Open Sourc… 11:55:09, 2014-02-25
A few weeks ago, I asked a local solosmall email list whether small firms have a diversity problem. My question was prompted by a job posting from a small firm made up exclusively of young, white men (except for the secretary, who was a young, white woman).1 On reflection, I could not think of many small firms with any better diversity (including my own, which, at its most-diverse, was three white men and a remote assistant who was a white woman — oh, and a couple of Irish foreign exchange students from a local law school, both men).
But I didn’t think it was fair to apply my limited anecdotal experience to an entire segment of my state’s legal market, so I tried to crowdsource it. While it is relatively easy to survey big firms for diversity, it would be virtually impossible even to list all the firms with 2–20 lawyers or so in any metropolitan area, much less survey them for diversity.
I figured the members of my state’s solosmall listserv, who come from all over the state, would be able to give me a better idea of small-firm diversity. So I asked, and although I got well over 50 responses, almost nobody told me whether they had encountered diversity in small firms. Instead, I got responses like this:
[T]his resembles a camel in the Sahara, looking for sand. There’s plenty of it, but so what?
I’m really not sure what that means. I also got a lot of reactions like this one, suggesting that many lawyers took the question personally:
My firm consists of two lawyers – one fifty something woman, one thirty something man. Does the fact that we are both white mean that we have a diversity problem?
And a few anecdotes noting the existence of a person who is a member of a racial minority somewhere nearby:
There is an attorney of Chinese ethnicity in the Stearns County attorney’s office. Is that enough diversity for you?
(That one may have been a joke, to be fair, but there were many others essentially identical to it that were definitely not jokes.) Many of the responses went similarly, with an account of the sender’s firm’s makup, and a challenge — “Is that diverse enough for you?”
Just by asking about diversity, I guess I set myself up as a target for people who either don’t want to talk about diversity or don’t believe there is a diversity problem in small firms. I felt like I was asking the NFL about concussions.
It would be easy to assume that these comments come from people who are defensive because their own firms lack diversity, but that is not necessarily the case. Some of the lawyers I quoted about are diverse in their own right, or come from firms most would consider diverse.
So in the end, I still don’t know whether small firms are diverse, much less whether or not we should consider the existing level of small-firm diversity to be a problem. What I do know is that most small firms don’t do a lot of hiring. A very small firm may hire just a handful of people during its existence. That’s not a lot of opportunity to introduce diversity, and I wonder how many small firms even consider diversity when taking on a partner. Maybe a lot. Maybe none. And if small firms tend to be homogenous as a result, is that a problem?
One person who responded came at the issue from a different angle:
I started my career in Biglaw and periodically hang out at events where someone is addressing the “lack of diversity” in the profession – without questioning the unspoken assumption that “the profession” is big firms. Biglaw was invented by old white guys between 1900-1970, and it continues to bear all the hallmarks of its era. Expecting it to accommodate difference in any meaningful way is (in my opinion) like expecting a cruise ship to sprout wings and fly. That’s just not what it’s for.
So after hanging my shingle, imagine how fun it was to discover where the missing “diversity” was hiding… in plain sight, in solo practice. Pretty much every Title VII protected class I can think of is “overrepresented” among solos and smalls relative to Biglaw.
In other words, maybe solosmall, taken as a whole, is more diverse and that’s a problem.
Still, I am no closer to an answer, so I will try again. Do you think small firms are diverse? Do you think the level of diversity you have observed in small firms is a problem? Why?
Featured image: “Image of businesspeople’?? silhouettes in a rush” from Shutterstock.
I did follow up with one of the owners. He said his first two hires were women, although the next few happened to be men. And even though the firm photo had only men, they recently hired a female lawyer who was not yet on the website. He said he was sensitive to the perception that his firm lacks diversity, and that the firm is doing its best to address it.
Do Small Firms Have a Diversity Problem? is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
What distinguishes a licensed, practising lawyer from another unlicensed legal professional?
Many will say that the answer is trust. The lawyer has duties and obligations to their client pursuant to a professional code of ethics and the profession’s regulatory scheme. A regulated lawyer has professional liability insurance coverage (mandatory in Canada) and is also “covered” for theft by their local compensation fund.
Clients can rely on those structures to protect them from lawyer’s mistakes, misdeeds and misappropriations. They can place their trust in their lawyer, and failing that, the lawyer’s regulator, liability insurer and compensation fund.
I was reminded of the importance of these foundational structures yesterday when I read the headline, Lawyer faces new allegation of professional misconduct and learned that a Manitoba lawyer has been suspended and is facing allegations of misappropriating client trust funds.
Later in the day, I received another reminder with my annual invoice for practising fees from the Law Society of Manitoba. The invoice included an increased contribution to the Law Society’s Reimbursement Fund as well as a notice advising that there are a some large claims to be paid from that fund in the coming year, drawing down reserves. As a result, I (and some 1500 other Manitoba lawyers) will pay a heftier levy this year to replenish the fund for the future.
As a licensed and regulated lawyer, I am required to uphold the ethical and practice standards set by my professional body. I am required to pay my annual fees for the privilege of practising. I am required to purchase and maintain liability insurance. And I am am required to contribute to the cost of reimbursing another lawyer’s clients when that lawyer has stolen client money.
It’s a lot to swallow on the day the invoice comes from the Law Society, but it underscores the degree to which the legal profession as a whole takes seriously the obligations that flow from the trust clients have placed in us. It also points directly to the enhanced value still provided by a regulated “brand” of legal services.
