Now you know. Although I think there is a space missing between Pixar and Animation.
I suppose you might also be wondering, “In what situation might I feel compelled to cite an animated action figure as an authority in one of my briefs?” That one I can conclusively answer: none. There is no situation in which you would need to or should do this.
If you aren’t subscribed to Lowering the Bar, just go and remedy that right now.
The submission deadline is 7 January 2015.
Here are excerpts from the announcement:
[...] The European Commission has just published the new call for proposals on “Action grants to support national or transnational e-Justice projects”.
The announced indicative budget is: 2 755 000 EUR.
The deadline for this call for proposals is 07/01/2015 12:00 (noon) CET.
This call for proposals aims at contributing to achieving the objectives of the European e-Justice Strategy 2014-2018. It will support the implementation of e-Justice projects within the European e-Justice Portal and at national level, in as far as they have a European dimension. Priority will be given to projects aiming at joining or enhancing existing or on-going e-Justice portal projects, such as:
More information, please see the call for proposals.
Looks like the good people at the Harvard Law Review who have been aggressively protecting the copyright of our be-loathed Bluebook against all those who would let legal citation free into the wild forgot to renew the copyright on the 10th Edition.
As a consequence, the 10th edition is in the public domain. Public Resource will thus publish an electronic version of the 10th Edition. [...]
[W]e have embarked on a joint project with Public Resource to create and publish a public domain version of The Bluebook – a project we refer to as Baby Blue. Our project will mix public domain portions of the 19th edition with newly-created material that implements the Bluebook’s system of citation in a fully usable form.
Couldn’t have happened to a nicer book.
As I understand it and as you might know, Mr Malamud has been working for some time to challenge both the appropriateness and the legality of the copyright protection claimed in The Bluebook. This week, on behalf of Mr Malamud and his foundation, Public.Resource.Org, Professor Christopher Sprigman of the Engelberg Center on Innovation and Policy wrote to counsel for the Harvard Law Review Association to outline its current position.
The letter is fascinating.
Not only does it outline the bold, multi-pronged, and factually and legally researched particular legal premise that underpins Mr Malamud and Public.ResourceOrg’s position, but it also announces plans to create a public domain version of The Bluebook. From the letter:
Based on what we’ve learned, we have embarked on a joint project with Public Resource to create and publish a public domain version of The Bluebook–a project we refer to as Baby Blue. Our project will mix public domain portions of the 19th edition with newly-created material that implements the Bluebook’s system of citation in a fully usable form.
The Legal Informatics Blog reports on the project and the letter, as does the LawGives blog, highlighting the interesting legal . And Public.Resource.Org has posted the letter, so we can all see its analysis and plans.
A hat tip to Robert Richards and the Legal Informatics blog for the news and links to the resources.
From the New York Post:
A white supremacist who named his oldest son Adolf Hitler strolled into a New Jersey courthouse yesterday dressed in full Nazi regalia — to try to convince a judge to allow him visitation with his toddler, Heinrich.
As a Bencher of the Law Society of BC, I voted against the accreditation of TWU Law on two occasions—first in the original Benchers’ debate on the subject in April, and then again in September following a Special General Meeting of BC’s lawyers. Both votes were defeated.
Between the two votes, I penned a Slaw column entitled TWU Law and the New Segregation. It was lauded in some corners for capturing the evolved public interest in equal treatment of LGBTQ people, and panned in others for being long on emotion and short on analytical rigor. The latter view noted that my arguments gave little regard to the Supreme Court of Canada’s 2001 decision in Trinity Western University v. British Columbia College of Teachers, and the rule of law in general.
The same view underpinned much of the Benchers’ reluctant justification for granting TWU’s accreditation in April. A large majority of the Benchers then held their noses—while variously describing TWU’s impugned Community Covenant as “abhorrent”, “repugnant” or “objectionable”—and voted according to the rule of law as they perceived it. Here, I set out a final time to respectfully argue that their reasoning was sound, but their conclusion was wrong.
