The Importance of Technology Training in Legal Organizations

3 Geeks and a Law Blog - Sun, 08/16/2015 - 18:46
Among the nontraditional stakeholders who bring so much to the delivery of legal services, technology trainers hold a special place in my little lawyer heart.
the fundamental task of management remains the same: to make people capable of joint performance through common goals, common values, the right structure, and the training and development they need to perform and to respond to change. Peter Drucker. The Essential Drucker.
Training is, quite simply, one of the highest-leverage activities a [legal organization] can perform. Consider for a moment the possibility of your putting on a series of four lectures for members of your [organization]. Let’s count on three hours preparation for each hour of course time—twelve hours of work in total. Say that you have ten students in your class. Next year they will work a total of about twenty thousand hours for your organization. If your training efforts result in a 1 percent improvement in [the trainees’] performance, your [organization] will gain the equivalent of two hundred hours of work as the result of the expenditure of twelve hours. Andy Grove. "Chapter 16: Why Training Is The Boss’s Job." High Output Management
As an educator, I fear world-class [law schools] and high-performance [legal organizations] overinvest in “education” and dramatically underinvest in “training.” Human capital champions in higher education and industry typically prize knowledge over skills. Crassly put, leaders and managers get knowledge and education while training and skills go to those who do the work. That business bias is both dangerous and counterproductive. Michael Schrage. "How the Navy SEALs Train for Leadership Excellence." Harvard Business Review.
Technology is now as important a skill as are reading, writing, and mathematics. Everyone [including lawyers] needs to be able to use computers, search for information on the Internet, use word processors and spreadsheets, and download apps. These skills are now common and useful in every profession [including law]. Vivek Wadha. "Love of Learning Is the Key to Success in the Jobless Future.Washington Post.
This imbalance in technological growth will have some surprising implications. For instance, workers more and more will come to be classified into two categories. The key questions will be: Are you good at working with intelligent machines or not? Are your skills a complement to the skills of the computer, or is the computer doing better without you? Worst of all, are you competing against the computer? Tyler Cowen. Average Is Over: Powering America Beyond the Age of the Great Stagnation.
The Productivity Case for Technology Training
Turning Andy Grove’s point above into something more visual, here is a chart that translates productivity gains into full-time equivalents (FTE) at scale:

At a certain point, productivity gains add more to output than new headcount. Technology, training, and training on technology can be important sources of productivity gains. This remains true even when accounting for time invested in implementation and training. The following chart is entitled “Is It Worth The Time” and comes from my favorite webcomic, xkcd:


The math is simple. But the implications are profound. Sometimes, we have a hard time thinking at scale. Often, we are so focused on our immediate responsibilities that we fail to appreciate the benefits of investing in a better way of doing things. The comic I repeatedly use to illustrate this point:

The Case for Training, Not Just Technology
It is tempting to read the foregoing as a simple call for investment in new technology. That would be a mistake.
The common trap is make the purchase, flip the switch, and, BAM!, reap the productivity gains. After all, “any sufficiently advanced technology is indistinguishable from magic.” But sobering studies out of MIT find that for every dollar spent on new technology, enterprises must invest an additional ten dollars in organizational capital—training and process redesign—to capture the technology’s full benefits. Again, for every $1 spent on technology, you need to invest $10 in training and process.
Because people need to be trained and workflows need to be redesigned, related studies find that it typically requires five to seven years for an enterprise to properly integrate new technology. Without the complementary investment of time and resources, the technology only partially fulfills its promise, if at all. As a result, we have plenty of existing technology not being used anywhere close to full potential. As Greg and I have observed, much of that latent technology capacity has been sitting on lawyers' desktops for over two decades. Training on already-purchased technology can, in many instances, be more cost effective than purchasing new technology (though not always, sometimes the already-purchased technology is terrible, or the new technology is awesome).
The Ethical Case for Technology Training
Even states that have not yet followed the ABA in changing their rules of professional conduct to expressly reference “technology” are recognizing the necessity of technology for the practice of law: “Legal rules and procedures, when placed alongside ever-changing technology, produce professional challenges that attorneys must meet to remain competent.”
There is, of course, the cost component. Lawyers should not be charging their clients for two hours of labor when proper use of an available machine could reduce that labor to two minutes. Not knowing that technology could substitute for labor and, as a result, overcharging the client is a violation of a lawyer’s evolving ethical duty of competence.
But proper use of technology is about so much more than speed and cost. As I show in this rather simple video, not only does the failure to use simple features like automated numbering and cross-references add hours of unnecessary labor, but it also multiplies the opportunities for error by several orders of magnitude. Machines are better suited for the mind-numbing, drudgerous, laborious, and the tedious. They don’t get bored, tired, distracted, or bitter. Our work product should get better, not just cheaper, when we use technology properly. But incorporating technology requires training.
The Happiness Case for Technology Training and the Myth of the Digital Native
Lawyers will, of course, do the monotonous, banal, tiresome, and mundane whenever necessary. The idea of the “law factory” where younger lawyers “grind out standardized legal advice, documents, and services” is older and more prestigious than most practitioners recognize. But the extent to which lawyers are grinding has grown to the point where Vault is compelled to rate legal employers on whether they actually give their young attorneys substantive work. It should be unsurprising to anyone who has ever been a young lawyers, or around them, that associate attorney is, by far, the unhappiest job in America:

Notice how the young woman in the picture is staring at a computer (12-22 hours per day), rather than yelling at Jack Nicholson that “I want the truth” during her very first trial or beginning a closing argument to a jury with “I’m here to apologize. I am young, and I am inexperienced.” I imagine that she is actually thinking something along the lines of:

The reality is that computers are not magic. Computers do what we tell them to do. But we have to know what and how to tell them. While great strides have been made for limited-purpose, consumer-level applications (e.g., Instagram), the user interfaces of most professional applications remain far from intuitive.


Navigating unintuitive software is a bundle of learned skills, not an innate talent. The digital native is a myth. Acquiring a Twitter account in utero does not bestow an innate ability to commune with the machines. While 83% of them sleep with their smart phone, 58% of Millennials struggle to solve basic problems using technology. Most of what passes for the technological sophistication of our youth comes in the form of passive consumption (e.g., YouTube) or, at best, rudimentary communication (e.g., texts, Facebook). They are not trained, and therefore do not know, how to use the technology they encounter in a professional environment. They also don’t know what they don’t know and labor under delusions of adequacy. These delusions and the attendant time wasted on low value activities is one source of lawyers’ misery.
Proper training could eliminate some of lawyers’ ennui by permitting them to spend more time on the high-value work that makes our vocation gratifying.
The Business Case for Technology Training
In a law department or AFA environment, the appeal of higher quality work in less time is self-evident. But even reducing the number of billable hours spent on low-value work can prove profitable. Too much time on drudgery is precisely what lawyers, law firms, and clients are cutting. From a profit perspective, uncompensated time is pure waste that piles opportunity costs on top of actual costs. As I’ve written previously, the legal market that exists today has plenty of room to simultaneously lower costs for clients while increasing profits for law firms. 
In Sum
Technology trainers have the potential to make major contributions to the legal value stream. I believe strongly that they are among the most undervalued contributors to the success of a properly run legal organization. Too bad many lawyers are right to think that traditional approaches to technology training are terrible, as I will detail in my next post.




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Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that facilitates deeper supplier relationships by facilitating structured dialogue between law firms and clients. Given the current market realities, there is plenty of room for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.
The premise of the Service Delivery Review is that with people and pricing in place, rigorous collaboration on process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. The problem is that traditional technology training methods are terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.
Connect with Casey on LinkedIn or follow him Twitter (@DCaseyF).
Categories: Teknoids Blogs

Watson, is That You? Yes, and I’ve Just Demo-ed My Analytics Skills at IBM’s New York Office

LLRX - Sun, 08/16/2015 - 16:22
Alan Rothman attended a demo of IBM's Watson Technology, and the shares insights about the core components of this high profile new analytical tool. The technology holds potential value for multiple sectors and cross functional work streams, and as Alan notes, is still under development with additional applications forthcoming.
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My Twitter Digest for 08/15/2015

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Finding People Resources and Sites on the Internet

LLRX - Sun, 08/16/2015 - 13:54
People centric resources and sites on the Internet allow you to find individuals based on a range of objectives: personal (family, medical, genealogy); business (legal, corporate, financial); academic; government and career. Web search guru Marcus P. Zillman's new guide highlights selected sources to add to or supplement your current tools to focus research and retrieve information for actionable results.
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Summaries Sunday: Supreme Advocacy

slaw - Sun, 08/16/2015 - 08:01

On one Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe.

Summary of all appeals and leaves to appeal granted, so you know what the SCC will soon be dealing with (July 10 – August 12, 2015 inclusive).

Appeals

Charter (Québec): Discrimination; Two-Step Process
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (35625) July 23, 2015

The context here and the fact racial profiling is prohibited form of discrimination does not change the two-step process re a complaint under the Québec Charter. It was not here shown on a balance of probabilities a connection between a prohibited ground of discrimination and the decision to deny the training request — but that does not mean one can blindly comply with a discriminatory decision of a foreign authority without liability.