Thanks to the work of Corporate Records & Archives and the Great Library, the Law Society of Upper Canada has made the minutes and transcripts of Convocation available online as a searchable and browsable database. According to LSUC Archivist Paul Leatherdale, “The site contains the public versions of the Minutes of Convocation from April 1988 to the present, and the public Transcripts of Convocation from September 1991 to the present.”
The Professional Regulation Committee, in the form of the Alternative Business Structures Working Group, of the Law Society of Upper Canada has just submitted a Report to Convocation on the subject of alternative business structures. In all, though I’ve not had time to fully review the report, it’s quite positive about new business structures and recommends that Convocation explore various models and the rules necessary to implement and control them. This from the executive summary:
Conclusion and Recommendation: The Working Group concluded that there are negative consequences inherent in current regulatory limitations on the delivery of legal services in Ontario that could be addressed with the thoughtful liberalization of business structures and the related liberalization of what non-legal services can be provided by entities providing legal services. The Working Group identified four structural and services models as options for consideration as permissible regulatory structures, and for consultation:
The Working Group recommends that these four models be the subject of consultation with interested groups and individuals prior to a decision as to which is the preferred option for recommendation to Convocation. The four models are described in greater detail at paragraphs 162 to 179 of the report.
This is a report that all lawyers will want to read, initiating, as it does, the likelihood of widespread and fundamental reform of the economics of legal practice.
A few months ago I questioned whether there was any worth in a lawyer paying for an enhanced profile on legal lists.
I got a call recently that topped that concept.
The call was from a publisher in England. They started off by talking about their publication read by thousands of CEOs around the world. And an upcoming edition that was going to feature a global CEO survey on social media risk from a major accounting firm. They did their best to promote this as a high profile publication.
Then they said they wanted to do a companion article to get a perspective from a lawyer with social media experience, and asked if their writer could contact me to ask some questions.
So the wheels start turning. Is this for real or a scam? Is there any reason I should / should not do this? Might this be a good promo opportunity? Might this be a good investment of my time?
Then reality hits – and the answers become clear. For the privilege of being interviewed, I have to pay a fee of 7900 pounds – about $15,000!!!
Really? Are lawyers and other professionals that gullible that they will actually pay that kind of money to be featured in an article? And the publication actually expects an expert to pay them to give their article credibility?
Sadly the fact that these types of businesses exist tells me that lawyers and other professionals are indeed that gullible.
Is being an expert or thought leader not something one earns, rather than purchasing for a price approaching a small car?
Forget earning your place as a thought leader – for the price of a small car, you too can find your place among them.
To a hammer, everything is a nail
There is an old aphorism that “To a hammer, everything is a nail”. The aphorism reflects the centrality of perspective. Where you stand very much affects what you can (or want to) see.
I think that Professor Julie Macfarlane makes this point in the context of discussions about access to justice. Professor Macfarlane has carefully researched and thoughtfully written about the reality that most family law litigants don’t use lawyers. She speaks about this issue with lawyers yet, as she seems to say, the discussions with lawyers about this topic are, at best, stilted. I suspect that this is because lawyers see the access to justice issue from their professional perspective, are rightly proud of the work that they do for clients and have difficulty processing the access to justice issue from any perspective other than their own.
So the main point of this column is to try to address the A2J question from a different perspective and to use that perspective to look at the solutions offered.
Middle Income Access to Justice
In 2012, Professors Trebilcock, Duggan and Sossin published Middle Income Access to Justice. The book drew on 23 surveys of the public’s experience with justiciable problems undertaken across 13 countries.
The importance of this approach is that it looks at justiciable problems experienced by the public rather than looking at what lawyers do. The punch line is that there is a difference. Lawyers know what lawyers do. Lawyers fairly believe that lawyers do good things. So lawyers don’t see problems. To a hammer, everything is a nail.
The 2009 Ontario Civil Legal Needs Project is examined in the book by Professors Baxter, Trebilcock and Yoon. They examine the data seeking to determine what predicts the decision to seek legal advice. In other words, when do the members of the public go to lawyers for help? The answer is that it is the problem type significantly predicts whether a lawyer is consulted. And there are four problem types that predict the involvement of lawyers namely criminal, family, wills and powers of attorney and real estate. While not significant in a statistical sense, personal injury comes a close fifth on the numbers.
That the public goes to lawyers for criminal, family, wills and powers of attorney, real estate problems and personal injury problems should come as no surprise to lawyers. This is pretty much exactly what lawyers say that they do for individuals. In 2005, the Law Society of Upper Canada Sole Practitioner and Small Firm Task Force reported that lawyers in sole practice and in small firms generally represent individuals (77%) and that these lawyers practice real estate (46%), civil litigation (39%), wills, estates, trusts (35%), corporate and commercial (33%) and family (26%).
What do lawyers do? What legal needs exist?
Given that the public says that it uses lawyers for criminal, family, wills and powers of attorney, real estate problems and personal injury problems and that this is what lawyers say they do, we can have a strong degree of confidence about the nature of the practice of law for individuals.
Solicitors do real estate work, assist with wills, estates and trusts and also do some corporate and commercial work (presumably for small businesses). Litigators do criminal, family and personal injury litigation. Some lawyers of course do solicitors work as well as litigation.
That these are the categories of work done by lawyers makes obvious sense. Members of the public with significant assets use solicitors to help them with real estate transactions and in dealing with inheritances made or received. Members of the public who have trouble with the criminal law, who are in failed family relationships or who seek compensation for significant personal injury use litigators.