My argument is nothing new, but is based on the reality that so much around us is new. Simply put, it posits that the rule of law is dynamic and must respond to changing circumstances within society. This is part and parcel to the established “living tree doctrine” of constitutional interpretation and the principle of constitutional supremacy. It takes into consideration the principle of stare decisis and the accompanying notion that stable and predictable application of law promotes the rule of law. Objectives of consistency, certainty and predictability are all foundational to the rule of law, but its relevance is sustained by adapting to transformative changes in the everyday experience of citizens. Public confidence depends on it.
In the recent SCC decision in Canada v Bedford, Chief Justice McLachlin outlined two basic conditions that each permit a lower court to depart from precedent set by a higher court: (1) a new legal issue is raised by the parties or by significant developments in the law; and (2) new circumstances or evidence fundamentally shift the parameters of the debate. The threshold is set high to respect stare decisis, but not so high as to prevent the rule of law from operating in symbiosis with other values like constitutionalism, democracy, fairness and human dignity.
Since 2001, there has been a sea change of circumstances in the debate over TWU’s Community Covenant. The change is known by simply looking around. Public acceptance of LGBTQ relationships and open identities has taken a quantum leap over the past 13 years, and is now commonplace. A lesbian woman was recently elected Premier of Ontario. Pride parades attract thousands of supporters of all ages and backgrounds. City halls fly rainbow flags without a whiff of dissent. In the uber-macho realm of professional sports, athletes are increasingly comfortable with coming out during their playing careers. Yes, entrenched pockets of bigotry and hate persist to threaten and marginalize the advancement of LGBTQ people, but basic acceptance is the new norm.
The clincher is the fact that same-sex marriage was legalized in BC and Ontario in 2003, and Canada-wide by 2005. Within this particular debate, there can be no more significant development in the law. It is so significant as to be politically untouchable; even a majority Conservative government will not re-open the issue for fear of being punished at the polls. The new reality is that an increasing number of Canadians believe that public institutions have no business placing dogmatic restrictions (or lending approval to such restrictions) on an LGBTQ person’s ability to express their fundamental identity or formalize their loving relationship in equal ways to others. To the extent that this is a generational phenomenon fueled by familiarity and integration, popular support for equal treatment of LGBTQ people and their relationships is unlikely to regress.
And given the new reality, the legal issue for consideration now and in the future by Canadian law societies and courts is not whether TWU Law graduates would become good lawyers and judges who do not discriminate against LGBTQ people—few opponents of accreditation doubt that the vast majority of them would become good lawyers and judges despite some discriminatory beliefs. The new legal issue for consideration is whether the discriminatory conduct of TWU Law is an acceptable infringement of the equality rights of LGBTQ people, and consistent with an evolved public interest in the administration of justice. In my view, it is neither.
This is an issue of our time. And this month, BC lawyers vote in a referendum on TWU Law’s accreditation. They have an opportunity to keep legal education and the administration of justice on the path of inclusion and equality—a path that reflects societal aspirations in 2014 and enhances the legitimacy and acceptability of the rule of law. They will show us the way.
The “cool kids” have made it popular to discriminate against adverbs. Stephen King, captain of the I-Hate-Adverbs Club, even said “The adverb is not your friend.” This problem goes all the way to the top, apparently:
[L]awyers who stuff so-call intensifier adverbs in their legal briefs—words such as “very,” “obviously,” “clearly,” “absolutely” and “really”—are more likely to lose an appeal in court than attorneys who avoid those “weasel words” …
Lawyers, aided by legislative champions of the downtrodden in many states and the United States Congress, have come to the rescue.
Adverbs in recent years have taken on an increasingly important—and often contentious—role in courthouses. Their influence has spread with the help of lawmakers churning out new laws packed with them.
A legal anthropology professor (which is a thing?) in Kentucky even wrote that “law generally, and criminal law especially, emerges through its adverbs.” Bryan Garner has pretty much settled the issue, of course. According to the Washington Post, Garner points out that “legislators and adverbs need one another.” Then he points out that King doesn’t know anything:
No legislative drafter ever says: Did I pull my readers in? That’s something Stephen King has to ask.
Featured image: “Opening a can of Whoop Ass” from Shutterstock.
