No matter where you live in Vancouver, odds are pretty good there’s a dog nearby with the name Charlie.
How do I know this random tidbit? It’s thanks to CartoDB, a (mostly) free cloud-based mapping tool. While browsing their online gallery, I came across a user-generated map of popular dog names in Vancouver, created using open source data.
The product concept is pretty simple: CartoDB will take geo-location data, along with other connected contextual data, from an Excel spreadsheet or CSV file; and then turn those pieces into an professional-looking, interactive map.
We recently used CartoDB for a client project at Stem, where we plotted reports of medical device problems (metal hip replacements) on a map of the United States. The map showed which devices were implanted, where, and what symptoms were reported. While the data set was admittedly simple, with the finished product we were able to demonstrate the geographic spread of the problem at hand.
The map creation process wasn’t difficult – at least with our KISS-level usage of the product. The work was conducted in three phases: data importing (selecting the CSV or XLS file from the local computer); georeferencing the data (a simple tool, converting addresses or “City, State” combinations into latitude & longitude); and then applying one of the visualization wizards to customize the display. A few labels were then added, leaving us with a final product that was sharable via a limited view-only public account, or embeddable as an iframe within a website.
With visuals and imagery becoming an increasingly powerful part of communication, it’s worth highlighting a tool like this. Firms often have this kind of geographic-friendly data with the potential to be anonymized, making CartoDB a very powerful tool in all sorts of law-related settings. Product liability reports like the ones our client used are an obvious example, but there are likely to be a host of others.
A free account will get you unlimited tables and up to 50MB of data; plenty for most projects. Premium plans (that allow for private maps) start at $29/month.
I have a bit of a writing habit. I am not alone. Over the years, I have tried to determine why I enjoy putting words on a page or screen for others to read. It could be shameless need to promote my ideas, it might fulfill my outgoing introvert soul, and it could be that it helps me solidify the Why for my daily work life.
Why does anyone do what they do?
A Handbook for Corporate Information Professionals, edited by Katharine Schopflin and containing a chapter on internal and external marketing by info pros that I contributed is now available from Facet Publishing in the UK and the American Library Association on this side of the pond.
The Canadian Association of Law Libraries conference program will include a panel session on writing and publishing. Follow the conference tweets: @callacbd2015: Registration for the 2015 CALL conference opens next week! http://t.co/5coFriajB1
Today’s guest is Paul Floyd, a business lawyer for lawyers — and a very successful one. Paul may not have an edgy website, but he is a good lawyer who gives good advice, which means he has an enviable law practice without all the virtual offices, alternatives billing arrangements and iPads actually I can’t remember the last time I saw Paul without his iPad.
Among other things, Paul helps lawyers sell their practices, and I wanted to talk to Paul about valuing a practice because I felt like I never got a straight answer when I have asked how to do it. Paul finally explained it so I could understand: the best way to value a law practice is not to value it. That sounds mysterious, but it’s not. Paul explains why it doesn’t really make sense to try to come up with a value for most law firms, and what makes some more valuable than others.Question: How Do You Calculate Flat Fees When Starting Out?
This question comes from our forum. Aaron and I offer our own suggestions for coming up with flat fees early on in your legal career.
(By the way, we know that Aaron’s mic is too echo-y in this segment. We didn’t have a chance to fix it before we finalized this episode, but the echo should be gone by Episode 3.)Listen and Subscribe
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Thanks to Ruby Receptionists for sponsoring this episode of our podcast.
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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.
Create a playlist to help yourself fall asleep*
Not sure if the experts will say this is a scientifically helpful idea for falling asleep (IMHO it seems better than just counting sheep), but sometimes you will want to listen to music as you (hopefully) fall asleep. But how do you set things up so you aren’t stuck listening to music all night?…
Plan Your Research
I have been reading in the area of Lean Six Sigma lately and have come to the conclusion that good legal research practices and good project management skills have wide overlap. An excellent article from the May 2014 issue of Quality Progress by H. F. Ken Machado titled Plan of Attack: Managing the anatomy of your key projects is fundamental to organizational success has reinforced my conclusion….
Adapt to New Technologies
The CBA’s Practising Ethically with Technology guidelines, published by the CBA Ethics and Professional Responsibility Committee, has identified five areas where lawyers most often face ethical issues using technology….
* Editor’s pick
In September, 2012 I posted a short piece about a tenant who had been evicted from 6 homes in 7 years who was arrested to face fraud charges.
The Toronto Star has reported that Nina Willis was found guilty after an eight day trial that turned into a “spectacle”.
Is there any question as to whether she will appeal?
