My Twitter Digest for 08/14/2014

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Categories: Teknoids Blogs

The Myth of More Time for Billing

The Lawyerist - Fri, 08/15/2014 - 06:12

As a lawyer, time is your most-valuable asset whether you spend it billing time or completing flat-fee tasks. So it makes sense to free up as much of your time for doing more billing, right?

Well, it depends.

Freeing Up Time

The usual way to “free up” time is to hire someone. At some point, every lawyer starts to feel swamped, which leads them to consider hiring someone to free up time for lawyering so they can bring in more money, which will more than cover the employee’s or independent contractor’s paycheck.

Except it does not usually work out that way. Hiring your first employee or independent contractor actually creates a third new position in your firm: manager. What really happens when you hire an assistant or junior associate is that you spend your freed-up on management, not billable lawyering. And since you now have an extra paycheck to write, you will also have to do more marketing to bring in more business that will increase your revenue so you can write those paychecks every month.

You may also free up some time for lawyering, but almost certainly not as much as you hoped. Especially if you are new at managing staff, it takes a while to get the hang of it. Expect your profits to drop until you figure out how to manage your staff effectively and efficiently (something many lawyers never do figure out), bring in more business, and do more billable lawyering.

Instead of hiring staff to free up time, most solos are better off staying solo, raising rates, and selecting better clients. Hire someone when you can afford it on your existing revenue, not when your calculations require you to free up time for billing.

Another common way to “free up” time is to adopt a particular technology. While going paperless or adopting practice management software can definitely free up some time, they generally don’t make a huge difference. You should absolutely go paperless and make sure you are on top of your clients and matters, but don’t expect to free up hours a day. An hour a week would be pretty amazing. You will probably realize more revenue from the money saved on office supplies and copying costs than on new billable time.

The Productivity Limit

Theoretically, let’s say you freed up all your time for lawyering. How much of that time could you realistically spend doing billable legal work, on average?

No matter how many hours are technically available for lawyering, few people could actually use all of them. NALP’s most-recent information on billable hours shows the average billable hours hovers around 1,800 per year, or about 7.2 hours per workday, if you work five days a week and take two weeks off. The total hours worked counting non-billable time is about 2,000, or as you might expect, about eight hours per day. So it seems reasonable to peg your theoretical maximum productivity at about seven or eight hours a day. Sure, you may hang around the office for longer, but you probably aren’t getting any actual work done in that time.

If you are already averaging seven hours of billable work in a day, you cannot realistically expect to gain much more time no matter what you do. Before you use more time for billing as an excuse to hire someone or buy something, consider whether you would actually be able to make good use of that time.

Instead, focus on eliminating waste in the practice you have, raise your rates if you can, and focus on your most-profitable clients.

Featured image: “close up of man hand holding hourglass” from Shutterstock.

Categories: Teknoids Blogs

Become a “Mediation Freak”: Understanding the Role of Incentives in Mediation

slaw - Fri, 08/15/2014 - 06:00

In their recently published book Think Like a Freak, Freakonomics authors Steven Levitt and Stephen Dubner offer a simple set of rules to explain the role of incentives in many forms of financial and non-financial interactions.

  1. Figure out what people really care about, not what they say they care about.
  2. Incentivize them on the dimensions that are valuable to them but cheap for you to provide.
  3. Pay attention to how people respond; if their response surprises you or frustrates you, learn from it and try something different.
  4. Whenever possible, create incentives that switch the frame from adversarial to cooperative.
  5. Never, ever think that people will do something just because it is the “right” thing to do.
  6. Know that some people will do everything they can to game the system, finding ways to win that you never could have imagined.

I love Freakonomics and listen regularly to their podcasts. Reading this new book – there is a whole chapter on the role of incentives and their often unintended consequences – got me thinking about how these simple rules provide a particularly insightful way to think about mediation.

All of the actors in a mediation – the parties as well as their counsel and other advisors – are responding to particular known and unknown incentives. One of the mediators’ most important roles is to help the participants discover or better understand those incentives and how to respond to them.

Don’t forget the mediator has incentives, too!

Parties and mediators should think carefully about their incentives, and those of the other participants, both before and during the mediation. And if the mediation doesn’t immediately lead to settlement, think about these rules and reconsider the incentives.

Figure Out What People Really Care About

A couple years ago, Freakonomics ran an episode (available on their podcast) about how much people lie to pollsters, and themselves, about their future intentions – everything from voting, to quitting smoking, to saving the planet.

When questioned about positions, beliefs, or intentions, people will often tell the interviewer what they think he or she wants to hear. Or they will give a socially-acceptable answer. The same is true in a dispute.

You often hear: “It’s a matter of principle.” What they really mean is: “I just want to make that SOB suffer.”

Parties often have undisclosed interests and incentives in a dispute. At times, they may not even recognize those interests and incentives themselves.

While there may be strong financial incentives to settle a dispute, there may be stronger emotional or psychological incentives to keep fighting. A party (or their counsel) may not want to appear weak in even agreeing to discuss settlement. Or they may be looking for a way to save face, rather than admit making a mistake.

What people say is often at odds with what they do. To better understand interests and incentives, examine their actions and responses to questions or suggestions.

Think About the Relative Value of Incentives

This is one of the fundamental rules of the “win-win” approach in classic texts such as Getting to Yes. Take the example of the cooks arguing over a crate of lemons. One wants the juice for a salad dressing; the other needs rind for baking. Each can have what she wants at no cost to the other.

Life is never that easy, but it is true that parties to a dispute generally value incentives differently. The challenge is to discover and take advantage of those differences – a kind of “settlement arbitrage”.

The mediator’s method is to ask questions, probe for each party’s interests and explore options. What do the parties really value, and why?

Learn from People’s Responses

The only way to learn whether particular incentives have value is to ask questions and make offers. Watch how opposing parties react to those offers.

Are they angry? Insulted? Surprised? Interested?

More importantly, why did they react as they did? If you are you surprised by that reaction, perhaps you don’t fully understand the incentives that have been offered.

Something that one party believes is a strong incentive (from their own perspective) may have little or no appeal to the other party. Even worse, it may be seen as a disincentive to settlement.