Why is it so hard for the legal profession to act on what we know about the benefits of working in an environment that reflects the diversity of those we provide services to?
As a member of numerous volunteer committees, both inside and outside the legal profession, I’m often struck by the extent to which diversity challenges pervade most every sector. In the social and community services sector where I work and volunteer, I often find myself involved in committees made up largely of women and often failing to reflect the diversity of the service users in that sector. In legal circles, it is far more likely that I’ll find myself among a majority of privileged, often older white men.
These issues have been circling round in my head, and so it was with great interest that I noted Osgoode Dean Lorne Sossin’s recent tweet announcing publication of a paper he wrote with Sabrina Lyon, Data and Diversity In the Canadian Justice Community. Sossin and Lyon, in the paper, describe the ongoing failure of the legal profession to reflect the faces of those it serves as “a mischief that cannot be ignored.” Ultimately, they recommend addressing the gap through collection and dissemination of quality data that forms the evidentiary base for development of “responsive and effective policies.”
I agree that data collection is a necessary starting point and that once gathered, can inform policy development. Without good data, as Sossin and Lyon warn, policies are mostly developed in the dark and may not be effective.
But even with a foundation of good data, what’s the point of having “responsive and effective policies” if no one acts on them, consistently, persistently and especially when it’s inconvenient to do so?
In a recent post on Precedent, Daniel Fish asks: Why is diversity so hard to achieve? One answer is that many lawyers hold the belief that they are, by virtue of their profession, “objective and fair….They falsely think they are immune from holding prejudicial views. Too many lawyers, as a result, unknowingly favour people of the same gender and cultural background.”
This results in what is known as “affinity bias.” Affinity bias is described in a 2003 Harvard Business Review article, How (Un)ethical Are You? by Mahzarin R. Banaji, Max H. Bazerman and Dolly Chugh, as an “in-group favoritism” that each of us is unconsciously susceptible to engage in. We tend to favour those who are most like us and in doing so, disfavour those who are not. They note that:
…when those in the majority or those in power allocate scarce resources (such as jobs, promotions, and mortgages) to people just like them, they effectively discriminate against those who are different from them. Such “in-group favoritism” amounts to giving extra credit for group membership. Yet while discriminating against those who are different is considered unethical, helping people close to us is often viewed favorably.
In-group favoritism is tenacious when membership confers clear advantages, as it does, for instance, among whites and other dominant social groups. (It may be weaker or absent among people whose group membership offers little societal advantage.) Thus for a wide array of managerial tasks—from hiring, firing, and promoting to contracting services and forming partnerships—qualified minority candidates are subtly and unconsciously discriminated against, sometimes simply because they are in the minority: There are not enough of them to counter the propensity for in-group favoritism in the majority.
In Reducing Impact of Affinity Bias in the Legal Profession, Stella M. Tsai notes the importance of relationship to achieving success in the legal profession. She writes:
…relationships have a profound effect on the opportunities the attorney receives. Diverse attorneys can be viewed, often unconsciously and unintentionally, as outsiders due to their difference— which makes it difficult for them to be informally included in work assignments, social events, coffee breaks, casual conversations and other situations that are essential to success.
She goes on to note that:
The research compiled by the bar associations shows that diverse attorneys report having limited access to formal and informal networking opportunities; internal information networks, i.e., the proverbial grapevine; meaningful work assignments; training; mentoring and sponsors; and substantive contacts with clients. Also, they will receive inadequate feedback and “soft” evaluations (doing “fine” as opposed to meaningful review and suggestions for actions that will lead to advancement) and report that others feel uncomfortable around them.
Is it enough to be aware of this bias in order to combat its effects? Banaji, et al concluded that affinity bias cannot be combatted merely by “simple conviction nor sincere attention” but that those in authority must be ever vigilant and actively collect data, shape their environments and broaden their decision making. Further, those in leadership must take every opportunity to implement policies of affirmative action.
This advice is consistent with the solutions proposed by Sossin and Lyon but goes a step further into concrete action. Tsai sets out a range of other steps for law firms to take, based on the body of research in the U.S. Her suggestions include:
Each of these actions, on its own, won’t likely suffice, and doubtless even more action is required. Whether hiring associates, selecting volunteers for committees or inviting speakers to participate in conferences and panel presentations, what is clear is that good intentions and rhetoric alone won’t help to close the gaps.