But what lawyers don’t see and cannot appreciate is that this amounts to a relatively small portion of the justiciable problems experienced by members of the public. According to the 2009 Ontario Civil Legal Needs Project, the public only seek legal assistance in respect of 11.7% of justiciable events.
Said simply, the public use lawyers for less than 15% of the justiciable events experienced by them. Said another way, what is 100% of lawyers’ practices is less than 15% of the public’s legal needs.
What about the other 85%?
Of the over 85% of justiciable problems that don’t attract legal attention, approximately 60% are consumer problems, money/debt and employment problems. A smallish proportion is in respect of discrimination, housing, hospital treatment/release, welfare benefits, disability benefits, immigration and other matters.
Should we care about the 85% of legal needs that are not addressed by lawyers? For the legal philosopher, the answer must be yes. As Professors Trebilcock, Duggan and Sossin put it “Most conceptions of the rule of law assume equality before the law and hence access to law or the justice system as one of its fundamental predicates”. And as Professor Gillian Hadfield argues, it seems quite wrong that the businesses on the other side of these justiciable events have expert legal assistance while the public does not. For the Law Society, the answer must also be yes given its public interest mandate. For individual solicitors and litigators who are struggling to do a good job and make a decent living, it is not surprising that this 85% is not on their radar.
The next question is why are lawyers used for less than 15% of legal needs? This is not well examined but I think the reason is clear. Lawyers are small business people who sell their time and expertise to help members of the public solve their problems. Taking into account the incomes reasonably required by university-trained highly intelligent professionals and their overheads, the fees for lawyers solving problems are measured in the hundreds of dollars per hour of time spent.
Real estate transactions and issues with inheritances are economically significant enough that the cost of a lawyer is justified. Personal injury claims work economically where the compensation likely attainable is large enough to justify legal fees.
Criminal law and family law are more problematic. Criminal law problems undoubtedly require legal assistance but accused persons often cannot afford the fees. As a society, we (mostly) address the importance of criminal law problems and the inability of those with criminal law problems to pay for legal assistance through legal aid.
Family law is the problem child from the lawyers perspective. The issues are difficult enough to justify legal assistance. People often cannot simply choose to ignore the family law issues whether because custody of children is at issue, support is needed or assets are being divided. Most people don’t use lawyers for family law problems. Not because they don’t want to but rather because they can’t afford to pay what turns out to be a large and unpredictable cost.
As for the remaining 85%, the fees of the legal expert are out of proportion with the size of the problem to be solved and, unlike criminal or family law, the public isn’t forced into the legal system.
What to do about the 85%?
So what to do? We could ignore the 85% and hope that no one notices. This seems to be the current approach.
We could hope that society comes to see these legal needs as being as compelling as health or education and provide legal aid funding. There are two problems with this approach. First, it won’t happen. Second and more important is that it is wrong to require society to pay for solutions the cost of which is disproportionate to the problem addressed. Even people with sufficient resources generally do not use lawyers for these problems because of the cost benefit equation. The business model of the small business lawyer does not provide an efficient way to address the 85% whether privately funded or funded by legal aid.
We could (and in Ontario have) allow regulated paralegals to address a portion of the 85%. While the business model is essentially the same, paralegals charge less and so can efficiently address some of the 85%. Small claims court work is a good example. But the advocacy provided by regulated paralegals solves at best a small part of the 85% puzzle.
There are two remaining choices. Neither will be attractive to practising lawyers. The first is to end the monopoly. If lawyers and regulated paralegals can’t efficiently address over 85% of legal problems then it makes sense simply to get out of the way. It makes no sense to prohibit anyone but a member of the Law Society from doing work that members of the Law Society don’t do.
The alternative choice is to encourage innovation by regulatory liberalization permitting other ways of delivering legal services. Having small businesses spend expert professional time on problems is not the only way to address problems. Technology and business processes can provide lower cost solutions. Larger businesses with scope and scale can deliver services in a way that the small business professional cannot.
My preference is to allow new ways of providing legal services under regulatory supervision. I am uncomfortable with the deregulation alternative. But I don’t see how doing nothing is acceptable.
Returning to the 15% (actually the 11.7%)
Criminal, family, wills and powers of attorney, real estate and personal injury problems make up the 11.7% of justiciable problems for which the public turn to lawyers for assistance. These are problems that lawyers see and seek to solve for their clients.
For criminal law, there is a clear issue of access to justice. But the answer is mostly, if not entirely, proper legal aid to ensure that competent criminal lawyers are engaged to protect fundamental constitution rights.
For real estate transactions, there is no reason to think that access to legal services is an issue. While there are likely efficiencies available through new ways of providing legal services, the issues in real estate law aren’t really about access.
For wills and powers of attorney, the issue is a bit more complicated. For those with property of sufficient value, the current system no doubt works reasonably well in terms of access. As in real estate, services could likely be more efficiently. But, it is also clear that the majority of Canadians do not have a will nor a power of attorney. For the majority of Canadians, wills and powers of attorney are in the 85% not the 15%. But lawyers do not see this as an issue because lawyers ably serve the minority of the public who have sufficient assets in their estate or a sufficient inheritance to justify paying lawyers’ fees.
For personal injury law, the contingent fee substantially addresses the access issue. However, the small business professional model limits the risk that can be taken by personal injury lawyers. With limited capital and limited volume, personal injury lawyers inevitably will tend to take on claims that are most certain to pay off. And it is common that clients are required to fund disbursements which may or may not be affordable.