I wonder if many others, like me, find almost all those uplifting messages posted and spread on social and business media sites, intensely nauseating? Mostly they instruct, or rather order us to have some kind of simplistic emotional feeling surrounding “do something awesome”, “life is like a (any noun will do)”, “17 things that mentally strong people do” or, maybe even more shallow, the command that we “keep calm” followed by something really tedious. However, I could probably live with “keep calm and stop getting childishly over-excited about next to nothing”. Equally absurd is that the people who write or repeat the nonsense, when you actually know them personally, you are reminded that they rarely are true proponents of the supposedly high moral ground they espouse but are as likely to be even worse than the rest of us.
It makes me despair about such people or rather just the lack of real life experience of those who would create or pay any attention to this often deceitful drivel. Few in number I hope, but those unquestioning, never cynical or sceptical enthusiasts exist, ready to parrot whatever lies, myths and breakable promises that are handed down to them. I notice that they rarely are “experienced”, “trained”, “educated”, “knowledgeable” or “interested” in their field or necessarily good at it but almost inevitably “passionate” about what they do, an emotion that, entirely subjectively, I normally tend to associate either with romantic endeavours or uncontrolled criminality, sometimes both. Nothing is described in measured and comparative ways but only in terms of “awesome” and “amazing”, which it rarely appears to be. With, as I perceive it, their beliefs in the authority of whomever is in position, impossible magic, mysticism, myth and acceptance of the correctness of whatever status quo they encounter, while wishing them no harm nor intending to cause offence, I try to keep my distance from them. They just aren’t normally my kind of person. Probably no harm done; life’s rich tapestry and all that.
I haven’t come across an enormous number of such types working in legal and professional publishing, I’m pleased to report, yet I wonder why? Probably having something to do with the relative sanity and comparative rationality of the law is not irrelevant. More than this, it tends to attract somewhat “less is more” kinds of people who value statement of fact over hysteria and dishonesty, and opinion that is informed, maybe objective, even expert. In terms of a view on the world and such issues as social responsibility, quoting a former such colleague, and for those who have some familiarity with British journalism, those in legal publishing might, on balance, be enthusiasts more for The Guardian than The Telegraph. Consistent with the overall demographic base of publishing personnel, the presence of women is more fairly measurable than in some other places and there is more to be done but at least absurd attempts at exercising faux alpha-male traits tend to look somewhat out of place in the industry. Against that, in my own experience, genuine entrepreneurs in legal publishing seem somewhat few and far between, though not altogether missing. Perhaps the legal publishing types are too pleasant, thoughtful and cautious to take great entrepreneurial risks.
Therefore, one of my great attractions to the legal and professional publishing trade is the familiar presence of the good guys of this world. These are the ones who usually think before they speak, listen more than lecture, try to speak and act truthfully, honourably and with integrity and seek to avoid the political shenanigans that are an inevitable part of working life. At the same time, they are the ones who remain determined to make their industry and the products and services it produces exciting, innovative and relevant, rather than otherwise. I have thus far been able to keep close to these sorts and, where possible, avoid their risible management-speak opposites. I believe it serves me well.
I don’t think that the benefits that the good guys bring are minor or personal to me but rather are of massive significance to a successfully functioning legal and professional publishing industry and its customers. For those, and there are many, who would debunk the value of investing in creating and sustaining high quality standards in products and services, the good guys would certainly be off-message, I am certain. Jason Wilson’s comments on current and likely future trends are worth reading. Doing everything that is necessary, yet measured, proportionate and optimal to deliver the mix of great commercial and financial success with quality, customer service and satisfaction, responsibility to and for employees and shareholders requires a balanced approach is far from easy. Those who would take a one-dimensional approach to such challenges are not likely to be in for the long-term, as is evidenced by the revolving door in senior management positions, as the resolution of one set of own goal problems often enhances the significance of others.
For me, for all its pluses and minuses, the joy of being in and around legal and professional publishing is the camaraderie and in some cases long-standing friendships developed with the good guys of the trade. To witness in others professionalism, quickness of mind combined with depth of intellect, the ability to be aggressively commercial while simultaneously intensely caring about those affected by their behaviours and that of others, is a privilege. It is such a pity that sometimes those who are less close to the business, who, as customers or suppliers may occasionally see themselves as victims of the worst of its characteristics, are not always aware of some of the people who are part of it.
Perhaps the legal publishing industry, while the good guys are still there, could do more, instead of spewing out the platitudes of many of its public relations outpourings, to tell its audience about the general and specific range of issues it faces, including changing markets and digital challenges and how it is responding to or anticipating them. Much of what we see from them seems to pretend that the financial realities that some of them face do not exist and that their attention may, in some cases, not be on information publishing. Nevertheless, it’s pleasing when we see announcements of genuinely worthwhile innovation set in a context in which no less an authority than The Economist is optimistic about the future of the publishing industry; for the most part, I would agree. Still, I have no doubt that it could try even harder, honestly and genuinely, to present its more acceptable face and to be the sort of information, content and solutions partner that its customers would prefer to have and of which it is capable. In that context, as ever, the continuing and competitive rise of Bloomberg Law remains interesting.