Action is required and in order to be effective, it must initiate with those in positions of authority or leadership. Unless those at the top of our profession “walk the walk” in collecting and analyzing data, developing and implementing policies and ensuring that concrete action is taken on an ongoing basis, we’re unlikely to see any significant progress toward that goal when we look around our boardrooms, classrooms and conference halls.
The goal of Cyber Security Awareness Month is to remind us to guard against cyber threats. The Canadian Government getcybersafe website has resources to describe the risks and suggest ways to protect against things such as cyberbullying, scams and fraud. It covers both personal and corporate risks for smartphones, social networking, online banking, online shopping, and more. It also explains the differences between common threats such as pharming, phishing, and spoofing.
If you’ve ever wondered how many people actually fall for what appear to be blatant phishing attempts, take a look at this infographic that shows that even a very small percentage of phishing success translates into significant actual numbers.
Printers are pretty basic technology, after all. Nobody is really innovating in the “printer space” (if that’s a thing).
But printers are also critical technology for law practice. Whether you are a litigator or a transactional lawyer, and regardless whether you have a paperless office, you probably print out a fair number of important documents.
Imagine this scenario: you are going to try a case and you need to have four copies of every exhibit (one for the judge, one for the jury, one for opposing counsel, and one for you). Many of those exhibits are pretty big PDFs, too. Are you really going to print out hundreds or thousands of pages of exhibits, in quadruplicate, on a cheapo laser printer?
I tried that once and I don’t recommend it. I was up until 4 a.m. the night before trial, just printing things. My $120 Lexmark laser printer was struggling to keep up with the volume, and some of the larger PDF documents overwhelmed its onboard memory, slowing printing to a few pages a minute. I don’t know what I was thinking, and as soon as that trial ended I went out and spent about $400 on a workgroup-class laser printer.
I got a good printer, but I still found myself missing some features. Based on what worked for me and what didn’t, and some of the reviews we have done, here is what I think you should look for in a printer for your law practice:
The HP LaserJet Pro 400 M401DW that Randall reviewed last year ticks all the boxes. It’s what I would buy if I needed a new printer right now. The Brother HL5470DWT is a cheaper option without the fancy Internet-printing options but with an extra paper tray for letterhead or envelopes. I’ve met lots of happy Brother customers; I’ve just always been impressed with the durability of HP printers. Both should get the job done and last you a very long time.
Printers aren’t as exciting as smartphones and tablets, but they are far more important to a law practice. You will never be sorry if you spend money on a good one.
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. Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59
 The issue in this case is whether court hearing fees imposed by the Province of British Columbia that deny some people access to the courts are constitutional. The trial judge, upheld on appeal, held that the legislation imposing the fees was unconstitutional. I agree.
 In my view, the fees at issue here violate s. 96 of the Constitution Act, 1867. Although the province can establish hearing fees under its power to administer justice under s. 92(14) of the Constitution Act, 1867, the exercise of that power must also comply with s. 96 of the Constitution Act, 1867, which constitutionally protects the core jurisdiction of the superior courts. For the reasons discussed below, the fees impermissibly infringe on that jurisdiction by, in effect, denying some people access to the courts.
2. Stewart v. Hosack, 2014 ONSC 5693
 A lawyer or law firm cannot be disqualified unless there is a risk of prejudice to the client, although in some cases the client benefits from a presumption of risk of prejudice. A fair conflicts rule must balance the conflicting values of preserving the high repute of the legal profession and the administration of justice against the values of allowing the client’s choice of counsel and permitting reasonable mobility in the legal profession. See: Hames v. Greenberg, 2013 ONSC 4410 (CanLII), 230 A.C.W.S. (3d) 588.
 A lawyer cannot act in a matter where he may use confidential information obtained from a former or current client to the detriment of that client. A two-part test is applied to determine whether the new matter will place the lawyer in a conflict of interest: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of that client? If the lawyer’s new retainer is sufficiently related to the matters on which he or she worked for the former client, a rebuttable presumption arises that the lawyer possesses confidential information that raises a risk of prejudice. See: Canadian National Railway Co. v. McKercher LLP.