The greatest access problem in the 15% is in family law. Family law litigants often start off with a lawyer but then try to represent themselves because legal fees are large and unpredictable and the amount of the family assets do not justify the legal fees. Professor Macfarlane’s research indicates that 70% of family law litigants are unrepresented. It seems that many start in the 15% but most end up in the 85%. Family law lawyers do not have the volume of business or the working capital to work on a fixed or predictable fee basis. The hourly rate legal model is unable to reduce price without reducing lawyers incomes. Technology and process innovation are not brought to bear because of lack of investment capital and expertise.
Improving access to justice in family law is complicated. Part of the answer may be allowing paralegals to do some of the advocacy work that is no longer being done by lawyers. Part of the answer may be in reducing the complexity of the process by which family law disputes are resolved. But there is reason to think that allowing evolution of business structures can be part of the solution as well. In Australia, firms which have taken advantage of access to external capital are now providing fixed fee family law services. As well, the well-capitalized Australian firms (e.g. Shine Lawyers, Slater & Gordon) fund disbursements in personal injury matters as well as fees.
To return to the beginning, it seems that it can be difficult for lawyers to appreciate the access issues that exist in our legal system. This may be because our perspective is inherently limited and we are rightly proud of that which we do. There is also a natural fear of change and, for some, a tendency to exaggerate how well things are going and how badly things could be if the status quo is not maintained. In my view, there is a compelling need for reform to advance access to justice. The scholarly thinking (e.g. Hadfield, Semple) and the actual evidence shows benefit, not harm, from allowing new ways of providing legal services. We actually need to change.
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:
 Occasionally a seemingly innocuous event can have tragic consequences.
 On the morning of December 4, 2006, the plaintiff, an emergency room physician, was driving his Honda Accord (“Honda”) eastbound on Lorimer Road from his home in Whistler, British Columbia to the Whistler Health Care Centre (“WHCC”). It was cold and snowing. The roads were slippery. The traffic light at the intersection of Lorimer Road and Highway 99 (the “Intersection”) was red in his direction. The plaintiff stopped.
 When the light turned green, the plaintiff began to move forward. However, a highway snow plow truck (“Snow Plow”) proceeding northbound on Highway 99 slid into the Intersection, blocking the plaintiff’s eastbound route.
 The offender in the identified hypothetical would have a prior conviction for a designated drug offence which may be more than ten years old. He or she is likely an addict but may instead be a recreational user of drugs. That is a personal characteristic which is not relevant to a reasonable hypothetical. All sorts of drug users share drugs. A one year jail sentence for this hypothetical offender goes well beyond what is justified by the legitimate penological goals and sentencing principles of the CDSA. It is a sentence which Canadians would find abhorrent or intolerable. Accordingly, I find that the mandatory minimum sentence of imprisonment for one year required by s. 5(3)(a)(i)(D) of the CDSA constitutes cruel and unusual punishment.
 On January 25, 2005, the appellant, Ajitpal Singh Sekhon, was charged with unlawfully importing cocaine and unlawfully possessing cocaine for the purpose of trafficking. He was arrested when he attempted to cross the border from Washington State into British Columbia. The key issue at trial was whether Mr. Sekhon knew about the cocaine that was secreted in the pickup truck he was driving. The trial judge found that he did. He based his decision in part on the testimony of an expert police witness who testified about the customs and practices of the drug trade. One aspect of the expert’s evidence strayed beyond the proper scope of expert testimony. As such, it was inadmissible and should not have been relied on by the trial judge.
 The flawed testimony upon which the trial judge relied forms one sentence of a 16-page judgment that is otherwise flawless. In particular, the trial judge provided a long list of reasons for disbelieving the appellant and rejecting his testimony as incredible. And apart from the one aspect of the expert’s evidence that he should not have considered, the trial judge provided an equally impressive list of reasons for concluding that the appellant was aware of the cocaine secreted in the pickup truck.
 In the end, the only issue of concern is whether the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, can be applied to sustain the convictions. I believe it can. While the error relating to the flawed expert testimony cannot be swept aside as harmless, the evidence establishing the appellant’s guilty knowledge — and thus his guilt — is overwhelming. Hence, the second branch of the curative proviso can safely be applied to sustain the convictions.
The most-consulted French-language decision was Quebec (Agence du Revenu) v. Services Environnementaux AES inc. 2013 CSC 65
 Ces appels soulèvent des problèmes liés à la détermination de la nature et de la portée d’ententes intervenues entre des contribuables relativement à la réorganisation d’entreprises, à des planifications fiscales et aux effets de ces mesures à l’égard du fisc. En bref, dans ces deux affaires, des actionnaires de sociétés commerciales effectuèrent diverses transactions pour procéder à la restructuration de ces sociétés et la cession d’intérêts dans celles-ci. Leurs ententes devaient être réalisées sans produire d’incidences fiscales. À la suite d’erreurs commises par les conseillers fiscaux des contribuables en cause, l’Agence du Revenu du Québec (« ARQ ») et l’Agence du Revenu du Canada (« ARC ») établirent des avis de cotisation réclamant des impôts imprévus par ces contribuables.
