LastPass Hacked; Don’t Panic, but Change Your Master Password

The Lawyerist - Mon, 06/15/2015 - 14:26

While the LastPass “vault” (where your encrypted passwords are stored) is safe, LastPass was hacked:

LastPass account email addresses, password reminders, server per user salts, and authentication hashes were compromised.

Related “Why Password Security Matters”

That sounds bad, but LastPass says no password vaults were accessed, and that means your passwords are still safe.

Just in case, LastPass is requiring email verification when logging in from a new device or IP address. It will also prompt users to change their master password (the password you access LastPass, not the passwords stored in LastPass).

If you’re a LastPass user, you might as well do that right now.

(h/t Tony Webster)

LastPass Hacked; Don’t Panic, but Change Your Master Password was originally published on Lawyerist.

Categories: Teknoids Blogs

Minnesota Bar Task Force Supports Licensing Non-Lawyers

The Lawyerist - Mon, 06/15/2015 - 13:48

Two years ago, the Minnesota State Bar Association launched two task forces to study the future of law practice and legal education. Those reports will be made public at the MSBA Annual Convention next Friday, but Lawyerist obtained copies ahead of schedule. Here are the highlights.

Limited License Legal Technicians

In its report (pdf), the MSBA Task Force on the Future of Legal Education says the MSBA should consider establishing a limited-license legal technician (LLLT) certification in Minnesota. Here’s the substance of that recommendation from the Executive Summary portion of the report:

In order to identify a less costly path to a career in legal services and address unmet needs for specific types of legal services, the MSBA should establish a separate task force focused on studying the viability of certifying Limited License Legal Technicians (“LLLT”) with authority to provide supervised legal services in defined practice areas. This task force should consist of representatives from the state court administrative office, civil legal services and pro bono programs, private practices from diverse practice settings throughout the state, potential clients, and institutions of higher education (including, but not limited to law schools). The task force should prepare a recommendation to the MSBA Assembly on the question whether to submit a petition to the Minnesota Supreme Court to establish an LLLT practitioner rule by June 2016.

This idea is based, of course, on Washington’s LLLT certification. In Washington, LLLTs can handle certain tasks in certain practices areas (currently just family law). In the ABA’s new book, The Relevant Lawyer, Paula Littlewood and Stephen Crossland lay out the LLLT certification and what it means. Here’s a quick summary.

The schooling to become certified as an LLLT is a one-year (as far as I can tell) program that costs about $15,000. Prospective LLLTs must also complete a 3,000-hour “practicum” under the supervision of an attorney before, during, or after taking courses or the exam. Once certified, LLLTs can operate solo, as part of a firm, or own a minority share of a firm together with a licensed lawyer. They have their own set of ethics rules, but in general they are held to the same standard of care as a lawyer. They just can’t do as much. So far, there are just 7:

I don’t know if it’s safe to assume more will sit for the second exam this fall, but that’s the next opportunity to become certified as a Washington LLLT.

Other states are working on similar things, but this may be the first time it has been mentioned in Minnesota, and on an aggressive timeline. A year from now, Minnesota may join Washington in certifying non-lawyers to practice law.

Challenges to the Practice of Law

Another Minnesota task force, the MSBA Challenges to the Practice of Law Task Force, made its own report (pdf). The recommendations include:

  • Guidance for lawyers (in the form of an ethics opinion) on ethics and the cloud.
  • A mentoring program to focus on professionalism with CLE credit for participating.
  • Increased UPL enforcement.
  • Incentives for lawyers who move to rural areas to practice.
  • Encouragement of alternative fees and business models.
  • Of course, the establishment of another committee, this on a standing committee on technology to help guide lawyers into the present (and, optimistically, the future).

There’s more, but the report is probably interesting mostly to Minnesota lawyers who are optimistic about the MSBA’s ability to adapt. It feels like a step in the right direction, but as MSBA President Richard Kyle observed, the bar association is in a “race for relevance.” It also might be too little, too late. Time (but not much of it) will tell.

Featured image: “Line of dominos falling down after being pushed by finger” from Shutterstock.

Minnesota Bar Task Force Supports Licensing Non-Lawyers was originally published on Lawyerist.

Categories: Teknoids Blogs

Communications Breakdown: When a Lawyer Doesn’t Listen

slaw - Mon, 06/15/2015 - 11:21

A study for the Law Society of England and Wales by Hilary Sommerlad, quoted in “What Clients Want” by Clark Cunningham, found that 50% of clients polled had worked with lawyers they did not like. The study concluded it was, more often than not, the way lawyers interacted with clients that was the issue. Indeed, the paper describes a true situation “where a specialist lawyer with a ‘big reputation’ had interrupted the client because she believed she had heard enough to ‘get the picture.’”

This had the unintended consequence of leaving the client too frightened to speak up in future meetings, and resulted in the lawyer not fully understanding the situation and what the client wanted.

“Listening is not something we as lawyers do particularly well,” says Judith Huddart, collaborative family lawyer at Dranoff and Huddart, Barristers and Solicitors.

When lawyers don’t listen or make assumptions of what the problem is without letting the client finish his or her side of the story, they run the risk of ignoring what the client really wants.