3. R. v. Conception, 2014 SCC 60
 When an accused person has been found unfit to stand trial and the other statutory requirements have been met, the court may make a disposition order directing that treatment be carried out for a specified period not exceeding 60 days and on such conditions as the judge considers appropriate for the purpose of making the accused fit to stand trial. The disposition order may not be made, however, without the consent of either the person in charge of the hospital where the accused is to be treated or the person to whom responsibility for the treatment of the accused has been assigned. (For ease of reference, we will refer to this as the hospital’s consent.)
 The main issue on appeal is whether, as the appellant contends, the court may make a disposition order directing that treatment begin immediately even though the hospital or treating physician does not consent to that disposition. In our view, the answer to this question is “no” in all but the rare case in which a delay in treatment would breach the accused’s rights under the Canadian Charter of Rights and Freedoms, and an order for immediate treatment is an appropriate and just remedy for that breach.
The most-consulted French-language decision was 159191 Canada inc. (Discount Location d’autos et camions) c. Waddell, 2013 QCCQ 3560
 Comme mentionné précédemment, la défense s’articule autour du caractère illisible de la clause dont veut se servir la demanderesse. Cette notion est véhiculée par l’article 1436 du Code civil du Québec 
« 1436. Dans un contrat de consommation ou d’adhésion, la clause illisible ou incompréhensible pour une personne raisonnable est nulle si le consommateur ou la partie qui y adhère en souffre préjudice, à moins que l’autre partie ne prouve que des explications adéquates sur la nature et l’étendue de la clause ont été données au consommateur ou à l’adhérent. »
 Comme nous le verrons, les principes applicables en l’espèce débordent le cadre de ce seul article.
* 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.
Finally, a tablet that can replace a laptop. Much as lawyers love their iPads – and they are great for surfing, e-mailing and presenting evidence in court – they are not true laptop replacements when it comes to business productivity. This is the next true war – consumer tablets have reached a saturation point and consumers are not replacing them as fast as manufacturers had hoped.
Always in search of profits, the major manufacturers have finally come to recognize that the enterprise table market is hot hot hot for any company that can get the technology and the security right.
While we attended the ABA Annual Meeting in Boston, we had a chance to visit a Microsoft store and test drive the Microsoft Surface Pro 3. To put it mildly, we were both impressed and left the store discussing when we would buy them and with what configurations.
The only thing that irritates us is that the keyboard is “optional” (not if you want to work) and carries an additional charge of $129.99. That aside, we loved it – more information from Microsoft may be found here.
Business-grade tablets, those that can truly replace a laptop, are quickly becoming the next big thing in solo and small firm technology as well as in the general marketplace. We are being bombarded with questions on this topic at our CLEs. Everyone is looking for a laptop replacement.
Happily, you can now leave your 4.5 pound laptop and clunky travel bag at home when you need to hit the road.
The Microsoft Surface Pro 3 is truly a laptop replacement and has received some glowing reviews, which certainly could not be said of the preceding two generations of the Surface. The tablet boasts a 12” display with a resolution of 2160×1440. The 4th generation Intel Core processor (i3, i5, i7) is the same processor that you will find in your laptop computer system, and provides this tablet with more than enough horsepower to run your business applications smoothly. The tablet comes preloaded with Microsoft Windows 8.1 Pro, which means that you can load and run any of your necessary business software –allowing users to get the same functionality out of this device as they can out of their laptop – at just a fraction of the weight!
The device can be configured with 4 or 8GB of memory and anywhere from 64 to 512GB of storage space. There’s a USB 3.0 port (unlike the iPad) and you can increase storage space by utilizing the microSD card capability. For network connectivity, this device comes with a wireless adapter supporting 802.11a/b/g/n and Bluetooth 4.0. It has both a front and rear facing camera, as well as a stereo microphone perfect for video-conferencing. We would recommend that you give serious consideration to the 8GB memory, 256GB storage, i7 unit.