Criminal Law: Colour of Right Defence
R v. Simpson, 2015 SCC 40 (35971) July 30, 15

The onus is on the accused to show an “air of reality” to the asserted defence — is there some evidence on which a trier of fact, properly instructed and acting reasonably, could be left in reasonable doubt about colour of right. The evidential burden of showing an air of reality is lower than the persuasive burden of establishing s. 8 is engaged; and to engage s. 8, an accused has to go one step further — show this expectation was objectively reasonable.

Criminal Law: Post-Offence Conduct
R. v. Rodgerson, 2015 SCC 38 (35947) July 17, 15

Errors in jury instructions (concealment and clean-up; accused’s flight from and lies to police) necessite a new trial. The Court also indicated their “concerns” about the proliferation of long and unnecessarily complex jury charges; “… taming the unchecked expansion of jury charges is not merely advisable — it is a legal necessity.”

Tax: Characterization of Penalties/Proceedings
Guindon v. Canada, 2015 SCC 41 (35519) July 31, 15

Proceedings under s. 163.2 are administrative not criminal, so the Appellant herein is not a person “charged with an offence”, and protections under s. 11 of the Charter do not apply.

Leaves to Appeal Granted

 Creditor/Debtor: PIPEDA
Royal Bank of Canada vTrang2014 ONCA 883 (36296) July 16, 2015

How does PIPEDA apply in a commercial litigation context (here, a mortgage recovery action in which a Sheriff required a mortgage discharge statement before selling).

 

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Summaries Sunday: SOQUIJ

slaw - Sun, 08/16/2015 - 06:00

Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

PÉNAL (DROIT) : Le temps passé sous garde avant la détermination de la peine de l’adolescent doit être crédité à l’ensemble de l’ordonnance de placement sous garde et surveillance en vertu de l’article 42 (2) n) de la Loi sur le système de justice pénale pour adolescents et non à la partie de cette ordonnance qui vise uniquement la garde.

Intitulé : LSJPA — 1524, 2015 QCCA 1243
Juridiction : Cour d’appel (C.A.), Montréal, 500-08-000478-158
Décision de : Juges Marie St-Pierre, Martin Vauclair et Robert M. Mainville
Date : 27 juillet 2015

PÉNAL (DROIT) — jeune contrevenant — agression sexuelle — vol — complot — omission de se conformer à une peine — détermination de la peine — placement sous garde et surveillance — détention provisoire — crédit à accorder — interprétation de l’article 42 (2) n) de la Loi sur le système de justice pénale pour les adolescents — controverse jurisprudentielle.

PÉNAL (DROIT) — détermination de la peine — principes généraux — jeune contrevenant — détention provisoire — crédit à accorder — interprétation de l’article 42 (2) n) de la Loi sur le système de justice pénale pour les adolescents — controverse jurisprudentielle — agression sexuelle — vol — complot — omission de se conformer à une peine.

Appel de peine. Accueilli.

L’intimé, un adolescent, a été déclaré coupable d’agression sexuelle en vertu de l’article 272 (1) d) du Code criminel (C.Cr.) puis a ultérieurement reconnu sa culpabilité sous des accusations de vol (art. 344 (1) b) C.Cr.) et de complot afin de commettre un vol (art. 465 (1) c) C.Cr.). Il a également reconnu sa culpabilité sous deux accusations d’omission de se conformer à une peine pour adolescent en vertu de l’article 137 de la Loi sur le système de justice pénale pour les adolescents. L’intimé a reçu sa peine le 16 janvier 2015. À ce moment, il avait déjà passé 14 mois sous garde. La Couronne interjette appel au motif que la juge de première instance a erré en déduisant de la composante «garde» de la peine de garde et de surveillance la période passée sous garde avant la détermination de la peine.

Décision
M. le juge Mainville: Il y a toujours une controverse quant à savoir si une période de garde présentencielle doit être créditée à la peine de placement et surveillance en totalité ou à la partie de la peine qui vise la garde. Dans R. v. X (C.A. (Alb.), 2012-05-08), 2012 ABCA 142, SOQUIJ AZ-50854552, la Cour d’appel de l’Alberta était d’avis que la période de garde présentencielle devrait normalement être créditée entièrement à la portion de la peine qui vise la garde. Cette approche a ensuite été critiquée par la Cour d’appel de la Saskatchewan dans R. v. X (C.A. (Sask.), 2013-08-06), 2013 SKCA 82, SOQUIJ AZ-50994652, au motif que la garde présentencielle ne peut pas être considérée comme faisant partie du segment de garde d’une ordonnance rendue en vertu de l’article 42 (2) n) de la loi parce que l’article 42 (12) l’empêche. Ce point de vue a été confirmé par la Cour d’appel du Manitoba dans R. v. X (C.A. (Man.), 2007-06-26), 2007 MBCA 88, SOQUIJ AZ-50485278, et ce sont ces deux derniers points de vue qu’il y a lieu de suivre. Lorsqu’une ordonnance de placement et surveillance en vertu de l’article 42 (2) n) est la peine appropriée, le crédit découlant de la période de garde précédant la détermination de la peine doit alors être appliqué à la peine totale et non seulement à la portion garde de la peine. Le tribunal établit la durée de la sentence de garde et de surveillance dans les paramètres indiqués par la loi, mais il n’a aucun pouvoir discrétionnaire en ce qui concerne la répartition de la peine entre la partie garde et la partie surveillance. Le principe établi dans R. c. Mathieu (C.S. Can., 2008-05-01), 2008 CSC 21, SOQUIJ AZ-50488253, J.E. 2008-924, [2008] 1 R.C.S. 723, selon lequel la détention provisoire ne fait pas partie de la peine découle de l’interprétation conceptuelle de la détention provisoire. Il faut noter que l’article 39 (8) de la loi établit que, dans la détermination de la durée d’une peine pour adolescents qui comprend un placement sous garde, le tribunal ne doit pas tenir compte du fait que la période de surveillance de la peine peut ne pas être purgée sous garde. Il s’agit d’une indication claire que tout crédit pour période de garde présentencielle doit être appliqué à la peine en entier et non à une partie de la peine. Par conséquent, la peine prononcée en l’espèce est illégale. Puisque la juge a conclu qu’une période de placement et de surveillance de 21 mois était appropriée et qu’elle était prête à tenir compte de la période de 14 mois passée sous garde avant la détermination de la peine à un ratio de 1 pour 1, elle aurait dû rendre une ordonnance de placement et de surveillance de 7 mois aux termes de l’article 42 (2) n), dont 2/3 tiers doivent être passés sous garde et 1/3, sous surveillance au sein de la collectivité, sous réserve de certaines conditions.

Le texte intégral de la décision est disponible ici

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Summaries Sunday: Maritime Law Book

slaw - Sun, 08/16/2015 - 06:00

Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.

This week’s summaries concern:
Courts – Practice – Civil Rights

Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231 2015 ONCA 520
Courts – Practice
Summary: The parties entered into a contract appointing Maple Ridge Community Management Ltd. as the property management company for Peel Condominium Corp. No. 231 for a three year term. Pursuant to the agreement either party could terminate the contract upon 60 days written notice or pay in lieu of notice (para. 16.1), or, alternatively, immediately for cause…

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Bombardier Inc. et al. 2015 SCC 39
Civil Rights
Summary: Latif, a pilot, was a Canadian citizen born in Pakistan. Bombardier Inc. refused to provide training to Latif under his Canadian pilot licence based solely on the fact that the United States Department of Justice had not issued him a security clearance. Latif filed a discrimination complaint with the Commission des droits de la personne et des droits de la jeunesse under the Quebec Charter of human rights and freedoms (Charter). The matter was referred to the Human Rights Tribunal.

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My Twitter Digest for 08/14/2015

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20 Free Chrome Extensions for WordPress You Need Now – WPMU DEV

<CONTENT /> v.5 - Sat, 08/15/2015 - 07:03

20 Free Chrome Extensions for WordPress You Need Now – WPMU DEV http://premium.wpmudev.org/blog/chrome-extensions/

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The Death of EZ-Filing Bankruptcy Software

The Lawyerist - Fri, 08/14/2015 - 11:55

If you are a bankruptcy attorney and are attached to using EZ-Filing Bankruptcy Software, it is time to switch because EZ-Filing is shutting down.

The desire to provide quality products and services to our customers is our top priority. The extensive time it takes to research, develop and implement the new federal form changes across all of CINgroup’s bankruptcy software products has lead us to this difficult decision.

EZ-Filing is offering to help users transition from their platform to two other software applications – CINCompass and Best Case – and they note that users will be able to transfer client files to either of those options.

Users left in the lurch by the shutdown may also want to consider NextChapter, which boasts guided client forms and unlimited client storage. NextChapter has a monthly fee that starts at $59/month for a few filings and goes up to $699/month for unlimited use. Another option is TopForm, owned by FastCase, which goes with a flat fee purchase model instead – $1,276 for a single user, $3,917 for unlimited users and a few tiers in between. No matter which option you choose, it is time to get your data out of EZ-Filing before the final shutdown, which happens on November 30, 2015.

Featured image: “Death in the hood concept. Halloween character. Diablo.” from Shutterstock.

The Death of EZ-Filing Bankruptcy Software was originally published on Lawyerist.

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The Friday Fillip: Pulling Focus

slaw - Fri, 08/14/2015 - 08:35

For the next while the Friday Fillip will be a chapter in a serialized crime novel, usually followed by a reference you might like to pursue. Both this chapter of the book and the whole story up to this point can be had as PDF files. You may also subscribe to have chapters delivered to you by email.