 À la suite de l’établissement des avis de cotisation dans ces deux dossiers, les parties concernées s’entendirent pour corriger les documents relatifs à leurs ententes afin d’obtenir l’effet de neutralité fiscale qu’elles recherchaient. Elles demandèrent à la Cour supérieure du Québec de rectifier leurs documents originaux, lesquels ne reflétaient pas selon elles leurs véritables ententes. La Cour supérieure rendit des jugements contradictoires dans ces dossiers, accordant la demande de rectification dans l’un 2009 QCCS 790 (CanLII), (2009 QCCS 790 (CanLII)) et la rejetant dans l’autre 2010 QCCS 1576 (CanLII), (2010 QCCS 1576 (CanLII)). La Cour d’appel du Québec fit droit dans les deux cas aux demandes de rectification visant à donner effet à la volonté réelle des parties 2011 QCCA 394 (CanLII), (2011 QCCA 394, 2011 D.T.C. 5045; 2011 QCCA 954 (CanLII), 2011 QCCA 954 (CanLII)). Pour des motifs différant en partie de ceux de la Cour d’appel, je rejetterais les pourvois de l’ARQ, déclarerais que les intimés pouvaient modifier leurs conventions et constaterais cette modification.
* 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.
Here is an update on the Neocodex Project, announced last year by Dr. Sergio Puig of Stanford University and Dr. Enric Torrents of the Autonomous University of Barcelona.
is a collaboration between researchers and professors from Stanford Law School, Royal Melbourne Institute of Technology, Université Pierre et Marie Curie and other institutions to develop open source technology for integrating, analyzing and making available information from all international courts and national jurisdictions in open linked data standards, including the automated processing, analysis and visualization of social networks (neutrals, litigants, and other entities), semantic networks (citations, case-law contents, legal knowledge) and the publication of corpus collections with added metadata.
The project has a Twitter account: @hackthelawcode
The project has received a resource allocation on the Open Science Data Cloud, and was described in a recent post by Walt Wells at the blog of the Open Cloud Consortium: OSDC Project Spotlight: Neocodex – Legal Data on a Global Scale.
Second prize goes to Garrett Schure for Translate U.K. and U.S legislative documents to Akoma Ntoso, consisting of a written analysis of “a Perl/LibXML mapping of U.K. and U.S. legislative documents, with a set of scripts to add additional semantic and analysis markup.”
Here is a description of the challenge:
[...] The Legislative XML Data Mapping Challenge invites competitors to produce a data map for US bill XML [i.e., the U.S. House XML Legislative Document Type Definitions, Schemas, and Samples] and the most recent Akoma Ntoso schema and UK bill XML [i.e., Crown Legislation Markup Language schema] and the most recent Akoma Ntoso schema. Gaps or issues identified through this challenge will help to shape the evolving Akoma Ntoso international standard. [...]
The judges of the challenge were:
My team has nearly finished with our project rolling out the new WestlawNext Canada platform. So far the response to the new site is positive. WestlawNext Canada has a lovely new feature along side the new all-in-one search box that will be interesting to Slawyers.
Within WestlawNext Canada a user can create folders to store information like full documents or snips from a WNC content (cases, legislation, texts and annotations as well as journal articles). Sharing a folder with colleagues within the firm is also available.
While I like the concept of sharing folders full of research bits with other WNC users in my firm, I am a bit surprised that this doesn’t have as much initial uptake as I expected. Perhaps my expectations were out of line with the reality of the learning curve for a new platform. While there is nothing terribly difficult, WNC does have a different philosophy underpinning the site than Westlaw Canada. With Westlaw Canada the philopsophy was browse or search within a collection. WestlawNext Canada is based on finding all kinds of relevant results regardless of the source type.
There are many shortcuts and advanced user processes that are available within every tool – WNC included. Perhaps once the learning plateaus, the functionality of organizing research in folders and sharing folders to collaborate with team members will catch on.
Most of you will have heard of the controversial figure skating win of Russian teenager Adelina Sotnikova who won the Olympic gold medal last week beating out Yuna Kim of South Korea, despite many stylistic errors and fumbles. Many media outlets and fans were surprised to say the least at what appeared to be clear favoritism on the part of the Russian judge. The South Korean Olympic Committee has already sent a protest letter to the International Skating Union, and a petition is posted on Change.org calling for more accountability in sports judging.
But what legal recourses do athletes have at their disposal if they do not agree with a decision of the Olympic Committee or another sports organization and wish to have that decision reviewed or annulled?
The most effective and direct way to bring an Olympic Games dispute to a decision-making body is through the officially established sports arbitration process.
According to article 61 of the Olympic Charter, added in 1995 just in time for the Atlanta Games, disputes arising in connection with the Olympic Games are submitted exclusively to the Court of Arbitration for Sport (CAS) in accordance with the Code of Sports Related Arbitration (Code). The CAS was established as part of the International Olympic Committee (IOC) in 1984. Disputes are also submitted to the court of arbitration when an arbitration agreement between the parties provides recourse to the CAS. Generally speaking, the two types of disputes which are submitted to the CAS are commercial (contractual disputes, sponsorship rights, etc) or disciplinary (anti-doping, violence on the field, etc) in nature. Standard Court and arbitrator fees apply before each dispute is submitted to the CAS. The CAS has a list of approximately 300 arbitrators from 87 countries who sit on its arbitration panels.
The Code governs the two main sports disputes bodies, the CAS and the International Council of Arbitration for Sport, whose seats are both in Lausanne, Switzerland. Interestingly, temporary or ad hoc courts are established in Olympic host cities in order to resolve certain punctual disputes through mediation or arbitration. Decisions of the CAS can be appealed to the Swiss Federal Tribunal.
