout, Highlight, Redact and Laser Pointer, TrialPad allows the user to label evidence with exhibit stickers, clip videos, and present evidence in dual screen mode. This app is fantastic and should be at the top of your list.
ExhibitView 5 is a very good product that has many of the same features included with TrialPad. Perhaps one of its best features of ExhibitView 5 is the “last item used” indicator. In the long list of exhibits, ExhibitView 5 keeps the last item used highlighted, providing clear context to the user.
TrialDirector is also a compelling product, particularly since it is free. Although TrialDirector does not provide the user with as many tools and features as TrialPad or ExhibitView, this is a quality app to use in order to get comfortable with this new presentation system.
As for data transfer, all of these apps allow you to import your data through Dropbox and iTunes. Importing the data through Dropbox is drop-dead easy and allows for transfer without ever connecting a cable. Consistent with Apple’s design language, Airplay is enabled in these apps by pressing the familiar Airplay button and selecting Apple TV.The Upshot
From preparation to presentation, the benefits of using an iPad and Apple TV for trial presentation are plenty. You can prep on the go because you can load all of your evidence on the iPad well in advance of announcing “Ready.” You have every exhibit available at the touch of your finger, thereby eliminating time spent searching for evidence stashed in a box, folder, or on the opposing counsel’s table. You can zoom-in, highlight, callout, or markup evidence in ways that have never before been available at the podium. You will be perceived by the jury as prepared, efficient, and knowledgable. If all that wasn’t enough, you will also save your client money.
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
Slater Vecchio Connected
10 Holiday Hosting Safety Tips
Making sure your guests stay safe this holiday season is just as important as finding the right décor. Under the Occupiers Liability Act, home owners must ensure their home is reasonably safe for guests, including both the condition of their home and activities occurring there. Ensure that everyone stays in the festive spirit with the following safety tips from the Canada Safety Council…
Canadian Securities Law
CSA release IIROC oversight review report
The Canadian Securities Administrators today released a report outlining the findings of an oversight review of IIROC’s activities. The review specifically sought to assess whether IIROC was in compliance with the relevant terms and condition of its recognition orders, the effectiveness of regulatory processes and the extent to which key regulatory processes were consistent, efficient and fairly applied….
The government has slammed the door on parliamentary and public involvement regarding the replacement of retiring Justice Louis LeBel. On November 30, 2014, Justice LeBel turned 75, the mandatory retirement age for Supreme Court judges. Most justices often depart some months before their birthdays, but LeBel decided to take his tenure right to the end. He gave his six months’ notice on May 23, 2014, and Chief Justice Beverly McLachlin’s office announced the retirement in a news release that day….
On April 30, 2015, lawyers in Ontario will exercise their duty to elect Benchers of the Law Society. Bencher elections have historically seen glacial changes in the complement of Convocation, the governing council of Ontario’s legal profession. As in many elections featuring low voter turn-out, incumbent candidates tend to say little of substance in their campaigns and challengers lack the prior engagement to stake out positions with confidence. The perspectives of your elected representatives can vary widely, and the views of some may surprise you….
Rule of Law
Re Mulgave School Foundation
If you make a large gift to a charity, you may have a specific purpose in mind, such as buying equipment for a hospital, building a new church, or funding scholarships in the Faculty of Engineering. Whatever you have in mind, consider whether you wish to make your gift to charity conditional on the funds being used for the specific purpose, or whether you want to give the charity some flexibility…
*Randomness here is created by Random.org and its list randomizing function.
This past summer, the Canadian legal profession was presented with yet another edition of the Canadian Guide to Uniform Legal Citation/Manuel canadien de la référence juridique, aka the McGill Guide. This new edition, the 8th in 28 years (an average of one edition every 4 years since its first publication in 1986) was expected, though not anticipated with any enthusiasm. Fellow Slaw columnist Susannah Treadwell has recently posted a review of the work. It seems to me that the changes to the previous edition are few, inconsistent, and not obviously necessary (Another colleague has told me that most of the typos from the previous edition have been corrected). Regardless, this new edition is 100 pages longer than the previous edition – a weight-gain of 20%. How is this possible?
There are two basic problems with the McGill Guide: the first is its authors, the other is its publisher.