 

MEASURING LIFE

Chapter 24
Pulling Focus

Nancy Tomasini was almost in uniform. But instead of the regulation peaked hat she wore a navy watch cap done up in an accordion double fold. A wind had come up, and some lumpy gloom in the morning sky made it look like rain was on the way again. Which was why she wore the watch cap: she hated how you had to put that stupid plastic shower cap thing on the peaked hat when it rained.

She squared her shoulders and then banged gently on the motorhome door. It rattled in the frame a little. Rangel pulled it open.

“Got a moment?” Tomasini asked.

Rangel stepped back to let her in.

“Inspector Bodley asked me to come by with a report,” Tomasini said, pulling off her cap and making hat hair.

“Ah,” said Rangel, all caution now. “That explains why I couldn’t get hold of you yesterday. You’re in on this safe house thing.” She gestured at the kitchen nook. “Coffee?”

Tomasini shook her head. “Thanks, but I’ve gotta run,” she said. “Just a messenger.” But she smiled as she said it, obviously pleased with the hands she’d been dealt over the last few days. “First off, they didn’t find any bugs in your place. Which is good news, right?” She shuffled her feet a little and looked at the corners of the small cabin. “He, uh, he wants to check out this place as well. If you don’t mind, of course.”

Rangel frowned and began to shake her head.

“Just think about it, okay?” said Tomasini quickly.

“It’s a law office,” Rangel said. “I practice criminal law among other things. I can’t have police roaming around in here.”

“I know, I know. He knows that, too. But the thing is, there’s not much point in clearing your house if your office is bugged. Right?” Rangel continued to shake her head slowly. Tomasini hurried on. “Ms. Tremaine — I gotta call her Mrs. Tremaine, you know? — she’s fine. Taking it easy. Teaching the guys how to play canasta. If you need to see her, just call me or Alan, er Inspector Bodley. They’re putting all calls through a central switchboard to make sure they can’t be traced back to the safe house.” She raised her voice: “So if anyone’s listening, tough . . . whatever.” She flashed a quick smile at Rangel. “And that’s it. Oh yeah, we’re liking your idea of going back into Jared Willoughby’s disappearance. It ties a bunch of stuff together.” She rotated the watch cap in her hands, sought out Rangel’s eyes, and said, “Think about . . .” and she waved the cap at the room.

And then she was gone, the door closing Rangel in with a metallic click. She stayed stock still and silent for a minutes or two, imagining that someone could hear her, maybe even see her.

THE FAMILIAR NOTE OF a particular car’s engine entered the motorhome and, like someone released from a trance, she began to move again. Checked the time. Not yet nine. Checked her desk phone. No messages. Came out of her office and poured a coffee, turning with it in her hand as Mitman came in.

“Hey,” she said.

“Hey to you, too.”

“Good weekend?”

“Busy,” he said, and paused. He shrugged out of his windbreaker and hung it on the coat rack using a hanger. “Can we talk for a bit?”

“Uh oh,” said Rangel, her face tightening. She felt anxiety scrape at her insides. “There’s another problem? I couldn’t take another problem, Wally.”

“Let’s go sit down,” he said. “It’s not so much a problem as a . . . thing.” He herded her gently into her office.

“First I should tell you,” she said, sitting heavily behind her desk, “that the police think this office may be bugged.”

“You’re shitting me.”

“Well, there were big doings over the weekend.” Rangel tried to keep reproach out of her voice but didn’t quite manage. That wasn’t fair, she told herself immediately. Wally didn’t owe her any of his time on the weekend. And they didn’t have that kind of duty-bound understanding of things anyway. She found a more neutral tone. “The provincials found a bug in Gladys’s place, so they’ve moved her to a safe house.”

“Where?”

“No idea. And that’s the idea, of course. So they wanted to search my house too and I let them. Nancy Tomasini was just here to tell me that they didn’t find anything — and that now they want to clear this place.”

Mitman frowned. She suddenly saw how tired he looked. He said, “Maybe we shouldn’t talk here then.”

“Sod that for a game of soldiers,” she said with heat, an old Belfast boyfriend’s favourite angry expression falling out of her mouth. “I will not run and hide.” They were silent for a moment. “And I will not have the police poking into my law office, no matter how, how . . . mobile it may be.”

“Yes, but . . .”

“No.”

Mitman wriggled for a moment, then shrugged. “Your call, girl,” he said lightly. And after a deep breath, “So where was I this weekend, you ask.”

“I don’t. Didn’t.”

“But you were thinking it. You’re an open book to me, Gregoria Rangel. A good read, I might add. Well, most of the time. So let me explain.” And then abruptly he ran out of words. This surprised him. He’d kept so much in his head, where it had seemed perfectly clear. But now that he wanted to share his work, his findings, he realized he hadn’t picked the words to couch it all in. And it needed couching.

“I . . . I’ve been worried,” he started. “Worried about this business of Sanders’ appeal.” He held up a palm to stop her from interrupting; he’d started and now he had to get it all out. “My fear is that I slipped up somehow, didn’t . . . give you the right advice.” The palm again. “About the computer, I mean. And about, well, the computer expert we used. So anyway I checked. No, no, it’s okay. I was careful. Really really careful, okay? Let’s just say a little bird responded to encouragement and told me. It turns out that our Professor Gampel is being looked at askance now. Hindsight is still focusing and isn’t quite twenty-twenty yet, but the impression seems to be that he was — there is no other way to put this — careless in his opinions, um, much of the time. Turns out there’s a wee substance abuse problem.”

“Oh dear god.” Rangel felt her skin shrink. She held herself rigid.

“The mitigating factor — well, mitigating for us — is that he has done most of his work for the Crown. After all, that was our big qualifying element, why we picked him. So if anyone’s screwed the pooch, it’s the big city PPS people. But the bottom line is that a bunch of stuff is about to come unwrapped.” Mitman, having delivered his bad news slumped in his chair and let his exhaustion show.

Rangel’s mind was racing. “This doesn’t mean necessarily that the conviction is wrong.”

“Absolutely not.”

“But —”

“It might be.”

“Shit. Who could have had access to his computer? That’s the question, right?”

Mitman shook his head wearily. “Anyone could, I suppose. We looked at that. Park his junk on Sanders’ machine. Either use it like a hidden storage depot or —”

“— dump it there to frame him.”

“Someone on the local network, more likely. We did think about all of this.”

“We need to think about it again. I have to call Antipov.”

Mitman nodded. “But let’s do the thinking part first. I mean, formally we’re out of it. And we can’t exactly tell him we’ve been — I’ve been — poking around in things that might affect the appeal.”

“Think,” said Rangel to herself. And then to Mitman, “Thank you, Wally. Now go home. Get some rest.” Mitman nodded, and did as he was told.

RANGEL SAT, LOST IN thought, for an uncounted time. Then she got up and paced within the confines of the motorhome. When this proved to be too constricting, she went outside and was two blocks away before the cold wind forced her back to get a coat. After half an hour of unaware wandering she found herself standing outside her burned out office, where a crew was busily at work banging and setting up a racket with screaming machines.

The sight of all of that effective industry acted like a lens through which her various anxieties came into focus and found resolution or, at least, resolve within her. In ten minutes she had made the decisions that the contractor needed and a couple of changes that he was persuaded to accept. That left merely the future to be tackled.

Rangel felt refreshed, powerful. “Yes,” she thought. Just that: yes.

AT THE OFFICE RANGEL phoned Nancy Tomasini. “Here’s the deal,” she said. “Just between you and me, can you find me someone not in the police to sweep this place? I’d be happy to share the results with Inspector Bodley.”

There was a moment’s silence on the other end of the line. Then Tomasini said, “Yeah. I think so. A . . . government employee who might be persuaded to do some moonlighting.”

“But not a cop.”

“No.”

“Can you set it up for me, as soon as possible?”

“I’ll call you back.”

Rangel fished around on her desk until she found the slip of paper that had Dominic Archer’s phone number on it. He answered after the first ring. “Mr. Archer,” she said, “I’d like to meet”

Archer made uncomfortable noises. “I’m not sure where I am on this,” he said eventually.

“No matter,” she told him briskly. “I can come to you, if that’s more convenient.”

Dead air for a moment. “Yes,” he said, trying it on for size. “Yes, all right. I suppose it’s okay.”

“Where are you?” He told her and she made a note. “This afternoon? Say two o’clock?”

She dialled once more. Sergei Antipov was his usual cheery self. “At last we connect,” he said. “It’s only to give you a heads up that the appeal has been filed. We’ll email the stuff to you later today. And a case management judge has already been appointed, which is unusually quick. Our take is that somebody up there thinks highly of you. So I suspect he’ll want to meet with the parties very soon. Conference call. Not in person. We have some experience with him — it’s David Wang, by the way — and he has in the past arranged for trial counsel to listen in.”

“I see,” said Rangel. “I appreciate this. Let me know when I’ll need to talk to your E&O counsel.”

“Will do.”

And that was that. She checked herself. No chills, no collywobbles, no jitters.

She sat considering her next move. For some reason, her mind played back a phrase that Mitman had used: ‘A little bird told me.’ And then she remembered the small bird’s head carved by Jared that Gladys had given her.