Although case law was scarce in the early years, the CAS now generally renders judgments every few days. The CAS’ website reports on the numerous decisions it publishes, in such matters as anti-doping and contestations regarding the selection of athletes for competition. The CAS has general appeal jurisdiction for all anti-doping rule violations. Just yesterday, the CAS affirmed the eight-year suspension of cyclist Patrick Sinkewitz for anti-doping violations, and imposed a fine of 38,500 Euros.
Although the CAS has very rarely overturned referee and scoring decisions, its broad jurisdiction would technically allow it to do so in the Sotnikova/Kim case. One of the only times the CAS was called upon to resolve a judging scandal was during the Salt Lake City 2002 Winter Games, during which Canadians Jamie Salé and David Pelletier lost the gold medal to a Russian skating team, despite comparable scores – a situation very similar to the Sotnikova/Kim controversy. After final judging, the Canadian Olympic Association applied for preliminary relief to the ad hoc division of the CAS which had been established for the purposes of the Olympic Games. The COA alleged that certain of the judges had been pressured to vote in a particular manner. Significantly, it applied to U.S. courts to issue subpoenas in aid of arbitration compelling witnesses to give evidence in front of the CAS. This was the first time that common law courts were asked to come in aid of the sports arbitration process.
The Salt Lake City scandal also illustrates the speed with which application will be considered by the CAS. Ad hoc committees established by the CAS have a 24-hour dispute resolution policy, meaning that certain urgent matters may be resolved within a day, on a summary basis, similar to the way safeguard motion and provisional injunctions are dealt with in regular court. Some of you will recall the case of Ross Rebagliati, the Canadian snowboarder who tested positive for marijuana use at the 1998 Nagano games, and who was stripped of his gold medal 3 days after he won. Following the decision of the IOC, a panel of three arbitrators from the CAS was assembled and decided the next day that Rebagliati could keep the gold.
It remains to be seen whether last week’s skating controversy will be brought to the attention of the sport arbitral process. For the moment, it is being played out in the media and by way of informal petitions.
Data stored in an insecure online location for nearly a year exposed personal information on 146,000 students and recent graduates of Indiana University, officials said on Tuesday. The lapse occurred in the registrar’s office when a data file was placed in the wrong folder; it was discovered by an employee last week.
There is no evidence that the university was the target of a cyberattack, said Bradley C. Wheeler, vice president for information technology and chief information officer for the eight-campus system. No servers or systems were hacked.
“What we do know is that a bot indexed them,” Mr. Wheeler said of the data. “We do know one bot downloaded some into a cache. We have no evidence that anything happened from the cache there. This is not like incidents where there is very good forensic evidence that a file was taken.”
The data included names, addresses, and Social Security numbers of students enrolled across the system from 2011 to 2014. No credit-card data were involved, Mr. Wheeler said. The university reported the exposure to the Indiana attorney general’s office on Tuesday. Affected students are being notified now, university officials said. A hotline and a website are being set up to answer questions, and to supply information on how to monitor credit accounts.
The incident at Indiana comes on the heels of a cyberattack last week at the University of Maryland in which personal information on more than 300,000 students and faculty and staff members was stolen. The perpetrators must have had a sophisticated understanding of the university’s multilayered cybersecurity infrastructure in order to breach the system, Brian D. Voss, vice president for information technology at Maryland, told The Washington Post.
Too often, litigation disputes are like two ships passing in the night. The first salvo describes in great detail the relevant facts and applicable law. The opponent’s response then covers the very same ground, emphasizing the facts and law that are favourable to it – often with very little to no references to the opponent’s points of view.
Our goal as advocates is to advance our client’s case as effectively as possible. Unlike advocates, though, a judge’s job is to balance the different points of view to reach the best result. The judge needs help to decide who is right and wrong.
Candor is an extremely useful advocacy tool that is too frequently underutilized. Don’t be afraid to tell a judge that a case involves difficult legal issues, or controversial factual questions. Recognize your opponent’s valid concerns. By dealing with these difficult questions head-on, you are implicitly telling the judge: “I am an advocate, but I want to help you. Some of these questions are indeed difficult, but my proposed resolution on behalf of my clients is the best solution.”
This familiar admonition sounds pretty simple in theory. Yet there are still so many litigators that are hard-wired to fight about every issue that it is a drastically underutilized tool in practice.
Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on technology, research and practice.
Back Up Your Cloud: How to Download All Your Data
On at least a few previous occasions (here and here), I have written about the necessity of backing up your personal data, pictures and contacts, regardless of where they . . .
One of the things we don’t talk about much on the legal research side of things here at Slaw Tips are Regulations. Regulations are a form of delegated legislation mad . . .
Time to Say Goodbye…
David Bilinsky & Garry Wise
April 8, 2014 is a significant date for users of Microsoft XP and Office 2003. On that date, support ends for both of these venerable and well-loved products . . . .
[Vocabulary Watch] ‘Brainspray’ – Electrical and other signals given off by the brain that are detectable – and increasingly usable – for various purposes.*
Science, medicine and commerce
It is widely known that much of the functioning of our brain is done by electrical impulses, or at least that its functioning creates electrical impulses. Since the invention of the electroencephalograph (EEG) many decades ago, these impulses have been measurable. In recent years, they have become subject to increasingly subtle interpretation as well. Science is beginning to know what the measured impulses mean and to be able to use them.