Problem 1: Compiling the McGill Guide
The authors of the McGill Guide are the student editors of the McGill Law Journal/Revue de droit de McGill. The problem is that they are students. As law students, however intelligent and well-intentioned, they are information tyros at best, with little-to-no possible understanding or appreciation of the manifold bibliographical, publishing, technological, professional, historical, archival, retrieval and other competing considerations inherent in citation practice, and only a basic grasp of the stylistic requirements of scholarly writing and publishing. Though their skills may be appropriate to the editing and production of a student law review, one would question their competency to the establishment of a model for professionals. Further, the students responsible for the work change every year, allowing little scope for continuity of vision or process, much less time to develop a genuine understanding of or expertise in the subject. At a very elementary level, the students’ initial involvement is not a desire to advance citation practice (something they were probably unaware of before their first legal research and writing course) but more likely the pursuit of an extra-curricular credit, one to which the glamour of “law review” can be attached. The consequence is that the ongoing development of the McGill Guide is driven not by the needs of citation practice but by the needs of its student editors to make a mark during their year of tenure.
Problem 2: Publishing the McGill Guide
The publisher of the McGill Guide is Carswell, a Thomson Reuters company. I can’t say whether Carswell first approached the editors of the McGill Law Journal to publish their in-house style guide or whether the students approached Carswell; in either case, it is a commercial arrangement. As with any commercial arrangement, it is only sustainable if there is a regular income stream to both parties. The only way the income stream can be maintained is by the production of regular new editions. The immediate and continuing consequence of this is the quadrennial flow of new editions, driven not by need but by the publisher’s publication schedule. The student editors are, in effect, working for the publisher. For the most part, these new editions are unnecessary and unjustified, lightly sprinkled with gratuitous and often ill-considered changes that fail to advance citation practice, confuse and sow uncertainty and even disagreement among even seasoned legal writers, editors and instructors, and generally make citation practice even less uniform and uniformity more difficult to realize. The publisher and the McGill Law Journal might profit from the arrangement, but the Canadian legal information community and consumers do not.
Pricing the McGill Guide
Carswell is a successful, publicly-held company and it is natural that its first objective in publishing the McGill Guide is profit. This might help account for the significant price increase for the new edition: in May, a copy of the 7th edition in paperback was priced at $54; one month later, the new 8th edition was priced at $66, a price increase of 22%, hardly justified solely by the additional 100 pages in the new edition. Another rationale for this not inconsiderable cost is that the book includes both the English and French editions of the Guide. Though the Canadian market has been asking Carswell for years to publish the French and English editions as two separate, less expensive publications, Carswell has refused, claiming on the one hand that a bilingual and bijuridical legal culture requires both languages in one volume (the high road) or that bilingual production is possible only with the higher price to subsidize the additional expense of producing it in two languages (the low road). Both arguments are equally questionable.
Carswell may further counter that purchase of the new 8th edition in print now includes access to the long-anticipated online edition. It is unclear from Carswell’s website (November 2014) whether the purchaser is granted online access in perpetuity or only for one year. By comparison, the purchaser of the American Bluebook Online pays only $32, but that’s for an annual subscription, clearly stated on their website. Regardless, online access is a benefit that has effectively been denied to Canadian law schools and law students. Until a few weeks ago, the publisher’s website specifically stated that the print-plus-digital offer was not available to Canadian law students. Though this statement has recently been removed from the site, the restriction still applies. Carswell has determined that law students can have access only if their entire school is licensed, achieved by purchasing print copies for all first year students at the school. In the case of my school, the cost would be just shy of $20,000 annually – an absurd price for access to a simple reference work. When Carswell told us we could effectively license our schools for free by requiring all first year students to purchase a print copy of the Guide themselves (rather than the school buy it for them), we felt a line had been crossed. No publisher, however respected, can dictate the content of our program or required texts, least of all as a prerequisite for licensing. The consequence has been that, with only a few exceptions (one of them McGill), Canadian law schools have not licensed the online version of the McGill Guide and have removed it from the list of required texts for their first-year legal research and writing classes. And maybe that’s a positive development.
Beyond the McGill Guide
The McGill Guide has been adopted as a standard by many Canadian law journals, primarily and significantly the student-edited law reviews. It has been adopted by very few courts (the more recent editions by almost none) and by no law publishers. Though it has been relied upon since its inception as a basic desktop reference text and even as a required text for LRW (legal research and writing) classes, this role and status are increasingly questionable. It is increasingly clumsy and cumbersome, covering much more material than any legal practitioner or law student needs to know. (How likely is it to need to refer to a Welsh statute or a Singaporean decision?) It is increasingly unacceptable as a “uniform” guide – witness the alternative citation guide recently published by the Courts of Saskatchewan. Because it is essentially a consolidation of in-house practice at the student-edited McGill Law Journal, it is increasingly irrelevant to the creators and consumers of professionally produced, globally accessed, born-digital legal information. The rationale for the new edition is so slight that law schools have specified that either the 7th or 8th editions can be relied on by students equally. All in all, the McGill Guide has not been responsive to our changing needs; it is neither the resource we need nor the guide we have been pretending it is.