The England and Wales study showed effective communication also involves actively listening, which in turn boosts rapport, trust and mutual respect between the lawyer and client.

The study participants had more positive responses when they felt their lawyer listened to them. It allowed the lawyer to better understand the needs of the client and address them accordingly.

Stephen Pike, managing partner, external, at Gowling Lafleur Henderson LLP points to a recent bike-buying excursion with his wife to illustrate the point. They had done the research beforehand and had walked into the store convinced they knew what they wanted. The salesperson began asking them questions about how they planned to use the bike. After some extensive questions and answers – and attentive listening – the salesperson suggested a less expensive bike more tailored to the Pikes’ needs.

“It turned out to be perfect,” Pike says. “It was exactly the right bike.”

In 2014 the broad category of communications accounted for about almost a third of claims reported and claims costs. LAWPRO asked some lawyers to give their opinions on the various ways lawyer-client communications can break down in the article “Let’s Get Talking“, from the 2011 issue of LAWPRO Magazine. All past issues of LAWPRO Magazine can be found at lawpro.ca/magazinearchives

Categories: Teknoids Blogs

Settlement Counsel

slaw - Mon, 06/15/2015 - 10:47

It is often said in discussions on the future of the practice of law that the days of the general practitioner are numbered. Lawyers in the future must specialize.

One emerging specialty in Canadian civil litigation is that of settlement counsel.

A party to litigation retains two lawyers – one performs the standard role of litigation counsel whose objective is to successfully prosecute or defend the action. The goal of the other is to negotiate a settlement out of court.

The two lawyers work as a team. They share all of the same information. They communicate fully with each other and with the client.

There are clear advantages to this arrangement.

One is it removes the apparent conflict in the position of litigation counsel whose fees are usually calculated on the basis of time spent. Settlement, in particular early efforts, can substantially shorten a proceeding. If settlement responsibility can be handed off to an independent lawyer, at least the appearance of that conflict is removed.

By using settlement counsel a client can also have confidence that every appropriate effort to end the litigation early is being watched for and pursued.

When settlement discussions are referred to settlement counsel, litigation counsel’s focus and time in preparing for the hearing is not interrupted. Furthermore, as long as the arrangement is clearly spelled out to the opposing party, they know that trial preparation is continuing parallel.

Separation of the two roles may also help keep lines of communication open: the opening for settlement discussions often narrows, as litigation positions harden.

There is also the benefit that comes from any specialization: the more you do it the better you get. Over time separate negotiation and litigation specialties can be expected to deepen. This results in better service for the client.

Clients may recoil at the thought of two sets of fees instead of one. The extra expense will not be appropriate for every case. However clients will recognize there are significant savings to be had where cases settle early.

Further reading: The Canadian Case for Settlement Counsel; What Are Settlement Counsel?

 

Categories: Teknoids Blogs

12 Terrible CLE Audience Members (and How to Handle Them)

The Lawyerist - Mon, 06/15/2015 - 06:12

Being asked to present a continuing legal education seminar is a great way to establish credibility. During your session, most of the audience will be polite and listen attentively to your presentation. They won’t interrupt. Some will even take careful notes as you offer your timeless wisdom, but not all of them.

CLEs sometimes play host to strange audiences, especially as reporting deadlines loom. You may have lawyers in attendance who are not all that interested in what you have to say; they just need the mandatory credits and don’t care how they get them.

I have participated in and attended dozens of CLE’s. Here are some of my favorite types of audience members and how I would recommend addressing them if you are the speaker. If you get any of these attendees, try not to take it personally. Here’s what you can do about them.

12 Terrible CLE Audience Members (and How to Handle Them) was originally published on Lawyerist.

Categories: Teknoids Blogs

Urgent Interim Relief Available Under New ADRIC Arbitration Rules

slaw - Mon, 06/15/2015 - 06:00

One of the new features of the updated ADR Institute of Canada (ADRIC) Arbitration Rules, which came into effect at the end of 2014, is the express provision for “Urgent Interim Measures”.

Unlike Superior Court judges, arbitrators have no inherent jurisdiction. They depend upon the Act and the arbitration agreement for their jurisdiction. In some situations, it has been unclear whether an arbitrator has the authority to grant interim relief. In others, delays in the appointment of the arbitrator made it impossible to obtain urgent relief. If parties have to go to court for such relief, it may result in more cost and delay.

The ADRIC Arbitration Rules now include, in section 3.7, specific provisions for the appointment of an interim arbitrator and the granting of interim relief.

A party may apply to the Institute for Urgent Interim Measures either before a tribunal has been appointed –before or after a notice of request to arbitrate has been delivered – or if the appointment of an arbitrator has been challenged. This means a party can get urgent relief even if a procedural wrangle has delayed the arbitration.

The interim arbitrator can be appointed even if the tribunal’s jurisdiction is disputed, so a party can seek urgent interim measures in a situation where the other party is denying that the dispute is subject to arbitration or is refusing to co-operate in the appointment of an arbitrator.

The applicant must provide a statement of the interim measures it is seeking and the reasons why they can’t wait for the tribunal to be constituted. The application can be made on notice to the other parties to the arbitration, or if the circumstances warrant, it can be made without notice.