Switch the Frame from Adversarial to Cooperative

This, too, is the holy grail of dispute resolution, particularly mediation. Like the other rules, it is usually easier said than done. There is a psychological tendency to demonize the other party to a dispute; to attribute evil intentions where none exist.

For many people – organizations, too – it takes a great deal of psychic energy to engage in a dispute. There must be a strong incentive. So there must be an even stronger incentive to back off and be willing to cooperate in pursuit of a resolution.

Don’t Assume People Will Do the Right Thing

There are many studies that show that “doing the right thing” is a very weak incentive compared to such things as personal benefit, social stigma, or peer pressure.

I recall an earlier Freakonomics story, where an energy conservation program looked at homeowners’ responses to various incentive campaigns. A brochure that talked about how saving energy was good for the environment had almost no effect. One that said how much money a homeowner could save was much more effective. But so was one that showed how much the homeowner was saving compared to their neighbors. I suppose it’s some kind of reverse “keeping up with the Joneses.”

Another Freakonomics podcast explored how peer pressure – and good, old-fashioned shame – can push people to do the right thing. But so can offering them the right incentives, whether financial, social or psychological.

Expect People to Try to “Game The System”

The rule says “some people”, but I think it’s safe to assume everyone does this.

Consider the story of co-author Steven Levitt’s three-year-old daughter. The offer of a candy reward was a perfect incentive for potty training – for a few days, until she learned to “game the system” by heading to the toilet several times an hour. Lessons learned: everyone responds to incentives and everyone quickly figures out how to use them to their advantage.

In another example, when Mexico City imposed traffic restrictions which prohibited driving on specific days, according to the car’s license plate number, a World Bank study showed that those who could afford it went out and bought a second car which enabled them to drive on the remaining days. The result was an increase in total driving and, because the second cars tended to be older and less fuel efficient, an increase in the city’s air pollution.

Those involved in resolving disputes – or designing dispute resolution systems – also need to be aware of potential ways parties can game the system to try to gain an advantage. Look for hidden incentives to act a particular way.

For more Freakonomics, go to their excellent website for blogs, podcasts, and links to interesting stories.

Categories: Teknoids Blogs

The Friday Fillip: Chagrin De Merci

slaw - Fri, 08/15/2014 - 06:00

In the words of songwriter Charles Dumont, “Non, je ne regrette rien!” I tend to think that lamentation makes an unlovely sound and is largely a waste of time and effort. Except that I caught myself today indulging in a regret. I heard a replay of Michael Enright interviewing Jesse Winchester, a singer who died in April. Now I really like Jesse Winchester’s songs and really, really liked his performance of them. My regret? That I never wrote to tell him how much pleasure his work gave me.

Would he have cared? I suspect so. In the interview he confessed that bad reviews depressed him and good ones buoyed him up. And besides, even celebrities have human nature, which, I’ve found, is fundamentally appreciative of genuine praise.

I’m a serial “failer” where notes of this sort are concerned. Often, finishing a good book, I want to turn to the author and say how much I enjoyed it. The feeling is even stronger if the author has written a string of good books. But time and again I fail to take pen in hand. Way back at the beginning I should have written Nicholas Freeling and Rex Stout, whose well-written crime novels pleased me no end. And then there’s Stanley Kubrick and Hayao Miyazaki, two people who did things with film that amaze and delight me. The list goes on and on.

Why have I not thanked these people? A kind of social reticence — shyness, I suppose — explains some of it. Laziness certainly plays a role. But I wonder if there isn’t another element as well, having to do with the need to keep art and artists separate from us normal folk. We see this most dramatically and often foolishly in celebrity. But we also see it, I suspect, in the power that theatre — a peopled stage — has to cause a rupture in reality, commonly described as the willing suspension of disbelief. We love to be fooled in this way, to be transported by the magic in the arts, and to avoid “breaking the fourth wall,” as Brecht wished to do, by having social congress with the artists. It’s not necessary for artists — actors in this case — to be elevated into a starry celebrity; they can be pushed away by demoting them to a lesser status than that enjoyed by the critic, as was done for much of the life of theatre in the west. Up or down, there’s a separation. And I think the need — perhaps unique to me — for that lack of ordinary connection has a bit to do with why I fail to write letters of appreciation.

Categories: Teknoids Blogs

Language of Law

slaw - Thu, 08/14/2014 - 20:23

Earlier this week I participated in a bilingual (French–English) conference. Of course, not all participants and presenters were bilingual, so simultaneous interpretation services were offered.

I’m always impressed with simultaneous interpretation. I think it’s a real feat to be able to listen in one language and process the information quickly enough to speak words of the same meaning in another language, while continuing to listen, continuing to process, and continuing to speak. I’m imagining reading a case while dictating a memo while running on a treadmill.

So simultaneous interpretation is wonderful and impressive. What also struck me, though, is that the interpreters at this event had to be able to do this while also choosing the correct word or expression in a technical subject area: To an extent, the lexicon of law is a third language to add to the task. So, while on the treadmill, the interpreters are also following a closed-captioned episode of Law & Order.

When I was pondering this yesterday, an inquiry about bilingual legal glossaries serendipitously showed up in my stream. The discussion resulted in a collaboratively sourced little list of online French–English bilingual legal glossaries or translation sites. I’ve checked them all out and, while they don’t move me to attempt simultaneous interpretation, they are all unique and useful tools:

Hat tip: The sources of much of the above information are @montserratlj and @cottinstef. Earlier in the month, the same knowledgeable contacts discussed Multilingual Legal Glossary, and our research program took particular note because it’s published just across the strait, by Vancouver Community College.

UVic LRW@UVicLRW  · Aug 7

Neat resource–Canadian too. Multilingual Legal Glossary via @myVCC  HT @montserratlj, @cottinstef

It doesn’t, in fact, include French, but it does offer equivalent words in one of eight languages, starting from an English word. A search of an English legal term returns the plain language meaning of the English word, along with the translated term and its meaning in the other selected language. It also suggests related terms in both languages.