The Microsoft Surface Pro 3 tablet can be purchased online from Microsoft’s webstore (www.microsoft.com) or from your local electronics retailer starting at $799.
The authors are the President and Vice President of Sensei Enterprises, Inc., a legal technology, information security and digital forensics firm based in Fairfax, VA.
Grant summarizes the controversy in this way:
[...] The term “Legal Hackers” is currently pending trademark registration with the USPTO. It was Published for Opposition on September 16, which means that there is a 30-day window from that date for anyone who believes they will be harmed by the trademark registration to formally oppose the mark. Anyone who is considering opposing the mark can also file a 30-day Extension of Time to Oppose at no charge which would extend the deadline for opposition (for the filer) until November 15.
The registrant of the “Legal Hackers” trademark is Legal Hackers LLC [...]
That said, I am opposed to the idea that the term “Legal Hackers” should be granted federal trademark protection. In a nutshell, I believe that the “Legal Hacker” moniker should remain in the public domain and not be subject to the blessing, or withholding, of a single person or entity. To me, the notion of “Legal Hackers” as a proprietary brand runs counter to the whole ethos of the movement and threatens to stall it, or fragment it, or both. [...]
By way of background, the term “legal hacker” is often used by participants in the legal hacking movement, in which software developers and legal professionals/academics cooperate to develop new technologies and law reform proposals.
From my perspective as someone who studies this movement, this attempt to trademark one of the key terms used in the movement seems particularly interesting, for two reasons.
First, the movement, which began around 2011 and now has participants in several countries, has both non-market-oriented and market-oriented dimensions, including professional (for-profit), professional (non-profit), governmental, civil-society-oriented, social, and cultural aspects.
Second, the controversy is interesting because one of the themes of the movement has been a call to remove property rights in law-related information in order to foster improved public access to legal information as well as innovation in legal technology and legal services delivery.
Paul Maharg of Australian National University has posted slides of a presentation entitled Convergence and fragmentation: Research, informatics and legal education, being given this week at Melbourne Law School.
Here is the abstract:
Fragmentation and convergence are two discoursal lenses that have been used to describe changes that we perceive in the domains of legal services, the legal profession, regulation and legal education. While they may appear orthogonal, the relationships between them are intimate, sophisticated and constantly shifting.
In this paper I shall argue that law schools need to engage with both processes. Fragmentation of knowledge offers law schools significant opportunities to reshape fundamentally what they do. Convergence opens up considerable dangers for law schools if the process is misunderstood or elided. To exemplify this argument and to begin to examine its strength as a tool for analysis I shall focus on one area of convergence, namely the three fields of legal information literacies, legal informatics and legal writing are sited. All three need to converge their interests if they are to gain status in the law school hierarchy of knowledge. I shall explore how studies in New Media on media convergence give us models for such convergence, and can show us the effects that the process may bring about.
The goal of creating content shouldn’t be to come up with a bunch of great keywords; it should be to come up with great content.
If you want to know what search-engine optimization is all about, spend a few minutes with this article from HubSpot.
Featured image: “A red rose bloom by gift” from Shutterstock.
A computer-science professor at Dartmouth College is building a smartphone application that can detect users’ levels of happiness, stress, and loneliness, he says, with the hope of helping students monitor their mental health.
The app, called StudentLife, draws on sensor data from smartphones to “infer human behaviors,” says the professor, Andrew Campbell. It was inspired partly by the mental-health struggles that Mr. Campbell’s brother experienced while in college. The professor also wants to test his hypothesis, based on classroom observations, that students’ fluctuating stress levels correspond to their behaviors.
“I feel as if there’s a divide between faculty and students. We don’t want to delve too deeply in their lives, but we want to be as helpful as we can,” Mr. Campbell says. “Is there anything that could give us an objective view?”
To find out, he ran a 10-week experiment in the spring of 2013 that compared behavioral data gathered by the app with self-reported assessments of mental health by 48 student subjects. Doctors and psychologists at Dartmouth and the University of Texas at Austin, who helped design the study, recommended which health surveys to use.