Where do we go from here? How do we move “beyond the McGill Guide”, which has become an expensive, bulky tome, inaccessible and largely irrelevant to the legal information-consuming public? Though I have said this before, and at the risk of sounding like Cato the Elder, screaming “Carthago delenda est!” (Carthage must be destroyed!) at the end of every speech he delivered in the Roman Senate, I think we must “disestablish” the McGill Guide as the arbiter either of legal writing style or of legal citation practice in Canada. At least for student and desktop reference purposes, it should be replaced with a new, shorter guide, one that is first a guide to legal citation practice, not a compendium of arcane and international legal resources or a style guide manqué. Let it be a guide that is truly uniform, a standard for legal citation practice in publishing, in the courts, in practice and in the academy. Most of all, this new guide must be digital and freely accessible by all on an open-access basis, like its British and Australian counterparts, and with a Creative Commons licence. (By the way, I’m not proposing the British or Australian guides as models; indeed, they share many of the same shortcomings of the McGill Guide, not least of all that they are compiled by students. But they are free.)
How do we begin work on a citation guide that is uniform, relevant, professional and freely available? As has worked in the past, when the neutral citation system for Canadian courts was created and adopted, and equally a uniform naming convention for Canadian judgments, I would suggest the work be entrusted to a core working group supported by an advisory board representative of all the affected communities: the Courts (and the Canadian Judicial Council), the law publishers both print and digital (especially CanLII and Lexum), legal writing and research faculty, law librarians and practising lawyers from both our French and English legal communities. Their mandate must be clear and concise. If one of the goals is to promote access from all disciplines and all sections of society, I suggest the following points for the group’s consideration:
Richard Susskind has said that “The legal profession has always been on the cutting edge of tradition.”
The work will not be easy and there are many barriers and traditional practices to overcome. Why are legal information specialists so obsessed with legal citation? I can think of no other profession that gives more than passing consideration to citation practice. Have we built up and aggrandized our legal citation practices to such an extent that, like procedural rules, only an initiate can understand them and they have become a barrier to access? At its most basic, legal citation, just as any other citation system, serves one purpose: to identify a document or part of a document to which the author refers while providing the reader with sufficient information to find it. Let’s abandon our exclusionary practices and, in the spirit of public service, of free access to law and open access to legal information, let’s reform our anachronistic citation practices.
Completion rates in free online courses are low—to critics, laughably so. But exactly how low are they? The answer might be a matter of interpretation.
Let’s say 79,500 people sign up for a handful of massive open online courses offered by Harvard University. About 44,500 of those people say they are there to complete the course and earn a certificate. About 23,000 say they are there either to browse the course materials or to complete a few assignments. The remaining 12,000 say they haven’t decided what their goals are.
At the end of the course, 10,500 people earn a certificate of completion. So what was the completion rate?
It depends on whether you think intent matters.
Those numbers are from a new study by Justin Reich, a research fellow at Harvard. Noticing how critics had seized on the low completion rates in MOOCs, Mr. Reich decided to complicate things by figuring out whether the people who were “failing” to complete the courses had actually been trying to complete them in the first place.
He got nearly 80,000 people taking nine Harvard MOOCs to respond to a survey about their goals. He sorted them into four categories: completers, auditors, browsers, and “unsure.” Then he tracked them.
The overall completion rate among survey respondents was 13.3 percent.
Among those who had intended to complete the course, the rate was 19.5 percent.
Among those who had not intended to complete the course, it was 5.4 percent.
None of those numbers is high by traditional standards, and it’s hardly a surprise that people who are trying complete MOOCs do so at a significantly higher rate than do those who aren’t trying to complete them. Some might even see the 19.5-percent completion rate among people intending to complete the course as more damning than lower figures that are not based on such distinctions.
In a paper published on Monday in Educause Review Online, Mr. Reich says he does not expect the findings to budge critics. He says the study’s goal, apart from providing a “useful reference point” for policy makers and university leaders, was to begin drawing important distinctions among people who sign up for free online courses. In traditional higher education, it’s safe to assume that all students want to finish courses and earn credit. Not so in MOOCs, where the lower barriers to entry attract students with a broader spectrum of goals and motivations, he says.
“This research has provided better answers to the question: Why do people come to these MOOCs?” writes Mr. Reich in his paper. “The next challenge is to get better answers to the question: Why do people leave?”
As I like to tell users who come to my library, law reform commission reports can be a legal researcher’s best friend.
Law commissions consult widely with stakeholders, they may compare how other jurisdictions have dealt with the same problem that has you stumped and they frequently dig into the history of an issue.
Here are a few recently released reports that caught my attention.
There is always a chance that a law commission has looked at a legal issue you may be working on. Slaw.ca collaborator Ted Tjaden has a section on how to find law reform commission reports on his legal research writing website.