I’m certain other useful free online French–English or multilingual legal glossaries exist, and I’d love to see readers’ favourites.

Categories: Teknoids Blogs

My Twitter Digest for 08/13/2014

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Categories: Teknoids Blogs

Slaw Founder Simon Fodden Wins 2014 CBA President’s Award

slaw - Thu, 08/14/2014 - 14:03

The Slaw community will be very pleased to learn that our Founder Simon Fodden has been honoured as a co-recipient of this year’s CBA President’s Award, along with former MP, Irwin Cotler.

From the press release:

The award recognizes the significant contribution of Canadian jurists to the legal profession, the CBA, or the public life of Canada.

Simon Fodden founded in 2005, a blog that is considered by many to be a foremost source of legal information and discussion in Canada.

“As we debated and analyzed the future of law, and in particular our CBA Legal Futures Initiative, Simon Fodden has helped guide our thinking,” says Headon.

“Not content to just retire after a long and distinguished academic career, he showed us how to innovate. SLAW has had a significant impact on the profession, serving as a forum to exchange ideas and to encourage change.”

“It is now used as a forum for the discussion of law, and is an example of how new technology can help the profession.”

Professor Emeritus at the Osgoode Hall Law School, York University, Simon Fodden taught family law and property law for over 30 years. He has written and lectured extensively in these areas. He is also the author of two novels.

He obtained his B.A. from Princeton University and his LL.B. degree from Osgoode Hall Law School. Simon Fodden helped found Osgoode’s intensive program in poverty law at Parkdale Community Legal Services, Ontario’s first legal clinic, and later was academic director there for two years. He also started Osgoode’s intensive program in family law. He retired as publisher of Slaw in May of this year.

Congratulations Simon! We’re all very proud!!

Categories: Teknoids Blogs

Court of Appeal Confirms Canada Is a Constitutional Monarchy

slaw - Thu, 08/14/2014 - 12:54

While the headline to this post shouldn’t be a surprise to anyone, it has made headlines. In a recent decision, the Court of Appeal of Ontario rejected claims that requiring potential Canadian citizens to swear an oath to Her Majesty was unconstitutional and reaffirmed that because Canada is a constitutional monarchy, it is acceptable to be required to verbally ascribe to what the Monarch represents. For those of us who are history geeks (me) and monarchists (also me), the decision is a fascinating read. It discusses our history, our Queen (she is the Queen of Canada) and the special role of the Crown in Canada. It also affirms the importance of the symbolism of the Crown and how it is not necessarily about the person wearing the Crown:

[54] Although the Queen is a person, in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government in Canada. This fact is reinforced by the oath’s reference to “the Queen of Canada,” instead of “the Queen.” It is not an oath to a foreign sovereign. Similarly, in today’s context, the reference in the oath to the Queen of Canada’s “heirs and successors” is a reference to the continuity of our form of government extending into the future.

Well said, Court of Appeal! While the trappings of the Crown and the concept of hereditary nobility may well be dated, the concept of the Crown and the freedom it now represents have become distinctly Canadian. While people are entitled to their Republican views and people are free to debate the issue, the Crown is the cornerstone of our constitution and I would hazard to guess that so long as our country remains a constitutional monarchy, Her Majesty and her her delegates will continue to play an important (if symbolic) role.

Categories: Teknoids Blogs

Using Technology to Confuse Students

recent article in The Chronicle of Higher Education highlights the results of an experiment done about 10 years ago by Derek Muller, then a doctoral candidate at the University of Sydney,

Muller created two types of videos to teach science to his students.

In some videos, he had an actor explain the concepts straightforwardly or “concisely.” In other videos, he included more ambiguity which some of the students called “confusing.”

But when Mr. Muller analyzed the results of tests he administered to the students before and after showing them the videos, he found that “the students who had watched the more confusing videos learned more” but the other students seems more confident in their understanding.

In 2011, Muller concluded:

“It seems that, if you just present the correct information, five things happen. One, students think they know it. Two, they don’t pay their utmost attention. Three, they don’t recognize that what was presented differs from what they were already thinking. Four, they don’t learn a thing. And five, perhaps most troublingly, they get more confident in the ideas they were thinking before.”

So maybe law professors should try adding some confusing situations to their cohesive PowerPoint presentations?

Categories: Teknoids Blogs

Final CBA Futures Report Is Now Available

slaw - Thu, 08/14/2014 - 09:00

2 years in the making.

7 key findings.

22 recommended actions.

Those are the numbers behind the CBA’s Futures: Transforming the Delivery of Legal Services in Canada report, released today.

The initiative was established in 2012 to “examine the fundamental changes facing the Canadian legal profession and to help lawyers understand and respond to those changes.”

The 106-page report identifies seven key findings, the result of thousands of hours of work through commissioned research and extensive online and in-person consultations with “a broad cross-section of lawyers, clients, law students, and other legal stakeholders,” and in-depth interviews with selected innovators.

Three teams of legal experts from across the country led the research in three main areas: legal education and training, ethics and regulatory issues, and business structures and innovation.

In short, the report’s seven key findings are:

  1. Transformative forces are changing the Canadian legal profession
  2. Lawyers need to be freed to work differently
  3. The entities in which lawyers work should be regulated
  4. A commitment to diversity in the profession should be embedded within the entities delivering legal services to the Canadian marketplace and within the governing bodies of law societies
  5. Legal education and training should be regarded as life-long processes, and educators should be empowered to innovate
  6. Data on the legal profession should be collected
  7. There is great opportunity in the transformation of legal services in Canada, and a great opportunity for the Canadian Bar Association to help facilitate

In every aspect of the legal profession — from how lawyers are trained, to practice structure and organization, to regulatory systems, to continuing professional development — the themes of innovation, flexibility, and choice are present throughout the findings and recommendations. The CBA has recognized that one size does not fit all in either the legal profession or the general population. Innovation is the “key to establishing a viable, competitive, relevant and representative legal profession in Canada.”