Using the GPS, motion-sensor, and microphone features built into smartphones, as well as machine-learning algorithms that infer behaviors, StudentLife recorded participants’ movement, sleep, and number of face-to-face conversations each day. Users uploaded their class assignments to a shared Google calendar so Mr. Campbell could track their workloads.
“I was really interested, in days they had lots of deadlines, what were their stress levels?” he says.
The results, according to Mr. Campbell, showed that the behavioral data correlated significantly with participants’ mental health and academic performance. Findings suggested, for example, that students who sleep more or have more conversations are less likely to be depressed, and that students who have higher grade-point averages tend to be less physically active.
Victor Schwartz, medical director of the Jed Foundation, which promotes emotional well-being among college students, has reservations about the app’s diagnostic capabilities. “It’s not really telling you if you’re depressed. It measures activities that he’s trying to associate … with being more likely you’re depressed,” Dr. Schwartz says. “I think there could be really very valuable targeted utilities for this kind of thing, but I think we need to be aware that there could be pitfalls.”
Objective behavioral feedback may motivate some users, Dr. Schwartz believes, but it could also make others feel guilty. “For every positive way of this playing out, I could easily imagine a negative scenario where they’re getting pressure and they’re getting pissed off.”
Mr. Campbell is concerned about the security of data gathered by StudentLife. He thinks it should be up to students to decide with whom they share their data. “I err on the side of being incredibly conservative when it comes to private data,” he says. “You own this data, but if you want to share it with your counselor, that’s completely up to you.”
Using an app like StudentLife as part of a treatment plan designed by a mental-health professional could be beneficial, Dr. Schwartz acknowledges. One of the first signs of bipolar disorder, for instance, is irregular sleep patterns, and so a counselor who notices changes in a patient’s sleep data could make a diagnosis more quickly, he says.
“In those well-thought-out circumstances, it could be extremely helpful,” Dr. Schwartz says. “I could see where this would be a really nifty tool.”
Mr. Campbell’s write-up of the experiment was nominated as a “best paper” last month at the ACM International Joint Conference on Pervasive and Ubiquitous Computing. A second study, planned for the spring, will provide feedback to participants during the course of the experiment.
The finding Mr. Campbell found most surprising? “No correlation between grades and attendance in class,” he says.
I have too many RSS feeds. I receive and send too many emails. My calendar is too full. My project list is too lengthy. I am a totally average person working in a law firm. What to do?
Simple, right? Perhaps one thing I should stop is asking redundant questions.
One way to consider your actions with the goal of stopping waste is use the 5 Whys method for your daily work. What is the root cause for why you are doing what you are doing?
Here is a practical example.
Me, speaking to myself: “Why are you monitoring the firm name using a Google News RSS feed?”
1. Because I want to know when the firm is mentioned in the news.
Why (do you want to know)?
2. So that I can let the Marketing Department know.
Why (are YOU doing it)?
3. Something might get missed if I don’t watch for this?
Why (is this really your responsibility)?
4. Not sure, I suppose someone from the Marketing department has this handled.
Action – Check with Marketing to ensure they own the process and then Stop the RSS feed.
One item off of the list and I didn’t even get to the fifth Why. My story is an example of Extra Processing.
Is there something that you can stop?
[The following is the text of a LAWPRO alert sent October 7, 2014. This post mirrors the alert, but includes samples of the new exemption clauses we have seen in claims files.]
LAWPRO has become aware of a new exception to coverage in certain title insurance policies which could expose real estate practitioners to claims from their private lender clients.
The issue has recently arisen in connection with private residential mortgage transactions, and in particular where the lender and borrower are separately represented, as required, because the loan is more than $50,000. This is the basic scenario: After the lender’s and borrower’s lawyers conduct their respective work and due diligence, the lender’s lawyer provides the mortgage advance to the borrower’s lawyer, in trust. The borrower’s lawyer accepts a direction from his/her client as to how the mortgage advance is to be paid out. The direction provides for funds to be paid to one or more third parties. Typically, the lender’s lawyer would not see this direction. The lender’s lawyer purchases a title insurance policy. It turns out that a fraud has been perpetrated (i.e., the borrower has been impersonated). The lender files a claim with its title insurer as a result of the fraud. The title insurer denies the claim as a result of an exception in the policy dealing with distribution of the mortgage proceeds.