The Institute must appoint an interim arbitrator as soon as possible, normally within two days of receiving the application. Any challenge to the appointment must be made within 24 hours.

The interim arbitrator is required to set the procedure for the urgent interim measures application as quickly as possible, normally within two days of being appointed, and must conduct the proceedings in a manner that takes the nature and urgency of the application into account. The interim arbitrator is also required to take into account the fundamental purpose of the Rules, which state:

The Rules’ purpose is to enable parties involved in a dispute to reach a just, speedy, and cost-effective determination of it, taking into account the values that distinguish arbitration from litigation.

Rule 3.7 further states that the interim arbitrator’s decision must be make within 15 days unless the parties agree or the interim arbitrator orders otherwise.

This gives the interim arbitrator an explicit mandate to conduct the application for urgent interim measures quickly and expeditiously.

The determination of the application is made in the form of an order and is binding on the parties.

The interim arbitrator has the full authority and discretion to grant any interim relief he or she considers appropriate, taking into account the need for the requested relief, the urgency of the matter and the effect on the parties of granting or refusing the relief. This includes the power to grant immediate relief until a decision is made on the application for Urgent Interim Measures.

If interim relief is granted without notice, the interim arbitrator must give the other parties the opportunity to be heard as soon as practicable and the order is valid only until a further decision is rendered on notice to all the parties.

An interim arbitrator’s order does not bind the tribunal with respect to the issues decided in the order. The tribunal has full discretion to modify, terminate or annul an interim arbitrator’s order. So does the interim arbitrator, if either party requests it. The parties may pursue further claims related to the Urgent Interim Measures application, including recovery of the costs of the application and claims related to compliance or non-compliance with an order.

There are some limitations to the scope of Rule 3.7. It applies only to parties who are signatories to an arbitration agreement and their successors. And it does not apply if the parties have agreed to another procedure that provides for conservatory, interim, or similar measures.

Nothing in Rule 3.7 prevents a party from seeking interim measures in court, either before or after applying for Urgent Interim Measures under the ADRIC Rules.

I was appointed interim arbitrator in an application for Urgent Interim Measures earlier this year. It was a commercial dispute flowing from the termination of a contract and involved issues relating to the performance of the contract and the payment of outstanding invoices. The application for Urgent Interim Measures related to a request for the delivery of property that the applicant claimed belonged to it under the terms of the contract.

The application was dealt with in 15 days from the date of appointment to the date of the order. There is no doubt that this aggressive schedule was hard on the parties and their counsel. It was also a challenge for the arbitrator who had to review the material to prepare for a hearing and render a decision very quickly.

The evidence at the hearing included affidavits and exhibits from both sides, including significant detail about all of the issues in dispute, not just those relating to the interim relief that was requested. In most cases, I suppose, the equities claimed on both sides will include some of the broader issues in dispute.

A half-day hearing was held, at which each side had the opportunity to cross examine the other on their affidavits. Each side also provided the arbitrator with briefs of their legal arguments and made oral arguments at the hearing.

The order was delivered three days later.

The schedule was roughly this:

  • Day 1 – appointment of arbitrator
  • Day 2 – initial conference call with counsel to set schedule
  • Day 6 – response to application and respondent’s affidavits due (over a weekend)
  • Day 8 – reply affidavits due
  • Day 11 – factum due from each party
  • Day 12 – hearing
  • Day 15 – Order made

After the order was delivered, the parties sought clarification and amendment on certain aspects of the order. Beyond that, as far as the arbitrator is aware, the parties complied with the order and the arbitration did not proceed any further. Whether that means the other issues in dispute were resolved or not is not known.

A few additional observations:

As noted above, Rule 3.7 does not apply if the parties have agreed to another procedure that provides for conservatory, interim, or similar measures. This means that the typical arbitration clause that excludes certain matters from arbitration, such as injunctive relief or disputes over ownership of intellectual property, may preclude an application for Urgent Interim Measures. Courts often measure urgent relief in months, rather than days or weeks. Commercial lawyers may want to take another look at their standard arbitration clauses in light of the new ADRIC Arbitration Rules.

The 15-day deadline in the Rule is very aggressive. In almost every case, at least one of the parties (usually the respondent) will argue for extra time. In some cases, both sides may want more time. But the wording of the Rule is mandatory. The decision must be made within that time unless the parties agree otherwise, or the arbitrator decides more time is needed. Extensions can be granted, but the Rule implies that they should not be automatic and should be as short as possible.

Nothing in the interim order is final. Each party can ask the interim arbitrator for a further order, if they wish. And they can raise any of the issues again with the tribunal. This would seem to make it appealing for parties to seek Urgent Interim Measures where appropriate. They have very little to lose. If the relief sought is denied, the applicant can still seek the same relief from the arbitration tribunal. If relief is granted, it may effectively end the arbitration or at least take those issues off the table. On the other hand, the respondent can seek to have the order modified or annulled and can seek further redress from the tribunal if it disagrees with the decision of the interim arbitrator.