In finer terms, the report gives 22 recommendations that suggest concrete ways to meet the goals outlined in the findings. In short:

  1. There should be Flexibility in Business Structures
  2. CBA should lead by example in Promotion of Innovation
  3. A Centre of Expertise and Information should be established
  4. With careful regulation, Alternative Business Structures should be allowed
  5. Fee-sharing with and Referral Fees to Non-Lawyers should be permitted
  6. Delivery of Non-Legal Services by MDPs and ABSs should be permitted
  7. Model Rule commentary on Independence of Lawyers’ Opinions should be amended
  8. Compliance-Based Entity Regulation should be adopted to promote ethical best practices
  9. Compliance and Reporting on Diversity should reflect ethical and legal requirements
  10. In the Model Code, Effective Supervision of Non-Lawyers should be required, as opposed to direct supervision
  11. Law Society Directors should be elected and independently appointed
  12. Expanding Criteria for Law School Admission to take into account life experience, rather than just pre-law university.
  13. Debt Forgiveness Programs should be established for law grads who practise in certain realms
  14. Law School Entry and Exit Data should be collected and published
  15. Legal educators should have the freedom to create New Models for Legal Education
  16. Legal education curricula should focus on skills for Problem-solving in the Practising World
  17. Legal education should Focus on Learning Outcomes, developed in consultation with stakeholders
  18. Easing Restrictions on Law Students in Legal Clinics would encourage and broaden participation
  19. There should be Structured, Rigorous and Consistent Pre-call Training to ensure new lawyers can practise safely and effectively.
  20. Consistent Knowledge and Skills Standards for Certification should be applied
  21. Parallel Legal Programs in related areas (such as legal technology) should be developed to support the legal field
  22. Continuing Professional Development should meet outcome-based standards.

As one would expect, a report of this magnitude will take some time to decipher. What will regulators, educators and practitioners do with it? That, I suppose, is my question.

Will it result in actionable change? Or are we doomed to yet another round of “change discussions”; spinning us through the “more talk” cycle once again.

And not to be too much of a cynic, but we have to recognize that “more talk” is a distinct possibility. As an example, I can recall discussion surrounding “MDPs being a critical next step for future practise”, for what? 20 years? Likely longer.

This report is good enough that Canadian lawyers will be quoting from it 10 years from now. It’s full of great ideas, and actually charts what I would call a brave path. I only hope, as I expect most of those involved with its production, that this report acts as a catalyst for modernization. The Canadian legal industry deserves a level playing field in the global marketplace.

Categories: Teknoids Blogs

Ontario Personal Income Tax Rate Structure Changes, but Creates Complexities for Payroll

slaw - Thu, 08/14/2014 - 08:00

Usually, income tax table updates occur January 1 and July 1 of each year. However, because the Ontario budget was passed on July 24, 2014, the income tax table changes and resulting processes have been delayed to September 1, by the Canada Revenue Agency (CRA).

In addition, on July 24, the Ontario government tabled Bill 26, the Taxation Amendment Act, 2014. The bill passed from first reading straight through to royal assent on the same day. The new law is deemed to have come into force on January 1, 2014. The changes affect Ontario’s personal income tax rate structure.

Previously, subsection 3(1) of the Ontario Taxation Act, 2007 defined four tax rates used in calculating an individual’s basic personal income tax. The new amendments define two additional tax rates, effective for taxation years ending after December 31, 2013: first, the income threshold for the highest tax rate (currently 13.16 percent) is reduced from $514,090 to $220,000. Second, a new tax rate of 12.16 percent will apply to taxable income between $150,000 and $220,000. As a result, there are now five tax rates. The two new income thresholds will not be adjusted for inflation each year.

The basic personal income tax for a taxation year of an individual ending after December 31, 2013, is the sum of the following amounts:

  1. The amount calculated by multiplying the lowest tax rate for the year by the portion of the individual’s tax base for the year that does not exceed $40,120.
  2. The amount calculated by multiplying the second-lowest tax rate for the year by the amount by which the individual’s tax base for the year exceeds $40,120 and does not exceed $80,242.
  3. The amount calculated by multiplying the middle tax rate for the year by the amount by which the individual’s tax base for the year exceeds $80,242 and does not exceed $150,000.
  4. The amount calculated by multiplying the second-highest tax rate for the year by the amount by which the individual’s tax base for the year exceeds $150,000 and does not exceed $220,000.
  5. The amount calculated by multiplying the highest tax rate for the year by the amount by which the individual’s tax base for the year exceeds $220,000.

Consequently, the September 1, 2014, version of “Guide T4127, Payroll Deductions Formulas for Computer Programs,” contains adjustments for the increases to the personal income tax rates in Ontario. The proposed changes are retroactive to January 1, 2014, and the revised tables reflect prorated tax rates to allow employers to withhold the correct additional amounts from affected employees between September and the final pay of 2014. The changes to the tables apply to employees who earn more than $150,000 in 2014.

So how do these changes impact employers’ withholding and remitting obligations?

The Canada Revenue Agency states:

“The CRA normally requires employers to withhold and remit income taxes in line with current rates, but because of the complexities and timing of the Ontario budget measures, it is recognized that these income tax changes will be implemented on a best-effort basis where practical, in full appreciation of the different payroll systems and administrative capacities of employers. Employers will not face penalties for failing to withhold as a result of the Ontario budget measures introduced on July 14, 2014.”

“Employees whose employers are unable to change their payroll systems or processes on time can ask their employers to increase withholdings from September to December 2014. This could reduce the amount the employees owe when they file their 2014 income tax and benefit return.”

The Canadian Payroll Association (CPA) has indicated that, “for these organizations, the CRA will enable employees to request the additional taxes using Ontario TD1s effective from September to December 2014 and make any final payments owing on the T1 personal tax return.”

The CRA is encouraging employers to discuss these changes with affected employees.

In addition, it is important to note there are no changes to the federal tax rates, income thresholds or personal amounts required for September 1, 2014. However, some provincial and territorial changes have been announced for September 1, 2014. At this time, this version only includes the Ontario changes and will be revised by September with the other provincial and territorial personal income tax changes.