Concertinas, she thought.

Giving her head a shake, she told herself: ‘Focus.’

 

© Simon Fodden

Bokeh

There’s no such thing as too much information. Or, rather, there’s always and everywhere been too much information bearing on us from the world; and problems are always filter problems. Vision’s like that: organizing the flood of sensory data at every step in the process of perception, suppressing, enhancing, eliminating, supplementing. This creative process is obvious because of peripheral vision, where we “sort of see” but not really. But even in the main visual field, we focus on some things — perceive some things — and give the rest a quick watercolour wash.

Gestalt psychology labelled what we perceive as “figure” and the rest as “ground.” We’ve all tried the peculiar puzzles that challenge us to flip our perception between figures:

When we’re photographing, we may want to encourage or lead the viewer to focus on a particular aspect of the scene, and there are lots of hints around as to how to guide the eye to where we want it to go. One of these has to do with depth of field, that ability of a lens to treat distance as a limit to visual sharpness, or focus. Used creatively, restricting a camera’s depth of field can simulate the operation of the human eye and control perception: your precious offspring (cunningly located off centre) is in crisp focus, while your irritating nieces and nephews who crowded into the shot are simply colourful, supporting blurs.

Bokeh is a Japanese word to describe those “colourful supporting” blurs that are in fact pleasing to the eye — a kind of naughty way of sneaking the “ground” back into “figural” attention. Here’s a photo (via Wikipedia and Flickr) that uses “coarse bokeh” to blur and expand the background highlights:

It’s a source of some frustration to me that the camera I now carry with me — my smart phone — has a small sensor and so can’t work with depth of field as much as I might like — and certainly can’t do bokeh. There are apps that can simulate bokeh by applying various blurs to the scene after masking the foreground figure, but that’s often more work than you might like.

Categories: Teknoids Blogs

Hacking Chaos: The Cornell Method of Note-Taking

The Lawyerist - Fri, 08/14/2015 - 06:12

Taking notes by hand is better than typing your notes on a computer. Handwriting forces you to slow down and focus on what is important. This greatly increases comprehension.

That is where the Cornell Method comes in. The Cornell Method has you separate your notes into a note-taking portion, key points, and a summary. It is ideal for lawyers.1

Setting Up the Cornell Method

To arrange your notes in Cornell fashion, take your standard legal pad and draw a thick vertical line down the left-hand side of the paper, approximately 2-3 inches from the side of the page. Then draw a horizontal line all the way across the paper about two inches from the bottom of the page. You will end up with something like this:

You can also design one online and print it, or you can purchase Levenger pads optimized for the Cornell Method.

There. You are all done getting ready to take notes Cornell-style.

The Structure of the Cornell Method

Dividing your paper gives you three sections:

  1. The largest section is for note-taking.
  2. The left-hand margin is your key points and key questions section.
  3. The bottom is your summary.

Opinions differ wildly on what should happen with your notes section. Some people — particularly those that recommend it as a college study tool — subscribe to an elaborate set of rules about recording, reciting, reflecting, and reviewing. You probably do not need to go that deep. However, there is one principle that should guide you if you’re going to take notes using the Cornell Method: write less, not more.

If you have gotten used to taking notes on a laptop, you are already guilty of writing down too much. Treat your notes section like an outline. Shoot for key points, not a verbatim transcript. Think of that section as an outline you will return to later, after your lecture or meeting or motion hearing has finished.

The left-hand margin is your cue and recall section. When you are using Cornell as an academic note-taking method, the cue functions as a memorization and comprehension tool. You should be able to cover up your notes section, and answer any questions you posed to yourself in the cue section. You probably are not going to need to do that with your notes. Depending on what you are taking notes, this section can contain a series of questions, a roundup of notable points, or to get all business-speak, action items. You should be able to throw your entire notes section away and walk out of your meeting, hearing, or lecture with the key ideas intact. If you are the kind of person who likes to distill your oral arguments down to one notecard, this will seem pretty familiar.

The summary at the bottom is exactly what you would expect — a quick summary of the notes on that page. Internet nerds differ on whether you should do that right when you are done taking notes or after you have reviewed them. I tend to summarize right away. Otherwise, that summary section sits alone

How the Cornell Method Works For Me

It is not an exaggeration to say the Cornell Method helps me in every note-taking situation I have in my professional life.

In meetings, I use it to easily call out follow-up items by dumping them in the cue section. This can be anything from a statute I need to look up to a call I need to return. Pulling those to-do items and reminders out of the main text of the notes really highlights them. Every time I fall in love with a new type of notebook that does not have the Cornell margin, I go back to trying to just circle, underline, or highlight my follow up items and two things happen:

  1. My notes look like an utter mess

  2. I can’t easily find the things I want to do just by glancing at the page.

Pulling your next steps/to-dos/action items over into the left-hand column also works well if you like to reduce your notes to an actual to-do list you put on an index card, in a computer file, or a fancy Getting Things Done tickler file. That left-hand column is now functionally your list of next actions. In meeting situations, the summary usually ends up being nothing but the date, time, purpose, and attendees of the meeting. This gives me a way to file my notes easily.

When I am listening to someone else talk for any length of time, whether an opponent in court or speaker at a CLE, being forced to organize my notes Cornell-style on the fly means I am actively engaged. If I do not take handwritten notes, my mind drifts, and suddenly I’ve missed everything. Here, I use the notes section to force me into keeping a cohesive outline, even if the speaker wanders around a bit (as lawyers often do).

Then I use the recall section to break out big-picture points I’m going to address and key questions I’d like to ask. Again, pulling those things out of the notes section cleans up my notes visually, and creates a quick mini-outline that I can refer to quickly.

The arena in which I’ve definitely found the Cornell method most helpful is in organizing my own teaching notes. The notes section covers the main points of my lecture in an outline and forces me to stay on task. The recall section is my dumping ground for everything I can’t deal with in my notes without things getting messy. Questions I plan on asking appear there, linked to whichever part of the lecture they’re related to. Reminders to myself also go there when I’m re-reading notes before getting up to speak. Notes on sources, if I need to mention those, go in the side margin as well.

With that wide Cornell margin, my teaching notes last three or four semesters instead of one. This is because I’m able to use that recall section to highlight key changes I want to make next time I present the material. Finally, the summary functions like the tagging function in Evernote. I have got the week of the semester the lecture occurs, the name of the class, the major topics I’m covering that week, and a page number. This way, when I have shuffled and reshuffled the pages while speaking, I can easily put them back together again when I’m done (or let’s be honest, mid-lecture).

If you are hopelessly disorganized like me, but wish you were an organized person hacking your own tendencies towards chaos, you really can’t go wrong with taking your notes by hand using the Cornell Method to force you into a specific but flexible note-taking framework. All my notes — meeting notes, lecture notes, deposition notes — look and function the same, which means I always know where to put information when I am writing, and I always know how to find information when I’m reviewing later.

The Cornell Method is the only productivity tool that has stuck with me for more than a year, and I am never giving it up.

Originally published 2014-07-18. Last updated 2015-08-14.

  1. I didn’t pursue the Cornell Method as some sort of lifehack or magic productivity enhancer. I stumbled upon it because I wanted some really nice legal pads. Well before law school, I’d developed a completely unnecessary fondness for the Levenger catalog, which carried within its pages nice pens, some lap desks, and some legal pads that cost approximately five times any other legal pad I’d ever seen. The catalog waxed rhapsodically about the weight of the paper and the smooth as silk feel you’d have written on it with your fountain pen, but never explained the weird huge margin at the left-hand side. I figured I’d live with that, and plunked down $25 in 2001 dollars for a five-pack. That large left-hand margin turned out to be my introduction to the Cornell Method, and I have been a devotee and an evangelist ever since. 

Hacking Chaos: The Cornell Method of Note-Taking was originally published on Lawyerist.

Categories: Teknoids Blogs

Proposed New “Uniform Arbitration Act” Bears Careful Study

slaw - Fri, 08/14/2015 - 06:00

The working group on arbitration legislation of the Uniform Law Conference of Canada (ULCC) has circulated a Discussion Paper on proposed changes to the Uniform Arbitration Act (for domestic arbitrations in Canada). The proposals – and the drafting of the Act – have not yet been reviewed or approved by the ULCC. The goal is the present the proposals to the ULCC at its annual meeting this summer.

This is the second phase of a project that started several years ago to update the ULCC’s Uniform International Commercial Arbitration Act and Uniform Arbitration Act, which have been widely implemented by provincial and territorial legislation. Proposed changes to the International Act were approved by the ULCC in 2014. Now the working group is proposing similar changes to the domestic act.

There is a large number of proposed changes in this draft. Some are intended to make domestic arbitration more consistent with international norms and practices. Some clarify the powers of arbitrators to determine their own jurisdiction and control the conduct of the arbitration. Others address specific drafting issues with the previous Uniform Act.

The proposed changes bear careful study and analysis. They could have a profound impact on domestic arbitration in Canada. The efforts of the working group appear to be very thorough and thoughtful. They have also sought input from the legal and arbitrator community on many of the proposed changes. It will be interesting to see what the ULCC does with this first draft.

Here are a few initial thoughts on some of the proposals in this draft.

The most significant changes aim to clarify – and to the extent possible, limit – the situations in which domestic courts may intervene in arbitration proceedings or set aside arbitral awards. This appears to be in response to conflicting case law in many provinces, which has caused uncertainty and encouraged court challenges.