Categories: Teknoids Blogs

Monday’s Mix

slaw - Mon, 06/15/2015 - 05:00

Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. Blogue du CRL 2. Labour Pains 3. First Reference Talks 4. Pierre Roy & Associés Blogue 5. Susan on the Soapbox

Blogue du CRL
Devant quel district judiciaire une action dirigée contre le gouvernement doit-elle être intentée?

Afin de pouvoir répondre à cette question, l’honorable Gérard Dugré, j.c.s. remarque, dans Ressources Strateco inc. c. Québec (Procureure générale), 2015 QCCS 2443, qu’il faut premièrement répondre aux deux questions suivantes : qui est le défendeur en l’instance (à savoir le gouvernement ou la procureure générale du Québec) et quel est son domicile? …

Labour Pains
Supreme Court of Canada says Governments Cannot Prohibit Strikes by Providers of Essential Services

Can a provincial government prohibit strikes by “essential” workers and refuse to provide such workers with any sort of meaningful alternative dispute resolution process? According to a 2015 decision from the Supreme Court of Canada, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 the answer is “no.” …

First Reference Talks
Divergent movie raises interesting HR questions

Insurgent, the second film in the Divergent series, opened last April and hoped to make a big splash at the box office. Based on the books by Veronica Roth, the series depicts a dystopian future where young people are forced to survive crazy situations created by adults. …

Pierre Roy & Associés Blogue
Les appels de recouvrement cesseront-ils si je fais faillite ?

Recevez-vous sans cesse des appels de recouvrement ? Vos créanciers vous harcèlent-ils à toute heure du jour ? Vous voudriez que ces appels cessent pour de bon ? Si vous n’avez pas les moyens de payer vos dettes, la faillite et la proposition de consommateur sont deux solutions qui feront cesser les appels de créanciers. …

Susan on the Soapbox
Boycott Tim Hortons? Seriously??

The recent media frenzy generated by Tim Hortons’ decision to pull the Enbridge ads off their in-store Tims TV monitors almost drove Ms Soapbox to drink (G&Ts not Tims double double). Then she paused. The #BoycottTims brouhaha created a learning opportunity—for businessmen and conservative politicians alike.

_________________________

*Randomness here is created by Random.org and its list randomizing function.

Categories: Teknoids Blogs

All the Ways Your Legal Skills Can Be Used

slaw - Sun, 06/14/2015 - 21:48

A law degree opens doors. One of those doors is the internal reigns of a company or large corporation, the role we often refer to as general counsel (also known as in-house counsel).

The increased importance of general counsel in the business world is worth emphasizing. The sheer numbers of general counsel between the 60’s and 80’s quadrupled in America, and a moved from a middle management role to one directly involved in strategic management.

Mary Daly suggests that this shift occurred due to rising legal costs, and for this reason, this trend is unlikely to reverse. Lawyers found the role appealing as an escape away from the billable hour. The main functions secured by general counsel at the end of this growth period included:

  1. managing and reviewing legal services provided by outside counsel
  2. supplying routine legal services, and occasionally more complex work
  3. directly counselling clients on regulatory requirements
  4. creation of compliance program

Daly describes this shift in power as follows,

General counsel, not law firm partners, are now the “statesmen” to chief executive officers (CEOs), confidently offering business as well as legal advice.

The strategic function, and ability to proactively address issues, is also a factor that DeMott cites as a rise for the prominence of general counsel. According to Simmons & Dinnage, this intangible and non-transactional source of value is what allows modern corporations to enhance its value.

Simmons, Omari Scott and Dinnage, James D., Innkeepers: A Unifying Theory of the In-House Counsel Role (March 24, 2010). Seton Hall Law Review, Vol. 41, p. 77, 2011; Wake Forest Univ. Legal Studies Paper No. 1577907. Available at SSRN: http://ssrn.com/abstract=1577907

The tensions and competing responsibilities between the different roles of counsel also leads to ambiguity of function, and occasionally, shortcomings in the manner in which they perform their job.

For many of us outside of the role of general counsel, the ambiguity of the role means that we rarely understand the job fully, and it likely varies considerably depending on the organization in which the lawyer is functioning. To illustrate, Tanina Rostain states,

Despite the increased prominence of the lawyers who run the legal departments at major corporations, surprisingly little is known about their work.

Events like the Canadian General Counsel Awards (CGCA) help illustrate the wonderful work that these lawyers, often a step removed from the rest of the legal community, are engaged in.

General counsel can play an enormous role in shaping the culture and direction of an organization. They are shaped by the corporation they are in, but also shape these institutions as well. For example, the role of general counsel in promoting corporate social responsibility has been described as “pivotal,”

General counsel are ideally situated to serve as leaders in the struggle to define the parameters of corporate conscience. They can and should be held accountable for promoting integrity on the part of corporations and their constituents.

The CGCA makes particular effort to recognize a company successful in social responsibility, providing this year’s award to Telus.

The pressures to be a “team player” means that if a relationship is too close it can compromise the ability to provide objective legal advice, in particular when that advice creates obstacles for the accomplishment of particular business objectives.

Greg MacKenzie of the 407 ETR Concession Company Limited, a finalist for both litigation management and mid-market excellence, illustrated this sentiment when he told me at the CGCA, “It’s all about the team.” The desire to work on a team though is also part of the interest for many lawyers in moving into these positions.