In the Ontario provincial budget of July 14, 2014, changes were announced to the provincial tax rates and income thresholds. Effective September 1, 2014, the rates and income thresholds are as follows:

  • 5.05% on income less than or equal to $40,120
  • 9.15% on income greater than $40,120, but less than or equal to $80,242
  • 11.16% on income greater than $80,242, but less than or equal to $150,000
  • 12.16% on income greater than $150,000, but less than or equal to $220,000
  • 13.16% on income greater than $220,000

The CPA outlines the complications:

“The personal tax rate increases in the Ontario budget are one percent for earnings of $150,000 to $220,000, and two percent for $220,000 to $514,090. Because the tax increases are effective January 2014, but implemented for only the last four months of 2014, the new CRA tax tables will result in these employees having a three percent or six percent increase in their Ontario tax deduction on regular pay from September to December 2014.”

“Employees earning over $514,090 will also have a retroactive tax increase from September to December 2014, since their earnings between $150,000 and $514,090 would have been taxed at the lower rates from January to August 2014.”

The updated payroll deductions online calculator and the electronic version of the T4008 Payroll

Deductions Supplementary Tables and T4032 Payroll Deductions Tables for Ontario will be available on the CRA website by mid-August.

The paper and CD version of the T4032 will be available by the end of August.

Employers should ensure that their payroll service and software providers have made the programming changes required by September 1, 2014, to enable employers and Ontario employees affected to comply with the higher tax rate.

Sources: Canada Revenue Agency website and Canadian Payroll Association legislative briefing

Categories: Teknoids Blogs

Stop Losing Clients Over Your Fear of Payment Plans

The Lawyerist - Thu, 08/14/2014 - 06:12

Collecting attorney fees is difficult, which is why many lawyers insist on getting fees up front.

But after turning away thousands of dollars in business, I started looking at the potential clients who were walking away. I realized the average fees were between $1,000 and $4,000, and were generally for lower-level court cases. Many of these potential clients had professional jobs, but either had credit cards with insufficient limits or did not use credit cards even though they may have qualified. I felt that these potential clients were suitable for a payment plan.

With this knowledge, I decided to take on client financing. Here is what I learned.

Research Your Client

You must make sure that your client is worthy of financing. Financing every client is foolish. You have to ensure that the client has incentive and ability to pay. A credit report and score can give you a lot of information about your client’s financial history.

Major credit bureaus have plans where you can request that the client run their credit report. I have my clients use Experian Connect. For less than $20 a client can run his or her credit report and share it with me. This process is extremely simple and you can set it up in minutes.

Related“What is a good credit score?”
Small Business Plan Resources

Do your own research as to what range of credit scores you are willing to work with. The “Experian Plus” score ranges from 330 to 830.  After some research and discussion with colleagues in the mortgage business, I decided that scores below 575 are simply too much risk.

Depending on the credit score and credit history, you may want to modify how much you require your client to put down. Requiring a credit report is also a great way to weed out those who have no interest in hiring or paying you. If they are serious, they will run the report and share it with you in minutes. If they aren’t, they will waffle on running the report or drag their feet on sending you a copy.

Once you have obtained a credit report, you need to confirm that your client has a bank account with steady income. Ask your client to bring in bank statements covering the previous two months for you to review. This will tell you what their income is, when they get paid, and whether they maintain a balance.

The client’s ability to pay will also be verified by the first payment. Sometimes, clients will want to pay the up-front fee in cash, and then continue with payments. In that case, you should at least charge their account something, even if it is just a small amount to verify that the account is valid.

Setting up a Payment Plan

Having a client pay you $10 a month for 10 years is not reasonable when you have your own bills to pay. The goal is to come up with a reasonable payment plan that is affordable for your client and minimizes your risk.

For a case where the fee is $2,000, and your client pays half of the fee up front, you can finance the remaining $1,000. I like to set up plans where payments are charged right after each payday. That way if someone gets paid every two weeks, $200 per payday will have the balance paid in five payments, or about two and a half months.

Keep in mind that if you refuse to finance, you are losing money because the client will just walk away. If you only take half without offering a payment plan, you just make half the fee you would otherwise charge. Financing the second half takes time, but you will probably collect the entire fee.

Collecting Payments

RelatedPayment Schedule Template

Once you decide a client is qualified and agree on a payment plan, you should provide a terms disclosure, a written payment schedule, automatic draft authorization, and your fee agreement. Preparing form documents will allow you to quickly repeat this process with only a few minutes added to the client meeting.

The authorization for automatic draft is essential to a workable financing plan. You simply cannot rely on your client to bring in a payment. For $35 a month plus nominal transaction fees, PaySimple will automatically draft payments from a client’s bank account and email an invoice. Those funds will deposit into your account about 3 days later — no calls, no begging, no appointments, no staff, and no hassle.

Of course, there are other companies that provide a similar service such as Chargify and Fusebill.

How To Charge Interest

To compensate for the risk of financing and delayed payment, I charge a flat 10% to the amount financed; you can adjust the charge based on your time and needs. I have found that the added 10% will cover the few extra minutes spent on preparing the payment schedule and setting up the automatic draft.

Therefore, if the client finances $1,000, $100 is added to the balance. All this is explained to the client in writing, and I give them a spreadsheet showing all of the charges, calculations, and dates of the auto drafts. I keep the signed originals of all of these documents and give them a copy.


Attorneys should always be on the lookout for ethical issues that may arise. I am not aware of any ethical problem with a client voluntarily bringing in payments, and I have not found a problem with arranging a fair auto-drafting payment plan. Just make sure everything is disclosed to the client in writing. If a client contests the fee or demands that the drafts stop, you then have to choose whether the fee is worth your time, effort, and reputation to contest. Regardless, it is best to check your state’s professional responsibility rules to be in full compliance.

While there are no guarantees, I have yet to be stuck with any part of any fee where the client has agreed to a fair scheduled payment that automatically drafts from their account. While I still prefer my fees upfront, I have found this to be a safe approach for keeping business that I would have turned down. Having a written policy, performing a credit check, and most importantly, having a fair payment plan with auto-draft will greatly minimize the risk of financing your clients.

Featured image: Golden coins in soil with young plant. Money growth concept.