Section 6 – Court Intervention

There have been efforts to limit court intervention in previous versions of the Uniform Act (and in provincial legislation). Nevertheless, courts still seem to intervene whenever they deem it necessary. In response to this, the ULCC previously added wording enumerating the specific purposes for which a court could intervene: to assist the arbitration process, to ensure the arbitration is in accordance with the parties’ agreement, to prevent unfair or unequal treatment or to enforce awards. Some courts interpreted these provisions as giving more discretion to intervene, which was the opposite of what was intended. So the ULCC has now gone back to a very simple and direct statement:

No court may intervene in matters governed by this Act, except as expressly provided by this Act.

Section 7 – Stay of Court Proceedings

The working group says this is one of the most important provisions in the Uniform Act. It sets out an express requirement to stay court proceedings that a party alleges are the subject of an arbitration agreement, with very limited exceptions. Those exceptions are:

  • The court proceeding is not in respect to any matter that is the subject of an arbitration agreement (emphasis added).
  • A party entered into the arbitration agreement under a legal incapacity.
  • The arbitration agreement does not exist or is null and void or unenforceable.
  • The dispute is not capable of being the subject of arbitration on applicable law.

The proposed provisions also clarify that these are questions that may be left to the arbitration tribunal to determine in the first instance.

The working group says this is consistent with the decision of the Supreme Court of Canada in Dell Computer Corp v Union des consommateurs 2007 SCC 34 that, except in very limited circumstances –where it is possible for the court to decide an issue on the basis of documents and pleadings filed by the parties without having to hear evidence or make findings about its relevance and reliability — a court should refer all issues concerning arbitrator jurisdiction, including issues relating to the validity or applicability of the arbitration agreement, to the arbitral tribunal. The working group says these issues are often complex issues of fact, which ought to be determined in the arbitration, rather than in a summary stay proceeding.

Previously, the Uniform Act allowed a court to grant a partial stay, with respect to matters dealt with in an arbitration agreement, and continue the court proceeding with respect to other matters, if it found it “reasonable” to separate the matters. The concern there was that a court might consider it unreasonable to have to parallel proceedings. Parties might wish to avoid that result as well. However, the working group found a consensus that “the risk of multiple proceedings or conflicting decisions should not outweigh the risk that parties wishing to avoid their commitment to arbitrate, or to delay or disrupt arbitral proceedings, might commence an action which includes claims that are both within and without the scope of the arbitration agreement or unnecessarily names persons who are not parties to the arbitration agreement for tactical reasons.” Therefore, the working group has proposed removing those provisions from the new Uniform Act, leaving the obligation to stay and refer to arbitration all matters that are subject to arbitration.

One of the issues that often arises in applications to stay court proceedings is whether the matter is within the scope of the arbitration agreement or not. This may turn on the drafting of the arbitration clause itself. It would be useful to have some guidance, from the ULCC or some other group, on the drafting of arbitration clauses, to assist parties in drafting clauses that minimize the risk of multiplicity of proceedings.

Section 56 – Appeals

The existing Uniform Act allows appeals on questions of law. It also allows appeals on questions of fact or mixed fact and law, if the arbitration agreement expressly allows such appeals. There is a consensus among the members of the working group that appeals on questions of fact or mixed fact and law should not be allowed. The proposed changes to the Uniform Act would prohibit such appeals, even if the parties have expressly agreed to allow them. This section is one of the few provisions that parties cannot contract out of.

The working group says there is no consensus on whether appeals should be allowed at all, even on questions of law. Some believe that one of the main advantages of arbitration is that decisions are final, with no appeals. Appeals just add to the time and cost. As the working group notes in the commentary:

In Sattva Capital [2014] S.C.J. No 53, the process lasted 5 ½ years and advanced the resolution of the dispute no further than to have the highest court in the province pronounce the award to be “absurd” and the highest court in the country pronounce it to be “not unreasonable.” [I have commented on the decision of the BC Court of Appeal in the Sattva case in an earlier column.]

This raises a number of policy issues, including the basic principle of party autonomy. Why shouldn’t parties have a right of appeal, either to a court or to a second arbitral tribunal, and whether it’s a question of law or one of fact, or both, if that’s what they have agreed? Some parties may be reluctant to agree to arbitration in the first place, if they have no recourse if the arbitrator “gets it wrong”. They may be concerned that an arbitrator may make a decision that flies in the face of the evidence, or that the arbitrator may misinterpret the law. An appeal on questions of law is fine, as far as it goes, but pure questions of law may be relatively rare. (On the other hand, it seems that if a court wants to hear an appeal of an arbitration decision, it can find that almost anything is a question of law.)

The draft also leaves open the question of whether parties should be required to opt in or opt out of the any right of appeal. And what wording is sufficient to opt in or opt out? Some courts have found that wording in an arbitration clause which says the arbitrator’s decision is “final and binding” is sufficient to opt out of any right of appeal.

Section 57 – Setting Aside Awards

The proposed Uniform Act significantly overhauls and clarifies the grounds for setting aside an award.

They are:

(a) legal incapacity;

(b) the arbitration agreement does not exist or is null and void or unenforceable;

(c) the award is beyond the scope of the arbitration agreement;

(d) improper composition of the arbitral tribunal;

(e) the dispute is not capable of being the subject of arbitration under applicable law;

(f) the applicant was not given a reasonable opportunity to present its case or to answer the case presented against it by other parties or was not given proper notice of the arbitration or of the appointment of an arbitrator;

(g) justifiable doubt as to the independence or impartiality of the arbitral tribunal [but it is unclear whether the “justifiable doubt” is subjective or objective];

(h) the award was the result of fraud or corruption by a member of the arbitral tribunal or obtained by fraud of a party or its representatives in the conduct of the arbitration [distinguished from fraud with respect to the original dispute being arbitrated].

The wording in (f) tracks the new wording of the proposed section 22 of the Act, which refers to “reasonable opportunity” rather than parties being treated “equally and fairly”. This is a significant change in the standard for arbitration hearings and is intended to give the arbitral tribunal greater power to control the arbitration process, without fear of the award being set aside. Concerns have been voiced that the current wording could open the door to unsuccessful parties claiming they weren’t given an equal opportunity to present evidence as a result of limitations on document disclosure or discovery, time limits at an oral hearing, or other procedural decisions. Now they will have to show that there was no reasonable opportunity to make their case.

Among the grounds that have been removed from the proposed new Uniform Act is the failure to comply with the procedural requirements of the Act. Parties often waive strict compliance with procedural rules during the course of arbitration simply by their conduct of the arbitration. So an application to set aside may come down to whether the procedural rule was waived or not, which involves questions of fact that a court may have difficulty deciding. In any case, the working group determined that unless the failure amounts to a jurisdictional error or denies a party a reasonable opportunity to make its case — which are already separate grounds for setting aside — it should not be grounds to set the award aside.

The working group also looked at the ground of “public policy” (“public order” in Quebec), which is contained in the United Nations Model Law and concluded that it is not necessary to have such a broad general exception in the Uniform Act. The enumerated list above is enough to deal with matters that are of fundamental concern, it concluded.

Section 61 – Limitation Period

The proposed changes include a ten-year limitation period for applications seeking recognition and enforcement of awards. This is longer than the current legislation in some provinces, and longer than the two-year limitation period under the existing Uniform Arbitration Act. But it is consistent with the limitation period under the ULCC’s new Uniform International Arbitration Act. The working group says it is important to ensure that the limitation periods for recognition and enforcement of domestic arbitral awards are no shorter than those for international awards, to avoid any argument that that Canada is in breach of its obligations under the New York Convention.

There are also interesting new provisions on arbitrator independence and impartiality, majority decisions, whether arbitrators may also act as mediators in the same matter, and assessment of arbitration fees.

Section 15 – Independence and Impartiality

The proposed Uniform Act says arbitrators must be independent and impartial, which is not new or controversial.

But the question arises whether the parties may be permitted to waive independence in certain situations. Arguably, the parties should be able to choose anyone they want, as long as there is full disclosure and the arbitrator acts impartially. In some situations, the arbitrator could be a member of a group or organization (e.g. a member of an industry or professional association) and may not be completely independent.

The working group also asks what the appropriate level of disclosure of prior contacts should be. The proposed Uniform Act says the arbitrator must disclose “any circumstances of which the person is aware.” This applies both before appointment and during the proceeding. There is no positive obligation to make any degree of inquiry (for example within a current or former law firm or other organization). The working group concluded that the appropriate degree of inquiry is fact and case specific and says arbitrators should consult the evolving guidelines published by institutions such as the IBA and the Chartered Institute of Arbitrators.

One area that seems to be missing from the Uniform Act – but is covered by some of the conflict guidelines – is a positive obligation on the parties to disclose any relationship between the arbitrator and the parties, related entities or individuals, their counsel, potential witnesses, etc. Such disclosure would seem to be a matter of common sense, to pre-empt to possibility of a later challenge to the arbitrator and avoid wasting time and cost. Perhaps cost sanctions against a party that fails to disclose, for extra time and cost incurred, is sufficient to discourage such behaviour, but it is an issue that does arise and it may be worth including an express obligation to disclose in the Uniform Act.