At one time, it was a matter of detecting brain activity or lack of activity. Here, for example, is an EEG of a brain before and after meditation. (Here is an apocryphal variant.) Science has moved on…
It has been known for some time that some of the brain’s electrical impulses were commands to parts of the body to move. As this knowledge has become more precise, it has had both medical and commercial applications. On the medical side, scientists have managed to capture mental motion commands and convey them by computer to prosthetic limbs, allowing patients to move their artificial limbs by mental command. More recently, signals are flowing in the other direction, to allow sensations to the brain generated from an artificial hand. It was recently announced that the opening ball for the World Cup in Brazil this year would be kicked out by a paraplegic boy who will command an exoskeleton for the purpose by mental control.
On the commercial side, one can now buy a toy helicopter controlled by an EEG headset, which transmits brain waves to the control centre. Players of other games move characters on a screen by thinking of what the characters should do. Possibilities are beginning to multiply.
The novelty here is the ability to know what the brainwaves mean, what they are intending to command. Once they have that meaning, then the transfer to a machine is just a matter of comparing known patterns, no different in principle from deciding if a recorded fingerprint is the same as one offered for comparison. One programs the game to move in a particular direction when it receives a certain signal. When the signal is detected, the game moves. The difference in these examples is that the pattern generating the signal is coming directly from a brain, not from a computer – or in some cases from the brain to a computer to the machine.
Mental commands can also be given to live beings. A rat in Brazil learned to solve a maze and taught a rat in the United States to do it by mental signals transmitted over the Internet. Humans have controlled the motions of rats by sending mental signals. And a scientist sitting at a game console used the Internet to send the brainwaves reflecting what he thought his hands should do to a colleague in a different building, who successfully played the game without seeing it. The signals were captured coming out of the first player’s head and transferred into the second player’s head and thence to his hand, all without any surgery or physical implants. This is a step beyond ‘simple’ pattern comparison and recognition.
Consider again that scan of the meditative brain. Scientists are increasingly able to detect emotions through the reading of magnetic resonance imaging (MRI) scans. We know what the brain activity means to us internally, and not just to our physical interactions with the world we live in. At present, MRI machines are bulky and require subjects to lie still for long periods. As they become more convenient and mobile, however – and who will bet they will not? – people’s emotions may become more accessible than they are today, when one may be able to conceal them. As Ted Claypoole has said, ‘mass acceptance and use of this technology would ruin poker as we currently know it.’
So far, the technologies described here are reading brainwaves, not thoughts. But as the brainwaves disclose more and more complex emotions, at least some thoughts will become fairly transparent. (It is a bit like using metadata to deduce the content of written messages.)
Clearly all the phenomena described above involve the collection and use of brainspray, and possibly its disclosure. What legal issues arise, or will arise as the collection and use become easier?
The collection we are dealing with here does not involve cutting into the body. Medical battery would normally not be at issue. Consent to any touching has to be informed consent. How much does a person have to know about the capacity of an electronic headband to ‘inform’ his or her consent to its use? The legal impact will probably be elsewhere than in this aspect of criminal law.
Privacy issues are among the clearest legal impacts of these technologies. We are talking about collecting and using, and in some cases disclosing, the product of one’s mind. Almost all provinces have legislation dealing with personal health information, and the definition of that term could well extend to brainspray. Ontario’s Act speaks of information about an individual that ‘relates to the provision of health care to the individual’. Signalling to prosthetics would seem to fall into that class. Several provinces include ‘ information with respect to the physical or mental health of the individual’. Brainwaves used as therapy would arguably fall into this class. New Brunswick (and others) include identifying information that ‘ is derived from the testing or examination of any body part or bodily substance.’ Brainspray is unlikely to be considered a body substance, but the brain is clearly a body part, and analyzing or collecting brainwaves would constitute its examination.
The substantive obligation under these statutes is to ensure that the personal health information is not collected or used without consent. The basic treatment described here would normally be consented to. Are there other uses? Would the maker of a brainspray-controlled prosthetic device want to keep the records of the brainspray to help refine the device’s responsiveness? Presumably that could be covered by a contract, and it would need to be. (There might be intellectual property questions too: do a person’s mental commands end up as part of a commercial product in the development process? Are they, or do they become, somebody’s property?)
What of brainspray used to control games or otherwise not captured for the health of the individual? It must be information about an individual; it is the product of a person’s brain. How much more personal can information be, even if it is only commanding an electronic avatar to jump? Again, it may be in the interest of a game developer to capture the commands, for the purpose of refining the controls. Would that be a commercial use of the personal information, within the meaning of PIPEDA? Could the brainspray be anonymized beyond the reach of that statute?
We have seen that the brainwaves can be transmitted over the Internet, to rats and to humans. This might happen without the knowledge, or at least active intervention, of the person whose brainspray was being captured and transmitted. One will have to read the licence conditions of these games closely: are my brainwaves being sent to a corporation somewhere to improve its products? Are there less benign uses that might be made?
These questions will become more interesting, and perhaps harder, as technology allows the capture of brainwaves without physical contact. Once one can collect this information without the knowledge of the subject, will the law allow it? How will one even know that the information is being collected? It’s the Google Glasses question in overdrive.
What legal effect will be given to the interpretation of brainspray? Will employers be able to show cause for dismissing an employee by demonstrating recorded disloyalty or a ‘poisoned atmosphere’ through his or her thoughts? Employers are allowed to use employees’ Facebook posts as grounds for dismissal, though there are limits to their ability to require disclosure of social media content. What limits will apply to brain signals?