Categories: Teknoids Blogs

Is Cycling the New Golf?

slaw - Thu, 08/14/2014 - 06:00

People are always looking for a way to do business development in the summer that is fun and ensures ample time to get to know your client or potential client better. For decades that has been done on the golf course. It is often said that if you can spend 5 hours on the golf course together then you won’t mind working through the details of a transaction.

But not everyone likes golf and certainly not everyone is good at golf.

The sport of cycling has steadily been growing in popularity for the last number of years. Maybe it was the Lance Armstrong effect or the ability to watch world-class cycling events easily, or maybe it’s because anyone can do it. No matter the reason, people are cycling more and it can be a great way to do business development.

This year I was asked to join a group of riders in support of Multiple Sclerosis. My contact knew that I was a fairly active cyclist and thought I would enjoy a ride from Grand Bend, ON to London, ON and back again. I jumped at the chance as not only did it give me a reason to be on my bike but I also knew it would be a great way to learn more about him and his company.

The great part about cycling is that almost all of us have done it at some point or another. Most rides are not set up as races but as tours meaning there are lots of stops and support people. Other riders are not keeping track of time, rather they are too busy enjoying the scenery and talking with the other cyclists. There is no limit as to who can participate either – in the case of my group, our team has over 60 people among the 1,500 riders.

From a business development standpoint, not only are you spending a day or two riding with like-minded people, but you also have likely done a number of training rides together as well. In the case of a golf game you will spend half a day together once a summer. In the case of cycling you may end up with the person on a weekly basis for several months – plenty of time to get to know someone and their business.

There are countless rides of various lengths all across the country that people can participate in. I encourage you to dust off the bike and get outside.

Categories: Teknoids Blogs

LegalTech Startup Weekend San Francisco, 15-17 August 2014: Links and resources

Legal Informatics Blog - Thu, 08/14/2014 - 03:22

LegalTech Startup Weekend San Francisco is scheduled to be held August 15-17, 2014, in San Francisco, California, USA.

The event’s Website is at:

The Twitter hashtag for the event is #legaltechSW

The Twitter account for the event appears to be @LegalTech_SW

Click here for a storify of Twitter tweets and photos from the event.

The organizers of the event say (here and here) that coding and design work are scheduled to take place during the event.

Here is a description of the event, from the event’s Website:

The intersection of law and technology presents unique challenges and exciting opportunities for growth and creativity. Recent years have seen a surge of answers to law’s need for innovation, such as e-discovery tools, contract generation apps, virtual firms, and websites changing the way we research. Myriad possibilities remain to integrate tech into solutions for attorneys, clients, businesses, and the government. SF LegalTech Startup Weekend will bring together legal professionals, policy geeks, programmers, and designers to disrupt the legal services market and bring it into the 21st Century – one solution at a time.’

The challenges will address:

(1) Access to justice for consumers

(2) Development and implementation of legal tech tools

  • for other industries
  • for in-house counsel
  • for law firms
  • for document/knowledge management

(3) Open-sourcing the law

(4) Legal Education

  • for more informed citizenry
  • for law school curricula


SF LegalTech SW will:

(1) Leverage the knowledge of legal professionals and students to explore new directions for legal tech products, services, and resources.

(2) Foster positive relationships among Bay Area law schools and the local tech and legal communities.

(3) Provide the opportunity for people across industries to brainstorm, collaborate, design, and develop innovative products and services to address challenges facing the legal system. [...]

Maria Zilberman has published an article about the event in The Recorder: Legal Hackathon Planners Want to Cure Industry’s ‘Pain Points’.

For more details, please see the event’s Website.

HT @rightbrainlaw

Filed under: Applications, Conference Announcements, Conference resources, Hackathons, Hacking, Showcases, Storify, Technology developments, Technology tools Tagged: #a2j, #LegalHack, #legaltechSW, @LegalTech_SW, Access to justice and legal information systems, Free access to law, Law practice technology, Legal document management, Legal educational technology, Legal hackathons, Legal hacking events, Legal instructional technology, Legal knowledge management, Legal startup events, Legal startups, Legal Tech Startup Weekend, Legal Tech Startup Weekend San Francisco, Legal Tech Startup Weekend San Francisco 2014, Open legal data, Public access to legal information, Technology for access to justice
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My Twitter Digest for 08/12/2014

<CONTENT /> v.5 - Wed, 08/13/2014 - 14:30
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Ontario Beta-Tests New Legislation Web Site

slaw - Wed, 08/13/2014 - 12:29

The Ontario government is harmonizing the look and feel of all its websites. One of the sites being renovated is the e-Laws site, home of Ontario’s official statutes and regulations.

The Ministry of the AG has just tweeted a general invitation to try out the new site in beta, and to comment.

Here is the English language law site

Here is the French language law site

There is a ‘contact us’ button in the text at the top of the page. Please use it to comment on the beta version (though you may feel free as well to say what you think of it here.).

It will be very important for people like the members of Slaw, i.e. sophisticated users of legal information systems, to comment. Be direct, be frank, because that is what will help the testing.

(Note that the site won’t work very well on Internet Explorer 8 or other older browsers.)

Categories: Teknoids Blogs

Wipe Your Car Before You Sell It

slaw - Wed, 08/13/2014 - 08:16

I’m in the process of buying a new car, and realized that when we get rid of a car we should think about more than just cleaning out the glove box and taking the snowbrush out of the trunk. A list of data to clear is at the end of this post.

At one time, cars stored no personal information other than the odometer reading and radio presets.

Cars are laden with computers that control and monitor things like the engine, brakes, climate control, entertainment, tire pressure, and safety features. With this comes more data, and with more data comes the temptation to save it and to use it for other things. This is becoming even more so for hybrid and electric cars.

An example is the OBD (on board diagnostics) and EDR (electronic data recorder) system. They contain useful information for the diagnosis of problems, and information for a short period (measured in seconds or minutes) for accident investigation, such as speed, seat belt use, steering angle, number of passengers, engine speed, and throttle position.

It is possible to plug devices into the OBD port to use and retain that information for displaying a dashboard on your phone, spying on your kids driving habits, or sending to your insurer for rate calculations.