Perhaps some of these issues will emerge and be further discussed at the 2015 Annual CALL/ACBD Conference taking place in May 2015 in Moncton, New Brunswick, in Canada. During the event, with Jason Wilson, I hope to be a presenter in a plenary session, moderated by Gary Rodrigues on the topic of The Future of Legal Publishing.
The abundance of data being collected on students has been celebrated as an opportunity to “personalize” education. But privacy advocates have long warned that digital paper trails might leave today’s students exposed if their personal information fell into the wrong hands.
The White House announced on Monday that it would be taking up the cause of student privacy, pushing legislation that would “prevent companies from selling student data to third parties for purposes unrelated to the educational mission,” according to a news release.
However, the bill, called the Student Digital Privacy Act, would focus on students in elementary and secondary schools, not college students, according to Obama-administration officials.
In a speech at the headquarters of the Federal Trade Commission, President Obama pitched the Student Digital Privacy Act as a measure to keep companies from misusing data collected in the course of providing educational services to schools.
“We’ve already seen some instances where some companies use educational technologies to collect student data for commercial purposes, like targeted advertising,” said Mr. Obama.
New technologies that encourage the collection and analysis of student data increase the risk to privacy, said the president, citing digital textbooks, online tutoring services, and software that helps instructors track student progress in real time.
Those technologies have proliferated in higher education as well, of course, and the possible hazards have not escaped the notice of federal regulators.
Last year the trade commission sent a letter to a New York court overseeing the bankruptcy of ConnectEDU, a company that collected data from high-school and college students in the course of providing services. In that letter, the regulator warned the judge against letting the company sell that information as part of its bankruptcy proceedings without giving students a chance to have it removed.
Barmak Nassirian, director of federal relations and policy analysis for the American Association of State Colleges and Universities, said the bill drew an “artificial distinction” by focusing on elementary and secondary students, and leaving college students to fend for themselves. “From a privacy perspective, there is really no reason to do that,” said Mr. Nassirian.
A White House official said the scope of the legislation had been influenced by a California law that also focused on elementary and secondary students.
If the Student Digital Privacy Act were to become law—a big if, considering the Republican-controlled Congress—it could still influence higher education. That’s because a lot of data follow students to college, said Michael Abbiatti, executive director of the WICHE Cooperative for Educational Technologies, a nonprofit that supports e-learning collaborations. So much data get “shipped” across that border, said Mr. Abbiatti, that definitions and systems that govern data collection in elementary and secondary schools tend to influence those in higher education.
“The legislation might not mention higher education,” he said. But, if it became law, it would “definitely impact higher education.”
The Law Society of BC recently issued a warning to its members to be vigilant about their firm’s cyber security after a BC firm’s files were held captive by a hacker who encrypted them and tried to extort payment in return for restoring access. There have been similar cases in Ontario in the last year.
…the firm found that its computer system was hacked and paralyzed by a computer virus known as the Cryptowall Virus when the staff showed up for work on Monday, December 29, 2014. Notices appeared on some of the firm’s computer monitors stating “Your files were encrypted and locked with a RSA2048 key.” The firm was advised to contact an address within 12 hours and pay an extortion fee to have the encryption unlocked. The notices further advised that if the firm did not pay the fee within the stipulated time, the fee would double. Finally, without payment, the files would be “irrevocably broken” after 30 days. The firm sought the help of its computer technician and did not pay the ransom or click on links provided by the extortionist regarding payment that may have exposed the firm to other risks. The firm had backed up its information and with the aid of professional technical assistance, was able to resume operations with systems running normally. The firm contacted the police who provided the firm with information about the virus which was likely transferred through an email attachment.
“Ransomware” infections are becoming much more common recently and are usually spread by infected email attachments or website links that trigger a download. Another common type, Cryptolocker, will scramble all the data files on your computer with virtually unbreakable encryption. You learn you are infected when a pop-up window tells you that your data has been scrambled and will be deleted unless you pay a ransom within a very short period of time, typically 48 hours or so. The ransom is typically in the range of $100 to $300 and payable only in Bitcoins, a type of virtual currency that makes payments untraceable. It is a relatively low amount so you have an incentive to pay it as a nuisance; but as you are dealing with criminals, paying it does not guarantee that you will get your data back.
This story serves as a reminder to be vigilant about email attachments and the risks they can pose, as explained in the articles Avoid the Dangers of Email and Would You Take the Bait in a Phishing Scam? from the latest issue Cybercrime issue of LAWPRO Magazine.
And from the same issue, this article explains the importance of Being Ready with an Incident Response Plan.