Section 34 – Mediation

The proposed Uniform Act permits an arbitrator to act as mediator, conciliator, or in a similar capacity, if all parties and the tribunal agree. The working group notes that there is still a wide range of opinion on such a dual role should be permitted or not, or whether it should be encouraged.

The commentary notes that “med-arb” and similar processes are common in non-commercial cases and occasionally in commercial cases in Canada and concludes that mediation should be permitted “on such terms and conditions as the parties and the arbitral tribunal agree.” This flags, without prescribing, the need for agreement on such things as the admissibility of information disclosed in the mediation, the appropriateness of separate caucusing with the parties during mediation, the discretion of the arbitrator to withdraw if he or she believes that impartiality has been compromised and other issues that may arise.

The draft provides that the arbitrator’s participation in the mediation will not constitute grounds to remove the arbitrator or challenge the award if the arbitration continues after or concurrently with mediation. This is to prevent a party from using the unsuccessful mediation as an excuse to derail the arbitration if it doesn’t seem to be going their way.

The draft doesn’t include an express right for the arbitrator to withdraw if they believe they are no longer impartial as a result of the mediation. The working group concluded that this was not necessary, because the obligation of impartiality is set out elsewhere in the Act. It is a mandatory provision that the parties cannot waive. Nevertheless, an arbitrator who agrees to act as mediator may wish to include the right to withdraw as a condition of agreeing to do so.

My own view, having acted as mediator-arbitrator in a number of commercial disputes, is that the med-arb process is more appropriate for commercial cases than the working group seems to think. While it may be advisable to have separate mediation and arbitration processes in very large commercial disputes, in many cases t can be more cost-effective to have a single neutral act in both roles. But it is also true that the parties and the neutral must have a clear agreement on the ground rules for the mediation in order to avoid compromising the impartiality of the arbitrator and the enforceability of the award if there is no settlement.

Section 44 – Majority Decision

The proposed wording says that if there is more than one arbitrator, the decision shall be made by a majority of the tribunal. However, it has dropped the provision in the current Uniform Act that, if there is no majority, the decision of the chair shall govern.

The commentary says: “the Working Group considers that this is an issue to be addressed by agreement of the parties rather than by way of a default statutory provision… “ However, there may be situations where the parties do not agree. In those cases, there should be some default provision. Decisions with no majority are presumably very rare. Parties would not likely turn their minds to this possibility in advance of the arbitration; it would be difficult or impossible to get any agreement after the fact, if it does happen. The parties may then be left with uncertain award — or no enforceable award at all.

Section 51 – Costs

The ULCC is recommending that the tribunal have the power to award “actual, reasonable” legal fees and disbursements and not be limited to the kind of tariff normally applied by the courts. The tribunal can also award recovery of expert witness fees and arbitration fees and expenses. The provision in the existing Uniform Act allowing arbitrators to refer costs questions to a court taxing officer has been removed. The ULCC believes the tribunal is in a better position to determine whether costs are reasonable and who should pay.

Categories: Teknoids Blogs

Embracing the Beta

3 Geeks and a Law Blog - Thu, 08/13/2015 - 18:00


Good enough.
Two words that are anathema to law firms.  After all, we produce perfect legal product. (cough, cough) We strive to eliminate risk for our clients, and especially for our firm, and as such, 'good enough' Is. Never. Good. Enough.  
I can't and would never comment on whether a contract or agreement should be considered 'good enough'. I would assume that no firm would ever accept, "Meh, it's good enough", when it comes to their legal product. But traditional legal products like contracts and agreements are, by their very nature, finished products.  They are essentially static and unchanged until they expire or are actively and deliberately supplanted by new contracts or new agreements.  That means that there is tremendous risk to the client and to the firm in not getting it 'perfect' at the time of delivery.
The problem comes when legal products leave the world of static documents behind and enter the world of software.  No software company in the history of the world has ever delivered a perfect product out of the gate.  They plan for bug fixes and schedule for upgrades.  Those of us in Legal IT are very familiar with Patch Tuesday. If you use an iProduct, you know that little red circle with a 1 above the settings icon that has been blinking at you for three months...? Yeah that one... that means you need to update your device ASAP. This is a way of life in the software world, users may be annoyed by it, but they expect it and most understand that these updates are meant to improve the user experience, or security, or give them additional functionality.  In fact a 'perfect' software that never updated would be highly suspect and most people would assume that it was derelict and no longer supported.
So how do we reconcile the traditional 'strive for perfection up front' approach to legal products with the reality of the software world?  We must embrace the beta.
Beta is the designation given to software which is still in development, but already deployed to at least a small community of end users.  Generally beta software is considered not yet ready for prime time, but still usable.  Google, one of the most innovative companies in the world, has taken the beta concept to new heights. Gmail was in beta for five years from 2004 to 2009.  By 2009, everyone's grandmother had a beta Gmail account.  
Google isn't charging for most of their products, so it's easy for them to get away with the prolonged beta.  I'm not suggesting that we do the same, but I do think we need to learn to deliver admittedly imperfect software products, and systematically upgrade and improve those products over time.
Now, to be clear, I am not talking about compromising on the quality of legal output.  If you create a tool that outputs a standard contract for a client with your firm's logo on top, it had better be a solid contract.  There is no compromise on that.  However, in most cases, the actual legal part of these types of tools is relatively minor and it's the extraneous crap that holds up deployment.
If we can deliver a product with somewhat complicated navigation features next week, and it's going to take 2 months to put a better navigation function in place, deliver the complicated navigation next week.  Explain to the client that this is a work in progress.  Show them screen shots of what is coming in the near future and give them a rough timeline.  Most importantly express how much you value their feedback, and appreciate their support during this beta development period.  And let them know that they are getting a deal on the pricing by participating in the beta.  Other clients coming later will pay the full price.
This is not rocket science.  This is software sales 101.  
With traditional legal documents, we do the legal work and hand them off to trained document specialists to format to the firms standard.  Unfortunately, we don't have that luxury when it comes to legal software.  When you've contracted development, or cobbled together multiple SaaS tools to create a new product, there is no specialist to hand it off to to make it conform to a firm standard.  There may not even be a firm standard to cover every new mechanism you've created, which means someone needs to make up the standard as you go.  
By embracing the beta, we can deliver functionality to clients as quickly as possible, and focus on continually upgrading and improving their experience over time.  I don't know for sure, but if I was a client of a law firm, that's what I would want.  And if the product provided the functionality that made my working life a little bit easier, I'd probably be willing to jump through a few hoops or look past the occasional formatting snafu, to get the product on my desk more quickly.  
That's what software companies do by necessity.  And like it or not, law firms are, or soon will be, software companies.
Categories: Teknoids Blogs

My Twitter Digest for 08/12/2015

<CONTENT /> v.5 - Thu, 08/13/2015 - 14:30
Categories: Teknoids Blogs

Due Diligence Required When Using Exemptions to Disclose Personal Information Without Consent

slaw - Thu, 08/13/2015 - 08:00

Organizations may only disclose a person’s confidential information without the person’s knowledge or consent in very specific circumstances, set out in paragraph 7(3)(h.2) of the Personal Information Protection and Electronic Documents Act (PIPEDA). Now, the Office of the Privacy Commissioner of Canada recently found that in order to properly rely on the s.7(3)(h.2) exemption it is essential that an organization document the purpose for which personal information is disclosed and exercise due diligence to ensure that the disclosure is reasonable under the circumstances.

The law in question

Section 7(3)(h.2) of PIPEDA states:

7. (3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is,

(h.2.) made by an investigative body and the disclosure is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province; or (i) required by law.

Section 4.3 of Schedule 1 of PIPEDA states that the knowledge and consent of an individual are required for the collection, use, or disclosure of personal information except where inappropriate.

Facts of the case

This case involves a complaint by a customer that his bank disclosed his personal financial information without his consent to his employer, which was another financial institution. The complaint alleges that the disclosure occurred without due diligence and oversight, and for purposes that were inappropriate in the circumstances. The complainant alleges that the disclosure by his bank ultimately resulted in his dismissal from employment.

The employer argued that it dismissed the employee because he had been in receipt of commissions from a third-party financial services organization. In the employer’s view, this contravened the terms and conditions attached to his employment.

The bank that disclosed the customer’s personal financial information declared that it did so in the context of an ongoing investigation into a breach of an employment contract and violation of a code of conduct involving the complainant. Therefore, the s. 7(3)(h.2.) exemption applied.

In addition, the personal financial information was given to the Canadian Bankers Association’s Bank Crime Prevention and Investigation Office (BCPIO), which is designated as an investigative body under PIPEDA. Furthermore, the disclosure proceeded according to set BCPIO procedures.

BCPIO procedures allow designated employees of BCPIO member organizations to collect, use and disclose personal information in the prevention and investigation of criminal and dishonest activity, including the breach of an employment agreement.

In the bank’s opinion, the disclosure was justified and reasonable.

The request to provide the information came by email from an individual claiming to be an investigator from the BCPIO. The personal financial information disclosed was sent by email and included transaction dates, amounts and the payor between the third-party financial services organization and the complainant—exactly what the employer was trying to find out.

Investigation by OPC

The Privacy Commissioner’s investigation found that the email exchanges between the bank and the BCPIO did not identify the complainant or the accounts for which financial information was being requested. The requesting email to the bank did not include a description or summary of the employer’s investigation in support of the request for information. According to the bank, that information was communicated between the bank and the employer by telephone only.