DeMott cites the following factors for the appeal of working as general counsel:

  1. the fit between the general counsel’s position and an individual lawyer’s talents (the “fit” hypothesis), where the lawyer experiences growth in skills and functions, while the company benefits from the legal expertise
  2. the prospect that service as general counsel may furnish a good launching pad into other positions
    within senior management (the “launching pad” hypothesis), including the CEO
  3. the position’s anticipated economic rewards (the “economic rewards” hypothesis), by comparing benefits such as stock options available to general counsel, which are not available to partners in the firm
  4. the contrast with partnership in a large law firm (the “law firm contrast” hypothesis) beyond the economic rewards, in particular, greater collegiality in the work environment for general counsel

One lawyer who used her legal career as a launchpad is Shannon Rogers of Global Relay. Rogers worked for a large Bay Street firm before joining the B.C. startup, founded in 1999.

She was told by a managing partner at the time that this move was a death to her career that she would regret forever.
Instead, she grew with the company into international markets by focusing on electronic message recordkeeping and supervision through technology and compliance for legal and audit purposes.

“Stay open to all the ways your legal skills can be used,” said Rogers, the recipient of the 2015 CGCA Business Achievement Award.

The presence of women as general counsel in particular may have been a response to institutional barriers within law firms. Giesel theorizes that the presence of women in these general counsel positions “should positively affect the success of women in law firms, the law firm environment, and the status of women in the legal profession.”

Hugh and Sally Gunz examined the potential conflict between strategic decision making and professional responsibility among the membership of the Canadian Corporate Counsel Association (CCCA) (a part of the Canadian Bar Association), and argue that this role may have resulted in the loss of some of their professional judgment as lawyers,

It is not that these practices turn them into white-collar criminals, but rather that the kinds of ethical dilemma that they face in practice typically call for fine judgement concerning the interests to be considered and the actions to be taken. The more they become ‘embedded’ in the firm’s top management team (TMT), the more likely they are, we argue, to adopt a decision-making style when faced with these dilemmas that resembles that of a ‘normal’, non-professional executive…

The less they saw themselves as lawyers, the more their judgement appeared to resemble that of non-lawyers.

Grace Giesel suggests that the more secluded nature of general counsel from the rest of the bar reduces the perceived risk of professional discipline. She recommends greater support and integration with the bar in order to foster a culture of legal compliance.

The secluded nature of these roles also means opportunities for others. In addition to women, others who experience challenges in traditional law firm settings tend to thrive as general counsel.

Fernando Garcia of Nisan & Infinity Canada was the Tomorrow’s Leader Award recipient at the CGCA. Garcia’s journey from Latin America to a high-priority neighbourhood in Toronto was recently detailed in the Legal Post.

Garcia told me that his contribution to the profession is to encourage more open-mindedness and welcoming to diversity. He highlighted to benefit of the new LPP Program, and how these candidates have plenty to offer if provided the chance.

Garcia also emphasized the team-based nature of his work, “What separates us is the people who work for you.”

What Rostain concludes is that although the earlier era of general counsel deferred considerably to business objectives and managerial preference, the more modern lawyers are willing to draw a clear line in the sand. This is likely due to regulatory action directly against lawyers for corporate misconduct in recent years. Ironically, these actions and statutory changes were exactly the type of market demands that Rogers capitalized on with Global Relay.

Gunz also came across an unexpected finding. The longer the lawyer worked in the role of general counsel, the more they saw themselves as non-lawyers. But the opposite effect was observed the longer the lawyer had their association with their employer. In other words, general counsel who remain in this role with the same company tend to solidify their professional identities and corresponding responsibilities as a lawyer, despite any involvement in TMT strategic management.

Regulatory changes already underway may themselves change the dynamic for general counsel.

DeMott predicts that the relationship between directors and general counsel will weaken as a result of new regulatory requirements for use of independent outside counsel and retained audit committees. These external “gatekeepers” will play their own role in ensuring corporate compliance.

Board of directors will be more directly involved in the selection, retention and compensation of general counsel. Once accountable to directors instead of CEOs, general counsel will likely assert greater independence.

Simmons & Dinnage affirm that as the role of general counsel continues to evolve, they will find a greater role in governance through acting as “innkeepers” who promote healthy governance through compliance and ethics, but as an employee embedded with a single client,

In-house counsel do not operate in a legal vacuum but must consistently weigh both legal and business concerns in a dynamic environment plagued with uncertainty. This dual competency enables in-house counsel to develop a pragmatic understanding of business strategies (both short term and long term), riskmanagement initiatives, global operations, and the relevant legal environment. Well-positioned innkeepers, especially when complemented by external gatekeepers, are an essential feature of healthy corporate governance in large corporate firms.

Simmons, Omari Scott and Dinnage, James D., Innkeepers: A Unifying Theory of the In-House Counsel Role (March 24, 2010). Seton Hall Law Review, Vol. 41, p. 77, 2011; Wake Forest Univ. Legal Studies Paper No. 1577907. Available at SSRN: http://ssrn.com/abstract=1577907

 

The development of compliance specialists and ethics advisors is a business practice which could potentially be imported in a large law firm structure.