For better or for worse, Outlook remains ubiquitous (if not necessarily popular) among lawyers. And really, it’s for good reason. Nothing else combines email, contacts, calendar, and tasks in a single place. Unlike some, I’m an Outlook fan. For a while, I even figured out a way to use Outlook 2007 as a matter-based organizer, although Microsoft removed the Activity tab in Outlook 2010.
So I think it is pretty exciting that Microsoft is finally going to build practice management features into Office, specifically for lawyers. From Bob Ambrogi:
Microsoft unveiled a preview version of Matter Center during the International Legal Technology Association (ILTA) conference in August, but has said virtually nothing about it since, apart from what is said on the product’s web page.
Bob thinks it will be launched at ABA TechShow in April. If so, I will be sure to publish a preview as soon as I can see it in action. For much more information, read Bob’s post at LawSites.
From the ABA Journal:
The first practice area in which LLLTs [in Washington state] will be licensed is domestic relations. Cummings and 14 others have taken the required courses and will sit for a licensing examination in March. The state will begin licensing those who pass in the spring.
In addition to Washington, non-lawyers are doing some of the work traditionally reserved for lawyers in New York, and California is actively exploring non-lawyer licensing. Other states are starting to take an interest, as well.
Also in what-used-to-be-UPL news, LegalZoom recently became approved to provide legal services as an Alternative Business Structure in the UK. Expect it to try to figure out ways to do the same thing in the US.
When I first learned about “LII-in-a-Box,” a new legal information service developed by the African Legal Information Institute, I thought it might provide a stand-alone information system that could operate independent of the internet. I thought it might be something that would alleviate poor and intermittent internet connections that make access to online information difficult in under-served communities and countries. Honestly though, what really came to mind was the LibraryBox Project that Jason Griffey has been championing for a number of years now.
LibraryBox is an “open source wifi file sharing device” that consists of a router, a USB drive and some software to make it work. It’s described on the main project website as a “portable digital file distribution tool based on inexpensive hardware that enables delivery of educational, healthcare, and other vital information to individuals off the grid.” Could it be used to distribute legal information? I don’t see why not.
The “LII-in-a-Box” idea is a project of the AfricanLII and appears as a component of their mandate since the LII was founded in 2010. It’s an idea that does a great job of supporting their primary goal to “promote Free Access to Law and Open Justice in Africa” and it facilitates the development of other Legal Information Institutes in Africa.
As noted in their introduction, “most African countries suffer from shortages of IT skills, fast and accessible links to the Internet core, as well as reliable service providers offering advanced hardware for hosting solutions.” The “LII-in-a-Box” aims to solve this problem by providing a turnkey solution that enables “free law publishing projects, usually small entrepreneurial bootstrapped start-ups, to concentrate their initial efforts and resources on delivering much needed sustainable access to the law.”
“… produce a packaged software solution allowing for an easy installation of a localized legal information system. This solution will assist institutions that are not necessarily skilled in the specialized field of legal information systems to deploy and successfully maintain such systems with minimal or no further support from AfricanLII.”
The “LII-in-a-Box” is also an open source venture so it seems possible that someone could morph this into a LibraryBox-esque type project creating something that might be called a “LII-in your-Pocket.”
The specific details of wifi distribution would need to be worked out but LII users could access the legal information collection whenever they were within a reasonable proximity of the “LII-in-a-LibraryBox” implementation.
Updates to the Box could occur whenever a stable internet connection was detected, but a core set of documents would always be accessible to LII users. This set up is reminiscent too of the Occupy “darknet” developed in 2011 that created a “collective network infrastructure … owned and controlled by its users.”
So could a combination of the “LII-in-a-Box,” the LibraryBox and the Occupy darknet lead to the creation of a “LII-in-your-pocket”? Not sure. But however you might spin it the “LII-in-a-Box” is a project worth investigating.
At Above the Law, Elie Mystal points out that most employers still go for prestige, not a practice-ready certificate:
The practice-ready debate isn’t trying to address the problem that law grads are having. It’s trying to address the problem that law schools are having attracting fresh meat.
Lawyers are interrupted a lot, as often as every three to ten minutes. The difficulty of recollecting our time when we are interrupted so often can be more than a nuisance; it can be a real ethical problem if not carefully managed.The Risk of Over- and Under-Billing Amidst Interruptions
Ethical rules require attorneys to accurately account for their time. ABA Model Rule 1.5 requires a lawyer’s fees to be reasonable. ABA Formal Opinion 93-379 stated lawyers may not bill for more time than they actually spend on a matter. The potential ethical problem of billing amidst interruptions is that attorneys inadvertently bill for time spent checking texts or email more than any of us want to admit.[M]ore than almost any other type of worker, lawyers overestimate the amount of time they spend working.