How persuasively will someone be able to deny his or her own thoughts? If someone reads my mind, have I published what they read, for the purpose of defamation law? On the other hand, might people be liable for the consequences of mistaken interpretations? How reliable will interpretations have to be in order to ground liability? Is the science close to a balance of probabilities?
It was noted here last year that if computers can talk to each other, they can be overheard. The same must be true even if one of the ‘speakers’ is someone’s brain. If signals can be intercepted, they can be interfered with. What happens when the wrong signals are sent to someone’s brain, or hacked and altered signals are received from a brain? Are the liabilities any different from hacking into someone’s pacemaker or insulin pump? The consequences can surely be as severe.
Criminal law punishes actions, not mere intentions, but will people attract more attention from law enforcement authorities because of what they are thinking? Will the police need a warrant to check brainspray? Will our ‘reasonable’ expectations of privacy evolve with the technology, here as elsewhere, or will courts find our brains an inviolable redoubt of basic dignity to be protected?
The prospect of profits drives innovation. Will merchants want to read brainspray of prospective customers (emotions often count more than analysis in such matters) either to make sales, to know when to press one’s opportunities, or on the other side of the ledger, to figure out who may have been shoplifting? If such activities would need consent under PIPEDA, would merchants be prepared to offer incentives to customers who agreed to have brainwaves captured, at least for the duration of their visit? Would you accept a ten percent discount to let the merchant or brand owner measure your satisfaction with your shopping experience?
PIPEDA allows collectors of personal information to rely on consent only for purposes ‘that a reasonable person would consider appropriate in the circumstances.’ (s. 3) When does collection of mental data become inappropriate? Are databanks of brainspray conceivable, and likely to be useful, and likely to survive PIPEDA s. 3 scrutiny?
Coming to a brain near you
You may be thinking that these questions are barely even hypothetical at this stage of technological development. Perhaps they are. But reread the description of what’s real today and think whether any of them would have seemed conceivable a dozen years ago. Do you think we have a 20/20 vision of 2025? The law is adaptive. It will need to be, to deal with the consequences of the foreseeable uses of brainspray.
* The term was invented by technology lawyer Ted Claypoole of Charlotte NC to give a common name to phenomena studied by different branches of science, engineering, gaming and commerce. ‘Regulating the Brainspray Revolution’, Business Law Today, American Bar Association, November 2013 (online, for Section of Business Law members).
Injunctions are a powerful remedy that are sought and granted in a wide range of disputes.
An employer might seek an injunction to stop a former employee from soliciting the employer’s clients. A business may seek an injunction to stop a competitor from unfairly using a registered trademark. Your neighbour may seek an injunction to stop you from cutting down that hideous tree in your back yard that provides oh-so-much shade and privacy for your neighbour, or perhaps they may seek a mandatory order requiring you to cut down that same hideous tree that they view as an eye-sore.
A recent Court of Appeal decision provides a quick overview on (almost) everything you wanted to know about civil injunctions.
Here is your injunction cheat sheet, courtesy of Justice Gillese who wrote the decision for the unanimous court.
An Interim Injunction
Can be requested with or without notice to the opposing party. Argument in front of the judge is usually quite limited. If the injunction is granted it is typically for a brief, specified period of time. When an interim injunction is granted without notice it usually requires the party seeking (and obtaining) the injunction to return to court (on notice to the opposing party) to have the interim injunction continued. In practice, interim injunctions are often used to preserve the status quo for a short period of time until an interlocutory injunction can be argued.
An Interlocutory Injunction
Like the interim injunction, the interlocutory injunction is a form of pre-trial relief. An interlocutory injunction is an order restraining the defendant from engaging in conduct for a limited period of time, such as until the trial or other disposition of the lawsuit. Argument in front of the judge is typically more thorough than that for an interim injunction and the duration is generally longer than that of an interim injunction.
A Mandatory Injunction
A type of injunction that requires the defendant to act positively. Mandatory injunctions are rarely ordered and must be contrasted with the usual type of injunctive relief, which prohibits certain specified acts as opposed to imposing an obligation to act positively. Due to their nature, mandatory injunctions are often permanent.
A Permanent Injunction
Interim and interlocutory injunctions are imposed in ongoing cases. Permanent injunctions are granted after a final adjudication of rights.
The Legal Tests
For lawyers, the legal test for interim and interlocutory injunctions is well known and was set out by the Supreme Court of Canada 20 years ago (the “RJR-Macdonald Test“). The court must decide (1) is there a serious issue to be tried; (2) would the moving party otherwise suffer irreparable (i.e. not compensable with $$$) harm; and (3) does the balance of convenience favour granting the injunction.
Justice Gillese clarified that the test for a permanent injunction is not the same as the RJR-Macdonald Test. The Ontario Court of Appeal adopted a test set out recently by the British Columbia Court of Appeal. In short, in order to obtain final injunctive relief, a party is required to establish its legal rights. The court must then determine whether an injunction is an appropriate remedy. Irreparable harm and balance of convenience are not, per se, relevant to the granting of a final injunction, although those issues may come into play.
The conference is presented by CodeX: Stanford Center for Legal Informatics.
Tim Hwang, JD, is Chair of the conference.
Here is an overview of the program:
Keynotes: Richard Susskind and Michael Genesereth
Forging an Open Legal Document Ecosystem
Managing Legal Marketplaces
Rebuilding Legal Education
Legal Technology in the Public Interest
Legal Ethics in the Age of Machines
For more details, please see the conference Website.