The typical wording of this exception provides that, notwithstanding the coverage offered by the policy, the company may deny coverage and has no liability to the insured in the event the proceeds of the insured mortgage are paid to any person or entity other than the registered title holder, the holder of a prior registered encumbrance, execution creditor or other specified, limited types of payees. LAWPRO has only very recently become aware of this exception, but already we have seen it in E&O claims against lawyers involving residential lender policies from three different title insurers active in Ontario. Three sample clauses that have been involved in claims filed with LAWPRO appear here:
Sample #1: Notwithstanding the coverage offered by this Policy, the Company may deny coverage and shall have no liability to the Insured for any matters that involve the allegation of Mortgage/title fraud, including challenges to the validity and/or enforceability of the Insured Mortgage in the event the proceeds of the Insured Mortgage are paid to any person or entity other than the registered holder(s) of title or the registered holder(s) of a prior charge or encumbrance.
Sample #2: Notwithstanding anything else contained within this Policy, in the event that the proceeds of the Insured Mortgage are paid to any person or entity other than: i) to the registered title holder or holders, as the case may be; ii) holder(s) of prior registered encumbrances(s); iii) an execution or judgment creditor(s); iv) to a non-registered covenantor that is a spouse, child or parent of the registered title holder or holders; v) to credit card companies for credit cards in the name of the registered title holder or holders or in the name of non-registered covenantor(s) that are the spouse, child or parent of the registered title holder or holders; then the Company can deny coverage and shall have no liability to the Insured for any matters that involve the allegation of mortgage/title fraud, including challenges to the validity and enforceability of the Insured Mortgage.
Sample #3: An allegation that the Insured Mortgage was fraudulent, including a challenge to its validity and enforceability, if the Insured did not ensure that the balance of mortgage proceeds (after payment of real property taxes, prior registered encumbrances, execution creditors and unsecured debts owing to a bank, trust company, insurance company, credit union or caisse populaire) was made payable to the registered title holders, or did not ensure that an undertaking to make the balance of mortgage proceeds payable to the registered title holders was obtained from their solicitor/notary.
If the lender’s lawyer is not aware of or does not alert a lender client to the existence of this exception, and highlight the potential for a denial of coverage if the mortgage proceeds are paid to parties other than those permitted in the exception, the lender’s only likely recourse will be a negligence claim against the lender’s lawyer in the event the lender’s title insurance claim is denied. We have recently seen several claims arising out of this exact scenario, including some involving substantial dollar amounts.
Note that in transactions where a lawyer is permitted to act for lender and borrower (e.g., under $50,000 or when non-arm’s length parties) and payments are made to third parties, the lawyer will be taken to know that the exception applies if a fraud is perpetrated. Why? Because the lawyer will have both undertaken the distribution of funds in contravention of the exception and negotiated or accepted the policy with the relevant exception.
From a claims prevention point of view, the above scenario highlights the lawyer’s duty to carefully review the terms of a title insurance policy and explain them to a client. As lenders will expect fraud coverage to be in place, LAWPRO encourages lawyers acting for lenders to be aware of these exceptions and where applicable based on the presence of the exception, to advise lender clients that there may not be coverage where there has been a fraud and mortgage funds are paid to one or more parties other than those permitted in the exception.
This exception is not being added to TitlePLUS polices as a matter of course, although TitlePLUS underwriting requires the subscribing lawyer to advise if funds are going to non-permitted payees. Failure of the lawyer ordering the policy to comply with the underwriting requirement does not affect the lender’s coverage under the policy, although it could result in review of a lawyer’s status under the TitlePLUS Subscription Agreement. If you have any questions concerning the TitlePLUS underwriting requirements, contact the TitlePLUS Customer Service Centre via email at firstname.lastname@example.org or call 1-800-410-1013.
If you have any questions about the exceptions discussed in this communication, please contact your title insurer. If you have acted for a lender in the scenario described above and there has been a fraud, there is the potential for a claim and the circumstances of your matter should be reported to LAWPRO – see the How to report a claim page on our website.