Lawyers aren’t being malicious when they bill for time spent checking email, Facebook, and Twitter. Rather, accurately accounting for time is virtually impossible with all the interruptions we face.
Was that Facebook break ten or twenty minutes? Did we spend five minutes or twenty minutes writing that email? These distractions happen so often that we have trouble even remembering them all. This is not a small issue: the onslaught of Interruptions is so great that the couple of minutes spent dealing with interruptions here or there add up over the days and weeks.
Lawyers can also easily lose track of calls, emails, and short periods of time spent on matters. That leads to a failure to capture and bill time actually worked. While it is not an ethical issue to underbill, this obviously harms your revenue stream.
A big part of the problem is that humans are terrible at accurately reporting how long they spend doing tasks. One study showed that people underestimated how long they spent watching TV by about 4.3 hours per week, as compared to data collected from their TV monitors. Another study found that college students overestimated the time they spent on Facebook by about two hours a day.
There is no reason to believe lawyers are any better at estimating how long they spent dealing with a matter in the face of distractions. In fact, some evidence suggests that lawyers might be even worse than other people at reporting how long they work. An analysis of the American Time Use Survey examined the disparity between estimated and hours spent working and actual hours (as measured by real-time time diaries, considered by many the gold standard in self-reported time). The analysis found that, more than almost any other type of worker, lawyers overestimate the amount of time they spend working.How to Ensure Accurate Timekeeping While Facing Interruptions
Ensuring accurate timekeeping requires a healthy dose of self-awareness and possibly some difficult habit changes.
The first step is to take an honest look at how you are spending your time. Once you are aware of where your attention actually is, you can direct where you want it to be. If you experience a lot of distractions, classify them into two categories:
If you are interrupting your own work, try to figure out what triggers you to self-interrupt. What is going on right before you interrupt your own work? Perhaps you feel bored so you visit Facebook. Or you feel nervous that you’re missing out on important information, so you open your email. According to Charles Duhigg, author of The Power of Habit, most habits are part of a loop that begins with a cue. If you can identify your cues — the prompts or feelings that cause you to interrupt yourself — you can start to change the habit of self-interrupting.
Once you are aware of your triggers, you can begin developing more productive responses to the cues. For example, if you distract yourself when you hate the task at hand, perhaps you should force yourself to go ten more minutes, and bill accurately for that ten minutes. Then you can give yourself a real break. If you check Facebook when you have writer’s block, think of using writers’ prompts or other tools to break through. You’ll not only finish the task sooner, but you’ll also be able to more accurately bill.
External interruptions require a different approach. If you have an assistant, you can ask him or her to monitor your calls and emails for you. Tell your assistant to interrupt you only for true emergencies. If you don’t want to or can’t rely on an assistant, a well-crafted out of office message or voice message lets people know that they shouldn’t expect an immediate response from you.You can explain that you are working on high-priority projects and will respond to messages at certain times.
It’s a good idea to explain your clients why you may not be immediately available (absent emergency) during certain times of day. More likely than not, clients experience many of the same distractions you do and will understand the value of uninterrupted time. This allows you to be responsive when necessary and still maintain interruption-free times.Using Applications to Reduce Distractions
There are a lot of applications designed to help you minimize distractions. These may help you become more aware of how often you’re interrupted. That said, these apps don’t address the root causes of your interruptions — your boredom, fear, or whatever is driving you to self-interrupt. But if you need to force yourself to get a task done without getting distracted right now, these will apps will help you get the job done. And over the long haul, these apps can help you understand your triggers better so that you can develop lasting solutions.Strict Workflow
Although this Chrome extension lacks some design polish, it more than makes up for that in practicality. Strict Workflow blocks popular time-sucking websites such as Facebook, Twitter, and Reddit for a default of twenty-five minutes. And to keep you focused, Strict Workflow blocks you from editing your list of blocked sites until the timer is up.SelfControl
SelfControl is an open-source mac app that works much like Strict Workflow, but really sticks it to those who go to extreme lengths to check their Facebook messages. Even if you uninstall the app and restart your computer, SelfControl will continue to block your websites until the allotted time is up. Extreme, I grant you, but effective.Focus out Distractions
If you find yourself glued to your smartphone when you should be writing a brief, this Android app will block all your other apps for a duration of time that you set. This app is also free and has no ads.
The final trick to crafting accurate-as-possible bills is to enter the time contemporaneously to the work. The sooner you enter your time, the more likely you are to be accurate. You’ll never control or eliminate interruptions completely, but you’re more likely to remember how long you spent on a matter when you worked on it this morning than when you worked on it two weeks ago.
The ethics risks of billing in distraction flood zones depend on how severe the distractions are and the billing practices of each attorney. But what’s clear is that more focused, less distracted workplaces are better for your client’s pocket and for your personal sanity.