A bank disclosing an individual’s information must file a disclosure form with the BCPIO within seven business days. However, the BCPIO disclosure form contains minimal information on the reasons for such disclosure.

The OPC concluded:

“Our overall view is that an entity designated as an ‘investigative body’ pursuant to the Regulations is not given carte blanche to collect, use or disclose personal information without the knowledge and consent of the individual concerned simply because the entity has been so designated.”

All the bank could conclude is that the BCPIO was a designated body requesting information in an ongoing investigation of a contract of employment breach thus applying the exemption. However, the bank provided the personal information without conducting a proper assessment of whether it was permitted to do so without knowledge and consent in this particular case.

Findings by OPC

In short, the commissioner’s office found that the bank properly invoked the PIPEDA exemption: the BCPIO is a designated investigative body and the reason for the disclosure was legitimate. As a result, the commissioner found the complaint to not well-founded. However, the commissioner’s office also found the bank failed to provide any direct evidence to show what it had done to establish that the request for this highly sensitive personal information was reasonable or necessary.

The bank did not do its due diligence by properly documenting the purposes for which the information was disclosed, and failed to undertake demonstrable steps to ensure the disclosure was reasonable. The bank simply took the employer’s and the BCPIO investigation officer’s words for it when they requested the information.

In the OPC’s view, an investigative body and the organization being approached to disclose information cannot simply invoke the exemption found under section 7(3)(h.2) of PIPEDA without exercising the proper due diligence to ensure that the disclosure request is reasonable and justifiable by proper documentation.

The OPC made two recommendations to the BCPIO:

  • That the BCPIO review its procedures to clarify disclosure requests and the use of the exemption found under section 7(3)(h.2) of PIPEDA
  • That the organization communicate to and train its members on these updated procedures

The OPC was satisfied that the bank’s response to the recommendations would effectively and appropriately address the bank’s procedures for documenting disclosures made under paragraph 7(3)(h.2) of PIPEDA.

Important changes

In June 2015, the Digital Privacy Act (Senate Bill S-4) amended PIPEDA and the specific exemption in s.7(3)(h.2) was repealed and replaced by a significantly broader exemption that states:

7 (3) For the purpose of clause 4.3 of Schedule 1…an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is:

(d.1) made to another organization and is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed, and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation;

(d.2) made to another organization and is reasonable for the purposes of detecting or suppressing fraud or of preventing fraud that is likely to be committed, and it is reasonable to expect that the disclosure with the knowledge or consent of the individual would compromise the ability to prevent, detect or suppress the fraud;

Without the mention of designated investigative bodies, organizations may face requests for personal information without the subject’s knowledge or consent from any organization conducting an investigation into wrongdoing as defined in the amended Act.

These amendments make the privacy commissioner’s ruling even more important. Organizations that receive requests to disclose personal information without a subject’s knowledge or consent—even within the letter of the law—must take extra special care to do their due diligence. That means ensuring that the organization requesting the personal information has a legitimate reason for the request and keeping detailed records of the process.

Categories: Teknoids Blogs

How To Prepare for a CLE Presentation

The Lawyerist - Thu, 08/13/2015 - 06:11

If you have been to more than one or two CLEs, you know that very few lawyers are great at public speaking.

I have given dozens of CLEs and presentations as a lawyer — over 1,000. I have given presentations I thought were great, and I have given presentations that bombed from the start. These are my tips for giving a presentation people remember for its positive qualities.

Pick a Unique Topic

An audience is more likely to show up and be enthused about attending your CLE if it isn’t a mundane topic. A unique topic produces an audience. If you are going to give a CLE, you want people to show up.

An overdone topic would be, “Hot Trends in Personal Injury Law.” This CLE sounds enticing, but it is not specific. A better choice would be, “Three New Areas of Personal Injury Law That Every Tort Lawyer Will Know In 5 Years.”

Instead of a “Beginner’s Guide to Writing a Will,” try something catchier like “Want a Good Will?  Here’s the 10 Point Checklist that Every Estate Planning Lawyer Uses.”

Prepare Your Presentation Materials Your content should be direct, easy to follow, and current.

Hand in any written materials well in advance. This will give the CLE host time to submit your materials for accreditation before giving the presentation. This is especially important in the states where certain topics like ethics or elimination-of-bias credits are necessary. More lawyers will attend a presentation when the credit is already proved.

Your content should be direct, easy to follow, and current. Highlight key cases or recently enacted statutes so even veterans in the field will note something new. Write for people who do not know everything about your area of the law. In most CLEs, you will have audience members who do not know much about your topic. Make sure every acronym is spelled out and every key case is briefly explained. You want to keep all listeners tuned into your speech.

Create a Resource List If you can turn your presentation into a short manual, people will keep it, which could help create possible referrals in the future.

It is always good to have a purpose to your materials. Ideally, you will cite all the key cases in your practice area and address topics that are peripheral but interesting. If there is a law review article or a book that is helpful, cite it as well. If you can turn your presentation into a short manual, attendees will keep it, which could help create possible referrals in the future.

Advertise Your Speech

Related “12 Terrible CLE Attendees”

Post on LinkedIn about your upcoming presentation. Mention it on Facebook and Twitter. Tell people you work with and email others in your field. If you are going to present at a CLE, do what you can to make sure lawyers attend.

To Use, or Not Use, a Slideshow

Attendees almost expect a slideshow when they attend a CLE. Without it, they may think you forgot or were just too lazy to put one together. Nonetheless, you will find endless advice on the Internet on whether slideshows are the best or worst tool ever conceived for speeches.

If you decide to include a slideshow, use it as a guidepost. Like a river tour of Chicago architecture or a trip around Hollywood Celebrity homes, use the slides as the starting point for a conversation. This will help frame your topic and remind people where you are.

Make sure you also have redundancies of your file. If you have emailed the speech to the CLE host, assume they will lose it. Bring your laptop with the files you need on it. I have been to a few speeches where I was assured all I had to do was show up, but nothing was ready.

Practice Your Speech

Should you write out your speech entirely in advance?

No, because then you are more likely to just read it.

Should you memorize your speech?

No, because then you will spend most of your energy reciting instead of connecting with your audience.

Should you practice your speech?

Absolutely. Every time you create or revise your presentation, you should practice. You should know if parts of your presentation do not flow long before you are in front of an audience. You should work on what to say, how you want to say it, and what to leave out. But the most important thing for you to focus on is pacing. You need to know how long your presentation will go without an audience. With an audience, your presentation will likely go faster (because you will talk more rapidly) or go slower (if there is a lively discussion).

I like to plan my presentations in ten-minute blocks. I plan out an hour, for instance, and break it into six blocks. If I am near the end of my first planned block and there are three minutes remaining, I will tell a story that I was not sure I would have time for. If you fill time using ten-minute increments, it will be much less noticeable than filling fifteen minutes at the end of the hour.

Preparing Yourself for the Speech If the presentation is not the most important event in your day, you are doing it wrong.

How many times have you seen a presentation, whether it was a CLE or some other event, and you could tell that the speaker did not want to be there, was not prepared to be there, or had no idea what they were in for when they agreed to be there?

To adequately prepare for a presentation, you need to prioritize that event. If the presentation is not the most significant event in your day, you are doing it wrong. Here’s why:

I once gave a five-hour presentation analyzing a lease. One lease, line-by-line. The host asked me to do it, and I decided to try, knowing full well that the task was daunting. The audience was 120 landlords that are not exactly on my side as a tenant attorney. This presentation wasn’t just the most important event in my day; it was the most important event in my week — maybe even my month. 120 people were paying to listen to me talk for five hours. I handled 600 hours of that room’s time. Even if it is only thirty people for an hour, that still means that you are dictating what will happen for thirty hours belonging to the group. You owe your audience, at a minimum, preparation and quality effort.

Prepare Your Body

I firmly believe that your body will help you get amped up for your presentation. I think I’ve only canceled once because of illness. But I’ve been sick the day after presenting dozens of times.

Here’s a couple basic physical tips to get ready to present at a CLE:

  • Get enough sleep. We will assume that you have composed an excellent presentation and practiced it to the point that you know how long it will take. None of this will matter if you show up with two hours sleep when you normally get seven. Everybody uses different techniques to ensure they get a good night’s sleep, but do everything you can to be well-rested when you show up.

  • Eat right. I’m not going to tell you what to eat on the day of your presentation, or even the day before (I actually plan out my eating schedule for several days prior to a speech). But I will tell you what not to eat: something new. The day you present is not the time to find a new Internet recipe for a kale/calamari/pomegranate omelet that you’ve heard about. Only eat food your body is familiar with before presenting. The day of a speech is not the right time to start a new weight-loss diet. You want familiarity.

  • Wear something you have worn before. I think it is great if you want to get new clothes before you give a presentation, but you should wear the new outfit prior to presenting, so it feels comfortable and familiar. Shoes are a different matter. New shoes can take some real time to feel right. Try not to use this occasion as a good excuse to break in uncomfortable new footwear.

Right Before the Speech

Okay, so you have written and practiced a quality presentation. You aren’t wearing brand new shoes. Here is a quick checklist of what you need to cover the day you present, but before you actually start talking.