Since the EDR system contains limited memory and overwrites itself quickly, there is little risk of that personal information being used after you give up your car – but if you are concerned, make your last drive a leisurely one.

Keeping in mind that it is easy to get a used car report showing owner name and address to link data on your old car back to you, here are some things you might want to do before you part with your car:

  • Delete Bluetooth pairings.
  • Delete stored phone numbers and call history.
  • Remove any CDs, DVDs, and usb keys. (It’s easy to forget a usb key, for example, plugged into a port hidden in the glove box or other compartment, and it might have more on it than just music.)
  • Delete built in garage door opener codes.
  • Clear the GPS of pre-programed destinations and route history.
  • Clear wifi hotspot settings and passwords.
  • Remove any OBD/EDR recorders you have added.
  • Cancel Onstar subscription and reporting. (I know someone who forget to cancel reporting, and continued to get monthly reports on his old car now with the new owner.)
  • Cancel or transfer satellite radio.
Categories: Teknoids Blogs

What Do Legal Consumers Really Need?

slaw - Wed, 08/13/2014 - 07:52

A new study into legal needs has recently been released (hat tip to Richard Zorza for his blog post on the report.) Accessing Justice in the Contemporary USA: Findings from the Community Needs and Services Study (conducted by the American Bar Foundation and Rebecca Sandefur) was released August 8 at the American Bar Association’s annual meeting in Boston.

The research findings include:

  • 66% of those surveyed reported experiencing one or more civil justice situations involving money, debt, rented and owned housing, insurance, employment, government benefits, children’s education, clinical negligence, personal injury, and relationship breakdown and its aftermath in the 18 months prior to the survey.
  • The situations people reported most commonly involved their livelihood and financial stability.
  • Poor people were significantly more likely to report civil justice situations than people in high or middle income households. African Americans and Hispanics were more likely to report civil justice situations than were white/non-Hispanic people.
  • People attribute a wide range of negative impacts to their civil justice situations, including verbal and physical violence, lost confidence, loss of income, and negative impacts on physical or mental health.
  • The most common ways in which people report handling civil justice situations is: 1. by taking some action on their own without any assistance from a third party; 2. turning to their immediate social network, including family or friends; and 3. with the assistance of a third party who was not a member of the person’s social network.
  • People reported that they did nothing about 16% of the civil justice situations they experienced.
  • People don’t seek help from an adviser outside their own social network because:
    • 46% did not see the need: either the problem had resolved or they expected it to resolve without getting advice, or they simply felt that they did not need advice;
    • 24% believed that it would make no difference;
    • 17% had concerns about the cost of seeking outside advice; and
    • 9% did not know where to go or how to do so.
  • Those surveyed typically did not think of their civil justice situations as legal issues. They characterized only 9% of their civil justice situations as legal and 4% as criminal issues. Much more commonly, they described these situations “bad luck/ part of life” or as “part of God’s plan.”

The report concludes:

While civil justice situations are frequent in the lives of Americans, turning to the legal system to handle them is not. The most common type of civil justice experiences are in fact those that do not involve contact with lawyers or the formal legal system. One predominant explanation for why more Americans do not turn to lawyers with such situations involves the cost of legal services. But the findings of the Community Needs and Services Study make clear that it is not so simple. When facing civil justice situations, people often do not consider law at all. They frequently do not think of these situations as legal, nor do they think of courts or of attorneys as always appropriate providers of remedy.

The survey results confirm that it is of the utmost importance to inquire of the public what their legal needs are and what barriers, if any, they perceive in accessing legal services.The best way to determine what those with legal issues really need is to ask them.

The findings of this report also serve as a useful reminder that making assumptions about why people don’t access legal services and what is needed to get them to do so can lead us down the wrong path, potentially resulting in solutions that don’t address the real issues at all.

If those experiencing civil justice issues don’t perceive these to be legal issues, then why would they spend their hard earned dollars on getting legal advice? And if cost isn’t the primary issue but understanding that civil justice problems have legal implications is, then perhaps many of these concerns are best addressed through public legal education and information campaigns.

Categories: Teknoids Blogs

Lawyers Won’t Lose Clients to DIY Legal Services

The Lawyerist - Wed, 08/13/2014 - 06:12

Currently, consumers can pick from a range of options for do-it-yourself legal services. You can get a divorce at OfficeMax, a will from Amazon, and dissolve a partnership with LegalZoom. Those are just a few examples, of course. There are hundreds of DIY legal documents available online and offline.

People who want to do their own legal work are, naturally, not likely to hire a lawyer in the first place. And people who hire lawyers do not want to do their own legal work.

Sure, the economy may be encouragement for some people to do their own legal work who would have preferred to hire a lawyer before 2008. The economy may also have encouraged some people to do their own home remodeling who would have preferred to hire a contractor before 2008. But the vast majority of non-DIY consumers have remained non-DIY consumers in both cases. They may put off the work until they can afford it, but they probably aren’t tempted to go it alone.

TurboTax exists, after all, but plenty of people still hire tax preparers and accountants.

So now is not the time to panic.

The time to panic is when the only thing you have to do to get a will or a divorce is push a few buttons. That is not DIY; that is more like hiring a lawyer to do something for you, only cheaper and without the uncomfortable waiting room.

Imagine going to a website for a will. It asks you to allow a one-time connection to your Facebook and Google accounts, then checks public records for any information it cannot get from your online accounts. Then it asks for the name of your guardian before spits out a good-enough will.

This is push-button legal service, not a DIY legal service. There are no complicated forms to fill out or documents to track down and upload. All you have to do is push the button that says Give Me A Will! This is not the stuff of the future, either; it should be possible to build a system like this using current technology. In fact, the Shake app is pretty close, although with a limited range of documents available, most of which do not require any extra information.

So … panic?

Well, if your practice is based on the kind of simple documents Shake has turned into push-button contracts, I would be worried even if Shake did not exist. But plenty of people have practices based on the kind of legal documents that make up most of the DIY legal documents on the market today. And those documents are probably the most likely to be transformed into push-button legal documents. So if my practice were based on them, I would probably be looking for a different practice area or trying to figure out how to offer legal documents with the push of a button myself, first.