Featured image: “Closeup portrait serious businessman signing contract without looking at document” from Shutterstock.
What is it about social media that make them such a hot topic these days, even for lawyers, as this new book demonstrates? I suggest it’s all the people. Other areas of technology can be dry or technical or mystifying, other areas of law can be the realm of big corporations or telecoms or governments. Social media combine cutting-edge technology with real human beings just doing what we do – spouting ideas, going places, making pictures, telling stories. The topic is more about us than most of the others in law or technology.
Social media do not have all their own law, however. The usual laws that apply to people doing anything apply to them online and on social media. Social media law sits on top of Internet law, since all social media rely on the Internet to work, and Internet law in turn branches into commercial, IP, privacy, labour and other fields.
Paul Lomic, a civil litigator, has assembled an experienced group of Toronto practitioners to tell us about the law of social media and to show lawyers how to practise it, with forms and precedents. The result is a pretty useful introductory guide that should help orient those who have not thought much about it, and refresh the perspective of those who have. The style is accessible, the law is accurate (though of course in this field more than most, subject to change) and the precedents a good cross-section of what one is likely to need. Besides their printed versions, the precedents come on a CD to make them easier to use.
One of the principal uses people make of social media is to communicate with the world – starting with family, friends and co-workers. It is not surprising that much of the focus of the book is on the impact of these self-directed communications. Three early chapters deal with employment issues, including why and how employers should establish social media policies and how both employers and employees can get into trouble without them. Such policies come up again in the chapter on defamation and in the chapter on intellectual property. Clearly social media make it harder than it used to be to get employees to control their speech.
Another chapter deals with social media and marketing, with special attention to games and contests on different platforms. The privacy chapter provides a very thorough and expert discussion of several aspects of the field, though it does not particularly set out the impact of privacy rules on social media users apart from anyone else. It includes a review of Canada’s anti-spam legislation (CASL), which reappears in the following chapter on e-commerce. A final chapter touches on civil litigation, where social media affect discovery, admissibility of evidence, and the decorum of the courtroom, among other impacts.
Not everything about the legal operation of social media is special, however. Some chapters of the book focus on broader Internet law issues, like e-commerce, as noted. That chapter mentions briefly the evolution of mobile commerce, noting the difficulty of doing full disclosure of terms and conditions of sale, as required by consumer protection laws, on phone screens. It does not explore commercial aspects of the social nature of the media, or the uses of mobile devices as payment systems. The chapter appends a couple of contracts for use of a web site, though the main text does not explain why an online merchant would want or need to impose the conditions on a user or test the realism of asking a consumer to click his or her agreement to several pages of fairly dense text. The site conditions themselves are not controversial.
Many social media rely on dealing with data in the cloud, and a separate chapter sets out the basic issues in cloud computing, and offers models of contracts with cloud service providers. The degree to which such agreements are in practice negotiable may be changing as the field becomes both more competitive and more sophisticated. Having a reasoned checklist and source of potential clauses will be useful.
The book gives nearly 200 pages to a discussion of domain name issues and a large number of precedents, from registration to dispute resolution. It is not as clear as it might be whether the topic has much connection with social media. It is clearly Internet law, but the subject may occupy more space in this discussion than the topic takes in a normal online practice, much less one with a social media focus. That said, the discussion is well-informed, accessible and interesting.
Social Media and Internet Law seems to be aimed at the middle ground between whose who want a deeper examination on the purely legal questions, such as Barry Sookman’s several-volume treatise or the standard textbooks – since the individual treatments of the subject here are relatively brief, though accurate – and those who simply want to find a relevant form. For the latter, O’Brien’s Encyclopedia of Forms (11th ed.) has four volumes of forms on computers and information technology, including many forms on e-commerce and the Internet, cloud computing, and web development and use. LexisNexis’s Canadian Forms and Precedents has a chapter in its Commercial Transactions section on Internet and E-Commerce Agreements, essentially a very detailed ‘commentary’ followed by checklists and forms.
However, the treatises and the forms books can be pretty imposing and pretty expensive. Mr. Lomic and his colleagues have provided a point of access to the social media field and its legal context that will no doubt be welcome to a number of practitioners.
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.
Cut Your Library Nose Off to Fight for Space
File this one under different perspective. There is a tension in courthouse libraries. Keep in mind that, in most cases, whether the courthouse law library is funded by the local or regional government or by membership dues, the library is almost always run by the local bar and/or bench in North America. This means that you have competing interests over what the library is supposed to be and what it is supposed to do….