Chambliss & Wikins, in their survey of thought leaders in the U.S., suggest that this may be a more effective way of approaching professional discipline in a self-regulated profession, and moving instead towards a model of “enforced self-regulation.” The development of these are only likely to occur though with encouragement of the lawyers’ insurer.

What this also means is that the door, leading from a large law firm to a general counsel position, may no longer only be unidirectional. Large law firms can benefit from the strategic decision making skills of general counsel, and assist in the risk management of their own practices internally.

A law degree may open doors. A role as general counsel may act as a launching pad. The combination of both might result in a launching pad through doors we haven’t even seen yet, and the bar would do well to keep these counsel within the fold in order to explore these possibilities.

 

Categories: Teknoids Blogs

My Twitter Digest for 06/13/2015

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Categories: Teknoids Blogs

The Case for Natural Language Processing in Economics

LLRX - Sun, 06/14/2015 - 14:17
Economist Ayeh Bandeh Ahmadi outlines a case for incorporating more natural language processing into economics as a tool to invigorate and provide additional critical facets and perspective to study, as well as adding a large volume of data for research to explore and analyze.
Categories: Teknoids Blogs

Summaries Sunday: Supreme Advocacy

slaw - Sun, 06/14/2015 - 06:01

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

Summary of all appeals and leaves to appeal granted (so you know what the S.C.C. will soon be dealing with) (May 14 – June 10, 2015 inclusive).

Appeals

Constitutional/Aboriginal Law: s.15
Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (35518)
To establish a prima facie violation of s. 15(1), a claimant must demonstrate the law at issue has a disproportionate effect on the claimant based on membership in an enumerated or analogous group; and the specific evidence required will vary depending on the context of the claim, but “evidence that goes to establishing a claimant’s historical position of disadvantage” will be relevant.

Criminal Law: Intoxication; General v. Specific Intent
R. v. Tatton, 2015 SCC 33 (SCC 35866)
http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15397/index.do
Intoxication short of automatism is not a defence to arson.

Criminal Law: Jury Representation
R. v. Kokopenace, 2015 SCC 28 (35475)
Representativeness focuses on the process used to compile the jury roll, not its ultimate composition, and the state satisfies the right to a representative jury by providing a fair opportunity to participate in the jury process; and that happens where the state makes reasonable efforts to: (1) compile the roll using random selection from lists drawing from a broad cross-section (2) deliver jury notices to those who have been randomly selected.

Criminal Law: Pornography; Private Use Exception
R. v. Barabash,2015 SCC 29 (35977, 36064)
The test in Sharpe requires a determination the sexual activity depicted is lawful ― and so did not arise in the context of an exploitative relationship. Because the trial judge did not consider this specific question, a new trial is ordered.

Extradition: Legal Test; Comity
Canada (Attorney General) v. Barnaby, 2015 SCC 31 (35548)
The question is whether the Minister’s decision to surrender was reasonable, which requires the Minister to engage in a balancing exercise. The C.A. below failed to consider the principle of comity and Canada’s international obligations.

Extradition: “Shock the Conscience”
Caplin v. Canada (Justice), 2015 SCC 32 (35527)
To satisfy the Minister that extradition should be refused, it must be shown surrender would “shock the conscience” and thereby violate s. 7 of the Charter, or be “unjust or oppressive” under s. 44(1) of the Extradition Act.

Language Rights/Judges: Minority Language Rights; Reasonable Apprehension of Bias
Yukon Francophone School Board, Education Area #23 v.Yukon (Attorney General), 2015 SCC 25 (35823)
The test for reasonable apprehension of bias is what would a reasonable, informed person think. The objective is to ensure not only the reality, but the appearance of a fair adjudicative process (emphasis in original). Judges should avoid affiliations with certain organizations (such as advocacy or political groups) but are not required to immunize themselves from participation in community service where there is little likelihood of potential conflicts of interest. As to whether the Yukon is required, by virtue of s. 6(1) of the Languages Act, to communicate with and provide services to the Board and its employees in French, there should be a new trial with the benefit of a full evidentiary record, not a dismissal of the claims.

Leaves to appeal

Customs: Classification
Igloo Vikski Inc. v. C.B.S.A.2014 FCA 266 (36258)
How are imported hockey gloves classified – wait, shouldn’t Canada be exporting them?

Judges in Quebec: Remuneration & Benefits
Conférence des juges de paix magistrats du Québec v. Québec (Procureur général)2014 QCCA 1654 (36165)
How are JP’s remunerated in Quebec.

Mortgages: Interest Rate
Equitable Trust Company v. Lougheed Block Inc., 2014 ABCA 234 (36123)
Does the federal Interest Act limit mortgage rates.

 

Categories: Teknoids Blogs

Summaries Sunday: SOQUIJ

slaw - Sun, 06/14/2015 - 06:01

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

CONSTITUTIONNEL (DROIT) : Les deux juges municipaux retraités demandeurs échouent dans leur tentative de faire déclarer que l’article 39 de la Loi sur les cours municipales est ultra vires et inopérant en général ou inapplicable à leur cas et qu’ils ont le droit de continuer à exercer leur rôle de juge après leur 70e anniversaire.