Know the Room

Some people will advise that you see a room the day before (or even earlier) to get a feel for how your presentation will work. If possible, that makes sense. But at least arrive early enough to spend a few minutes before you talk looking around the room. I always like to see the views (especially of the screen if there is a PowerPoint) from multiple seats.

Double-Check the Tech

Make sure the technology you are planning on using is functional. You shouldn’t do this during your speech. Check the tech before you are introduced. This is always easiest if you are the first (or only) speaker.

Know the Audience

If possible, look at the list of attendees before you go on stage. You may know someone in the audience who has insight into one aspect of your presentation. Talk to them before presenting to make sure it is alright to single them out for a question. I have had opposing counsel show up to a CLE I was presenting at. I did not change my content; I was just aware that they were there and “braced for impact.”

Bring Water

Never assume the CLE host will provide water or other beverages during your presentation. You need to have this in case your throat seizes up. I like to take a drink while listening to a question. This gives you an extra second or two to think through an answer before you speak.

Ramping up to the Presentation

If you ever turn on a big game before tip-off or kick-off, you will see footage of the locker room where the athletes either have headphones on and are isolated, or you will see the entire team working themselves up in a team huddle. In both cases, they are trying to get themselves ready for the event. Preparing to present at a CLE should be no different. You could attempt to have a team of people dance around in a huddle with you, but if that doesn’t work, I’ve known speakers who listen to loud music on headphones right before they start. Personally, I let my mind drift. I may be looking at the floor, but I am not focusing on anything. I manage to tune out the world briefly. Lots of people have different traditions they use to prepare. You need to figure out your own way to get excited about presenting.

Everything covered in this article should tell what to do in preparation for a presentation at a CLE. Next week, we will focus on best practices for delivering your presentation at a CLE.

Featured image: “business woman speaking at conference” from Shutterstock.

How To Prepare for a CLE Presentation was originally published on Lawyerist.

Categories: Teknoids Blogs

Flexibility Isn’t Just for the Yoga Mat – Try It on Your Schedule

slaw - Thu, 08/13/2015 - 06:00

I will forever be indebted to the young mother, a senior associate at a big firm, who shared with me one of her secret recipes for handling the challenging tension between mom-time and lawyer time: the early escape.

Here’s how it works: One night a week she stays late at the office, until between eight and ten at night, depending on the week. Then, two days later, she leaves the office in the afternoon to pick her kids up early from daycare for some special time with them.

This wonderful “life hack” checks two important boxes for her. She checks her productivity box by getting gets a nice uninterrupted period of time each week to push through a whole lot of work. She also checks her mommy box with this dose of fun unstructured time with her kids.

Once you put in your time and rise in the ranks in a law firm, these opportunities for flex time open up, if you are willing to take advantage of them. The twin bottom lines in private practice – service to clients and the billable hour – can both be well served within a flexible schedule.

It turns out this strategy is also frequently employed by professionals in other sectors. New York Times journalist Neil Irwin reports on this trend in his article: “How Some Men Fake an 80-Hour Workweek, and Why It Matters” citing the research conducted by Erin Reid, a professor at Boston University’s Questrom School of Business. Reid conducted a study of more than 100 professionals at an elite consulting firm.

“Some 31 percent of the men and 11 percent of the women whose records Ms. Reid examined managed to achieve the benefits of a more moderate work schedule without explicitly asking for it.

They made an effort to line up clients who were local, reducing the need for travel. When they skipped work to spend time with their children or spouse, they didn’t call attention to it. One team on which several members had small children agreed among themselves to cover for one another so that everyone could have more flexible hours.”

Our devices allow us to be connected to the office day and night. For many this on-line connectivity functions as a ball and chain that means we are never truly off work. By setting boundaries though, and using these devices to their full advantage, you can get out of the office and onto the soccer field when you need to. There are many ways to be out of the office and in a meeting. It might be a meeting with clients, or at your child’s school. In the case of one very in-demand associate I know it meant he was at the gym.

There are still those old school lawyers – dare I say dinosaurs – who insist that what really counts is time at your desk. They want to see you in at the office in the early morning and still there past the supper hour. I say what really counts is the quality of your work, your relationship with your clients, and how you manage your practice. All three of these get the most optimal results when you are well rested, energized, and in a positive state of mind.

Coach says: Have a look at your workweek and see where you can introduce some flexibility into the mix. Experiment with mixing up your working hours and see what kind of an impact that has for you overall. And women take note! The research shows that your male colleagues are taking advantage of this more than you are. I especially urge you to get out of the office early some days this summer. Give it a try – you just might like the results.

Categories: Teknoids Blogs

Nontraditional Stakeholders in the Law Department/Firm Relationship

3 Geeks and a Law Blog - Thu, 08/13/2015 - 05:08
I’ve been discussing structured dialogue between law departments and law firms focused on continuous improvement in the use of process and technology to deliver legal services. A point I have yet to make, however, is the importance of nontraditional stakeholders to the success of such initiatives. By nontraditional stakeholders, I mean anyone other than the law department’s managing counsel and the law firm’s relationship partner. Typically, those two roles are filled by subject-matter experts. This is as it should be. But their focused expertise and elevated positions often remove them from the more routine, laborious efforts that are most amenable to process improvement and innovation. There is no reason to automatically assume that they are multi-talented (though many are) and their expertise extends beyond their domain. Allied professionals are vital to proper client representation. Who should talk to whom really depends on the situation. Because of my personal background, my instinctive response includes the head of law department operations talking to the law firm CIO, and the head of legal sourcing talking to the law firm pricing director. Additional pairings might include frontline lawyers, paralegals, paratechnicals, project managers, or IT staff from the respective parties. For example, in the exemplar findings I posted, I recommend that the project managers from the client and law firm discuss ways to harmonize the respective workflows and better share KPI’s. But it is important to get beyond the notion that the law firm and law department should mirror each other and dialogue must occur between direct peers. BigLaw may service lean law departments, and mammoth law departments may rely on boutique law firms. The fundamental question are, “What are the objectives?” and “Who are the subject-matter experts with respect to the objectives?” For example, an in-house counsel may be concerned with the high percentage of a firm’s bills allocated to research costs. While the in-house counsel recognizes that the case types the firm handles demand some research (simply prohibiting research costs is not a viable option), her impressionistic sense is that the associates spend far too much time reinventing the wheel. Tired of cutting information-poor invoices by arbitrary amounts, she initiates a Service Delivery Review. The SDR demonstrates to her that (a) the bespoke research her cases require is more substantial than she believed, but, still, (b) the practice group handling her work does not take advantage of the firm’s knowledge management offerings, and (c) the associates staffed on her matters do not rely on the firm’s research services because her predecessor refused to pay for them. The in-house counsel will reverse the policy on paying for research services and look at research-related time entries with a less jaundiced eye if the firm demonstrates progress on reducing research costs. Besides the relationship partner and her associates, nontraditional stakeholders from the law firm who may participate in the conversation include:
  • Library & Research Services to discuss how research specialist can be integrated into the workflow.
  • Knowledge Management to discuss the tools and methodologies available to reduce repeat investigations of the same issue.
  • Project Management to discuss how the initiative to reduce research costs can be tracked and measured.
  • Pricing to discuss alternative ways to budget for research and share the risks of wheel reinvention and goldplating.
  • Workflow to discuss how to ensure that the right people are doing the right work.
  • Client Development to understand what the client is asking of the firm, to act as the client’s internal advocate, and to ensure the initiative is proceeding according to the client’s expectations.

The ultimate objective in the above scenario is to improve client satisfaction by generating higher quality research in less time and at lower cost. The firm would be rewarded with higher realizations/profit and goodwill, which means a better working relationship and, possibly, additional work in the future.

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Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that facilitates deeper supplier relationships by facilitating structured dialogue between law firms and clients. Given the current market realities, there is plenty of room for clients to get higher quality work at lower cost while law firms increase profits via improved realizations. The premise of the Service Delivery Review is that with people and pricing in place, rigorous collaboration on process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. The problem is that traditional technology training methods are terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results. Connect with Casey on LinkedIn or follow him Twitter (@DCaseyF).
Categories: Teknoids Blogs

WestJet Pilots Vote Against Unionization Under New Canada Labour Code Provisions

slaw - Thu, 08/13/2015 - 04:00

WestJet’s pilots have voted against unionization following a narrow result released by the WestJet Professional Pilots Association (the “Association”) last week. Out of the nearly 1,300 pilots, 55% percent of those who voted were not in favour of forming a union. These results come following an extensive campaign by the Association, who vocalized their disappointment with the result through the release on their Facebook page.
The Association in the release stated that “[w]e hope that the open discussions that have taken place as part of this process will set the stage for constructive dialogue between our pilots and the WestJet leadership going forward”.

WestJet CEO Gregg Saretsky has expressed his pleasure with the pilots’ decision not to unionize, stating that “[o]ur model of cooperation and employee representation through the WestJets’ Pilots Association has allowed for the continued successful of our pilots and our airline.” Mr. Saretsky went on to emphasize that although that he hoped that the airline can still move forward with the pilots to understand the issues raised during the campaign and work to resolve them.

Prior to June 16, 2015, votes were generally not required in federally regulated union drives. This one of the first major votes under the amended Canada Labour Code.

Voting to unionize? Good or bad?

Categories: Teknoids Blogs