Forty hours on privacy
I will be teaching, for a third consecutive year, DRT-6929E-A, a privacy law course at the University of Montreal Law Faculty. The class is offered to Masters degree students and takes place every Monday from 4 to 7pm, January 12 to April 13, 2015. I have been teaching since 2009 (e-commerce law from 2009 – 2013) and every year, I really look forward to teaching. Here’s a summary of my 40 hour privacy course…
Le 21 novembre 2014, la Cour supérieure a infirmé une décision de la Commission des relations du travail (CRT) qui avait refusé de se prononcer sur la continuité de l’entreprise de l’employeur – une résidence pour personnes âgées – au motif qu’elle avait épuisé sa compétence. Il s’agit de l’affaire Turcot c. Commission des relations du travail….
Last month, the Supreme Court of Canada (“SCC”) delivered a single-paragraph oral judgment in the matter of R v Day, 2014 SCC 74, dismissing an appeal from the Supreme Court of Newfoundland and Labrador Court of Appeal (“NLCA”), 2014 NLCA 14 [Day]. The SCC’s affirmation of the appellate court’s decision seems to indicate that it is willing to accept minimal corroboration of an informant’s tip as the basis for a lawful unwarranted arrest….
Ontario Condo Law Blog
Top 10 condo law cases of 2014
Happy New Year. Our picks for the top 10 condo law cases of 2014 is an all-Ontario batch, with half being important Court of Appeal rulings. Some of them highlight the dire need for significant revision to our condo law….
*Randomness here is created by Random.org and its list randomizing function.
Expert evidence is often perceived as a necessary evil by many judges. The “evil” of these experts is that they tend to enhance the adversarial nature of litigation, unduly complicate proceedings, and often add unnecessary costs for the parties.
What is the role of the court in excluding or managing this evidence?
Concerns over the excessive use of experts has been identified in several jurisdictions. A 2002 study by Carol Krafka in the US found that judges are becoming more recalcitrant towards accepting expert evidence post-Daubert. The 2009 Jackson Report in the UK accepted the manner in which expert evidence is tendered, but found that it was often done so unnecessarily.
The test for expert evidence in Canada, derived from R. v. Mohan, is as follows:
The Ontario Court of Appeal recently released a decision in Meady v. Greyhound Canada Transportation Corp which elaborated on the second part of the test, whether the expert is necessary to assist the trier of fact.
The trial judge, Justice Platana, excluded the testimony of two experts brought by the plaintiffs, who were passengers on a Greyhound bus in northern Ontario. An individual with mental health problems had boarded the bus, lunged at the driver, causing the bus to swerve and topple, resulting in one death and 32 injured passengers.
The plaintiffs had sought to sue the mentally ill passenger, but also Greyhound, the bus driver, OPP officers who had encountered the mentally ill passenger prior to boarding, and the Crown who employed the officers. Justice Platana dismissed the action against all the defendants except for this mentally ill passenger, who did not defend the action and was noted in default.
Central to this finding was that he excluded the testimony of two experts, one in police training and the other in bus safety, which the plaintiffs claim would have established negligent behaviour on behalf of the bus drivers and the officers in preventing the incident.
Justice Dickson stated in R. v. Abbey,
An expert’s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary.
This “help” is further defined as information which is “likely to be outside the experience and knowledge of a judge or jury.” Chief Justice Strathy reviewed the trial decision of Justice Platana in Meady and dismissed the appeal.
Chief Justice Strathy referred to a Court of Appeal for British Columbia decision in Zink v. Adrian, which itself relied on the older case of Anderson v. Chasney et al., 57 Man. R. 343,  2 W.W.R. 337. In Anderson, a surgeon performed a tonsillectomy and adenoidectomy, and left a sponge in the patient, who subsequently suffocated.
Expert evidence in this case can be used to review general or approved practices, especially where they involve particular expertise or technical skill. But where carelessness of whether proper precautions should be taken can be determined by an ordinary person, an expert is not of assistance.
Chief Justice Strathy referred to passages in the Supreme Court’s decision of Masterpiece Inc. v. Alavida Lifestyles Inc. and the Court of Appeal’s decision in Johnson v. Milton (Town), which emphasized the role of the judge as gatekeeper of unnecessary information.
He ruled that technical knowledge or expertise was unnecessary in determining whether the officers should have restrained the mentally ill passenger or prevented him from boarding the bus because police trailing materials were used in trial for cross-examination of the officers.
Judges regularly deal with police powers and did not need an expert to explain these police manuals. The behaviour exhibited by the passenger would not have given rise for alarm or reason for detention under the Mental Health Act.
Similarly, how the driver operated the bus was something routinely examined by courts in motor vehicle negligence cases. The Greyhound manuals were also on hand and used for cross-examination.
The 2008 Gouge Report looked at the role that Dr. Michael Smith played in our legal system. The report stated,
Such an expert can do much damage without effective oversight by those who must provide it and constant vigilance on the part of the participants in the criminal justice system who can protect the system against flawed expert evidence. None of that happened here. The challenge is to ensure that this history does not repeat itself.