Featured image: “Vintage DIY (do it yourself) concept” from Shutterstock.

Categories: Teknoids Blogs

Wednesday: What’s Hot on CanLII

slaw - Wed, 08/13/2014 - 06:00

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Appeals from commercial arbitration decisions are narrowly circumscribed under the Arbitration Act. Under s. 31(1), they are limited to questions of law, and leave to appeal is required if the parties do not consent to the appeal. Section 31(2)(a) sets out the requirements for leave at issue in the present case: the court may grant leave if it determines that the result is important to the parties and the determination of the point of law may prevent a miscarriage of justice.

In the case at bar, the Court of Appeal erred in finding that the construction of the finder’s fee agreement constituted a question of law. Such an exercise raises a question of mixed fact and law, and therefore, the Court of Appeal erred in granting leave to appeal.

The historical approach according to which determining the legal rights and obligations of the parties under a written contract was considered a question of law should be abandoned. Contractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix of the contract.

2. R. v. Michael, 2014 ONCJ 360

[75] Exposing those who are poor such as Mr. Michael to perpetual, unsatisfied, sentencing obligations also deprives them of the ability to repay their debt to society. Because they do not have the means to repay, they lose the opportunity to be restored. I do accept that many offenders lack the sophistication to delve into deep questions of legal philosophy and moral responsibility, and that is probably true of Mr. Michael. Still, the notion of just punishment has long carried the promise that after the eye is given for the eye, the offender has discharged their debt and reconciliation can begin. The whole idea of restorative justice legislatively endorsed in the Criminal Code and recognized to be of cultural significance to aboriginal offenders such as Mr. Michael, depends on reconciliation. Indeed, some legal philosophers have justified punishment on the basis that it is a kindness to offenders to punish them since it permits them to heal. Whether this is persuasive or not, the flip side is. It is a cruelty in some measure to tell an offender that they must discharge an impossible sentence before their debt is expunged. Reducing all of this to a less ethereal plane, the point is that so long as Mr. Michael fails to pay the victim surcharge he remains indebted and criminalised. He has not paid the price for his crime and remains unrequited because he is poor. It is worth noting in my view that when it comes to the sentence of discretionary fines the law avoids this consequence by prohibiting fines from being used to punish offenders who cannot pay. In the case of victim surcharges, imposing unpayable monetary penalties is a legislatively accepted consequence. If it proves to be true that Mr. Michael never gets out from under the debt the impugned legislative scheme seeks to impose, it is a consequence that would befall him. He will remain indebted to society with all of the stigma and stress that imposes.

[76] As indicated, Mr. Konyer identified still other collateral consequences that would occur from overlong or perpetual poverty-caused non-payment by Mr. Michael, even if he is never actually deprived of the money. The Crown urges that many of these concerns are unrealistic in his case. The Crown urges that so long as Mr. Michael is unable to pay the victim surcharge, for example, it is unrealistic to imagine him undertaking licenced activities, and so he will not be affected by the collection strategy available under Criminal Code section 734.5 of refusing to give or renew licences and permits to him until a victim surcharge debt is discharged. The Crown also points out that it will not be victim surcharge that impairs his credit rating. I agree with these base observations, and as I pointed out during argument, the same point can be made in the case of a record suspension. The application for a record suspension costs $631. If Mr. Michael can pay that sum he can pay the victim surcharge.

3. the Queen v. Pro Bono Law Ontario, 2014 HRTO 1092

[3] In his Application the applicant alleges that he was denied services by the respondent because he is a person with a disability. The applicant alleges that he is a person with schizophrenia and sought legal assistance from the respondent, a charitable institution which provides legal services to persons in financial need.

[4] The applicant sought the services of the respondent to launch a civil suit for wages allegedly owed to him for his reign as Her Majesty the Queen. The applicant has apparently changed his legal name to Her Majesty (first name) the Queen (last name). Although he identified himself to the Tribunal by his previous legal name, he has submitted documentation to the Tribunal that appears to confirm his change of legal name, including a document of name change issued under the Vital Statistics Act, dated March 20, 2014. In the circumstances of this case, where the applicant has self-identified as an individual with a psychiatric disability, I see no need to identify the applicant by his previous legal name. The proposed defendant was Stephen Harper.

[5] The applicant made an application for legal assistance from the respondent. He submitted an application in which he provided information necessary for the respondent to assess his application. Amongst other criteria an applicant’s financial means are assessed. The respondent also makes an assessment of the likelihood of success of the proposed legal proceeding. In his application the applicant articulated his civil claim as set out above.

The most-consulted French-language decision was Hébert c. R., 2014 QCCA 1441

[18] Je n’entends pas ménager mes mots. On remarquera à nouveau le ton méprisant et le fait que le juge omet systématiquement d’utiliser l’appellation professionnelle de « Maître » lorsqu’il s’adresse à la procureure de l’accusé. S’ajoute à l’attitude inacceptable du juge son refus répété, voire obstiné, de traiter ou même d’envisager l’objection de l’appelant relative à une preuve préjudiciable non divulguée, dont le contexte est que, pendant l’interrogatoire par la Couronne, le témoin incarcéré Dany Roy rapporte qu’un gardien de prison lui a expliqué que sa vie était en danger car les Hells Angels auraient placé un contrat sur sa tête en raison de sa collaboration au procès de l’appelant. La défense s’oppose immédiatement, ce qui se justifie, au motif que la poursuivante ne lui a pas divulgué cette information.

[19] Comme nous l’avons vu, le juge, réaffirmant en quelque sorte sa propre infaillibilité, rejette l’objection à trois reprises. Il permet au témoin de continuer, avant d’interrompre éventuellement l’interrogatoire, après un échange avec les procureurs hors la présence du jury. Il émettra une directive correctrice indiquant au jury d’ignorer cet aspect du témoignage quant à la véracité de son contenu, ce qui en dit long sur la légitimité de ses reproches initiaux à la procureure de l’appelant.

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

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