Intitulé : Clément c. Québec (Procureur général), 2015 QCCS 2207
Juridiction : Cour supérieure (C.S.), Montréal, 500-17-071980-125 et 500-17-080202-131
Décision de : Juge Michel Yergeau
Date : 22 mai 2015

CONSTITUTIONNEL (DROIT) : Les deux juges municipaux retraités demandeurs échouent dans leur tentative de faire déclarer que l’article 39 de la Loi sur les cours municipales est ultra vires et inopérant en général ou inapplicable à leur cas et qu’ils ont le droit de continuer à exercer leur rôle de juge après leur 70e anniversaire.

CONSTITUTIONNEL (DROIT) — institution constitutionnelle — juge — cour municipale — discrimination — âge — retraite obligatoire — article 39 de la Loi sur les cours municipales — validité constitutionnelle — indépendance judiciaire.

DROITS ET LIBERTÉS — droit à l’égalité — motifs de discrimination — âge — retraite obligatoire — juge — cour municipale — article 39 de la Loi sur les cours municipales — validité constitutionnelle.

Requêtes en jugement déclaratoire. Rejetées.

Les demandeurs, 2 juges municipaux à la retraite, veulent faire déclarer ultra vires et inopérant l’article 39 de la Loi sur les cours municipales, qui impose aux juges municipaux l’âge de la retraite à 70 ans, et obtenir le droit de continuer d’exercer leur rôle de juge après leur 70e anniversaire. Subsidiairement, ils demandent à être autorisés à exercer des fonctions judiciaires au même titre qu’ils pourraient le faire s’ils étaient juges à la Cour du Québec ou juges de paix magistrats, en vertu des articles 93 et 165.1 de la Loi sur les tribunaux judiciaires, ou autrement à être déclarés aptes à être nommés juges en vertu des articles 39.2 et 39.3 de la Loi sur les cours municipales. Au soutien de leurs requêtes, ils font valoir qu’imposer la retraite à l’âge de 70 ans contrevient à l’article 10 de la Charte des droits et libertés de la personne et à l’article 15 de la Charte canadienne des droits et libertés. De plus, ils prétendent que l’article 39 de la Loi sur les cours municipales ne passe pas le test de l’article 1 de la charte canadienne et qu’il fait entorse au principe de l’indépendance de la magistrature. Enfin, ils allèguent que l’âge imposé de la retraite les prive de bénéficier en tout ou en partie d’un régime de retraite, les plaçant à risque sur le plan financier, ce qui menace l’indépendance judiciaire.

Décision
D’une part, l’imposition d’un âge de la retraite fait partie de l’arsenal des moyens dont dispose le législateur afin d’assurer l’indépendance de la magistrature. En ce sens, il ne revient pas à un juge de trancher que 75 ans est préférable à 70 ans. La preuve, constituée essentiellement de textes à teneur démographique ou sociologique, ne permet aucunement de conclure que l’âge adéquat de la retraite d’un juge devrait être repoussé et que ce choix politique du législateur est déraisonnable. D’autre part, une distinction fondée sur l’âge, lorsqu’elle est prévue par la loi, comme en l’espèce, n’est pas une discrimination au sens de la charte québécoise. Quant à la charte canadienne, une demande en vertu de l’article 15 doit satisfaire à un exercice à deux volets. Il est entendu que le motif de l’âge est l’un de ceux énumérés à l’article 15, satisfaisant au premier volet. Toutefois, l’argument des défendeurs ne respecte pas l’élément comparatif qui constitue le deuxième volet. Si les juges ont un droit constitutionnel à l’égalité réelle, les justiciables ont également un droit constitutionnel à une magistrature indépendante. Outre le fait que l’indépendance judiciaire est expressément prévue aux articles 11 d) de la charte canadienne et 23 de la charte québécoise, il s’agit également d’un principe constitutionnel non écrit, d’où l’importance du sujet et de sa place dans la hiérarchie des droits judiciaires constitutionnellement protégés. L’inamovibilité est l’une des trois conditions essentielles de l’indépendance judiciaire, au même titre que la sécurité financière et l’indépendance administrative. L’âge de la retraite est au coeur même de la notion d’«inamovibilité». L’établissement dans la loi d’un âge préétabli de la retraite, la mise en place de mécanismes inscrits dans la loi permettant de démettre un juge dont la conduite n’est pas conforme à sa fonction judiciaire et la création dans la loi de comités indépendants chargés de déterminer le salaire, la pension et les avantages sociaux des juges sont autant de garde-fous de ces conditions essentielles. Le choix de 70 ans pour imposer la retraite aux juges municipaux ne peut donc pas être assimilé à un stéréotype ou à un préjugé dans le contexte où il faut constitutionnellement mettre les juges à l’abri de l’arbitraire possible du pouvoir exécutif et législatif ainsi que des attaques des médias. Au stade du deuxième volet, les demandeurs n’ont pu prouver l’absence de facteurs rationnels justifiant l’âge obligatoire de la retraite des juges ni démontrer que l’article 39 de la Loi sur les cours municipales a pour résultat de perpétuer un désavantage dont les juges municipaux seraient victimes ou que celui-ci repose sur un stéréotype s’apparentant à l’âgisme. De la même manière, leurs arguments financiers sont rejetés. En effet, le fait que les juges municipaux rémunérés à la séance ne bénéficient ni d’un régime de retraite ni d’un régime d’assurances ou d’autres avantages sociaux a été pris en considération, et leur tarif a été modulé en conséquence. Par ailleurs, même s’il s’agissait d’une limitation d’un droit garanti par la charte, celle-ci serait justifiée en vertu de son article 1.