The report emphasizes the role that judges play in protecting the legal system from flawed or unnecessary evidence. Although much of the discussion of expert witnesses has focused on criminal law, Chief Justice Strathy noted that this applies equally to civil litigation.
The new Rule 4.1 of the Rules of Civil Procedure in Ontario emphasizes that the duty of an expert belongs to the court, not to the party who retained the expert. Although this had already been established at common law prior to the introduction of this rule in 2010, many experts such as Dr. Smith believed their role was to make the case for the party who was paying them.
Other alternatives to our current method of tendering expert evidence does exist. A 2013 paper by Campbell Valuation Partners Limited looked at the role of expert evidence in our courts and canvassed some of the alternatives.
The “hot-tubbing” method has been used in some common law jurisdictions such as Australia for several decades:
The Campbell Partners report proposes a third alternative, a hybrid between these other two, and expert conference:
The objective of an expert conference is to foster discussion between the experts, and to narrow the focus of the trial to only the genuinely disputed issues, with a view to ultimately reducing the time and cost of the litigation.
Experts meet in advance of trial to discuss their findings, exchange information, and identify areas of agreement and disagreement. If so instructed, experts will draft a joint statement, which is served to the court, to assist in better understanding the basis for the differences of opinion.
In a time of judicial economy, when the court system is already overburdened, the first thing which will probably go are experts who are not deemed necessary, even if properly qualified. The preparation and expense involved with retaining these experts is a savings passed on to clients, but if the necessity of their role is not properly established at the outset many lawyers may bear these costs unnecessarily.
Mila Gascó and Carlos E. Jiménez have issued a call for chapters for a proposed book that they are editing, which is entitled Achieving Open Justice through Citizen Participation and Transparency, to be published by IGI.
Here are excerpts from the call:
Call for Chapters
Proposals Submission Deadline: February 28, 2015
Full Chapters Due: June 30, 2015 […]
The aim of this book is […] to introduce the concept of open justice and to identify and analyze worldwide initiatives that focus on opening the judiciary by making it more transparent, more collaborative and more participative. This is important for open justice is not a new concept. Common Law has traditionally linked it to transparency and public scrutiny in order to guarantee the proper functioning of the courts and the opening of information to the general public. This book goes beyond this classical definition of open justice and intends to apply the three open government principles (transparency but, also, collaboration and participation) to the justice field.
Our ultimate goal is to show that an open government is not enough. We need to talk about an open state and, therefore, to make sure, we guarantee openness in the three state’s branches. No other publication has approached open government from the state perspective emphasizing the need to also have an open justice. […]
This book will be useful to politicians, judges and public sector officials (mainly those working in the judiciary) who need a convenient source of information on what open justice is and what it can do for opening the state and improving governance and democracy and on what it is being done around the world, to leaders and consultants who liaise with judicial agencies to design and implement open justice initiatives, to practitioners within the justice field (such as lawyers), and to academicians, researchers and students interested in the field of open justice in particular and open government in general.
Recommended topics include, but are not limited to, the following:
It is the intention of the book to include both empirical and theoretical chapters. Regarding the former, case studies of both developed and developing countries will be more than welcome. These cases may refer to examples of successful and less successful open justice efforts. […]
For more details, please see the complete call.
Radboud Winkels, Alexander Boer, and Bart Vredebregt have posted Towards a Legal Recommender System, a paper presented at JURIX 2014: International Conference on Legal Knowledge and Information Systems.
Here is the abstract:
In this paper we present the results of ongoing research aimed at a legal recommender system where users of a legislative portal receive suggestions of other relevant sources of law, given a focus document. We describe how we make references in case law to legislation explicit and machine readable, and how we use this information to adapt the suggestions of other relevant sources of law. We also describe an experiment in categorizing the references in case law, both by human experts and unsupervised machine learning. Results are tested in a prototype for Immigration Law.
The paper appears to have won an award at JURIX 2014.
Sue du Feu and James Lambert have published Impacts and Effects of Publishing Legal Information in a Small Jurisdiction: Privacy v Open Justice, Legal Information Management, 14, 284-289 (2014).
Here is the abstract:
This paper […] outlines the challenges faced by the Jersey Legal Information Board (JLIB) in providing free access to legal information. The power of modern internet search engines has implications for a small island jurisdiction wishing to make its case law available on-line (see: http://www.jerseylaw.je ). Having established protocols and policies to ensure a balance between open justice and privacy, several years later, JLIB is faced with concerns from individuals who feel that continuing public access to their earlier misdemeanours is an unfair burden. The paper will explain how the JLIB addressed the challenge of publishing court judgments online while safeguarding the interests of the individual.