Le texte intégral de la décision est disponible ici

Categories: Teknoids Blogs

My Twitter Digest for 06/12/2015

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Categories: Teknoids Blogs

IBM Watson shakes up 7 industries. Are legal and education on the list?

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Since IBM opened IBM Watson to the world last year, it has been building a developer and entrepreneur community around the development platform. The community now consists of more than 280 commercial partners, as well as tens of thousands of developers, students, entrepreneurs and other enthusiasts that are generating up to 3 billion monthly API requests on Watson.

How IBM Watson apps are changing 7 industries | Computerworld http://www.computerworld.com/article/2934460/emerging-technology/how-ibm-watson-apps-are-changing-7-industries.html#slide1

Surprise! Legal and education didn’t make the list. Maybe it isn’t much of a surprise. Both “industries” aren’t really driven by data crunching but much more by human interaction and both have been rather impervious to automation.

Categories: Teknoids Blogs

Let’s Encrypt aims to bring web encryption to all sites for free

<CONTENT /> v.5 - Fri, 06/12/2015 - 21:05

What is Let’s Encrypt?
Basically, it’s a way to get a quick x509 certificate for your server without knowing much about what is a x509 certificate:

Let’s Encrypt Overview – http://www.cryptologie.net/article/274/lets-encrypt-overview/

If this works out it will go skiing way to securing all web traffic. The Let’s Encrypt site is at https://letsencrypt.org/ and the code is open source at https://github.com/letsencrypt.

Categories: Teknoids Blogs

A Few Thoughts for Family Law Litigants, Part Two: Comments From the Bench and Others From Me

slaw - Fri, 06/12/2015 - 16:04

In my recent post “A Few Thoughts for Family Law Litigants: Why it Pays to Let Bygones Be Bygones,” I wrote about the foolishness of litigants who allow themselves to be guided by hurt feelings or desire for revenge when taking their family law dispute to court. I also gave a few examples of the typical sort of silliness I often saw in my practice when parents managed their conflict by exchanging allegations and counterallegations in affidavits, such as this gem from early in my career:

Her: “You drink all the time. You’re always drunk and there are empties all over the house. You even drive when you’ve been drinking.”

Him: “I only drink socially, one or two beers at most, and I never ever drive when I’ve been drinking. You smoke pot. You even smoked pot while you were breastfeeding our daughter.”

Since that post, a number of colleagues have brought to my attention two recent decisions by Madam Justice Sharma of the Supreme Court of British Columbia which make some rather pointed remarks on this issue, B.A.S. aka B.H. v S.R.S. and A.M.D. v K.R.J. Each case took two days to argue, and Justice Sharma apparently heard them back-to-back at the end of January 2015. If she happened to be frustrated by the nature of these hearings, which I am sure was absolutely not the case, such would nonetheless be entirely understandable.

B.A.S. v S.R.S.

This decision involved the respondent’s application to change a temporary order on parenting arrangements. As is usual for interim applications in the Supreme Court, the only evidence before the court was contained in affidavits. There was no oral evidence.

Here are the judge’s preliminary comments about the quality of the affidavit material before her, with some of the more important bits in bold:

“[3] The affidavit material filed in support of and opposition to the application contained hearsay, double-hearsay, statements without attribution or that could not be in the affiant’s personal knowledge, argument, speculation and other statements of dubious admissibility. Allegations are flung from both sides. Each party objected to portions of the other party’s evidence and suggested it was either wholly inadmissible or should be given minimal weight.

“[4] Some of the claimant’s and respondent’s affidavits relate singular incidents between a child and the other parent that were not significant in the overall assessment of what is the best parenting arrangement for the children. Both parties suggest there are times when they have not been appropriately notified of travel or minor medical and school issues from the other parent. They each accuse the other of talking about the parenting dispute in front of or directly to the children.

“[5] In addition, the claimant’s affidavit contained a serious allegation against the respondent and his wife about drug use and association with criminals with absolutely no corroborating evidence. In my view, those allegations were improper and should not have been made.”

Readers may recall my remark in my previous post about affidavit battles to the effect that “each party is behaving like a child, busy throwing shit at each other, and the job of the judge is reduced to deciding which parent is the least shitty.” In any event, here is how the judge summarized the parents’ positions:

“[9] In general, the respondent takes the position that the children are doing well living with him and his wife and are taking part in a wide variety of activities. He contends the children’s lives when they resided with the mother were ‘fraught with conflict, to the point where [the children] expressed, and continue to express, a strong desire to reside’ with him and his wife. The respondent seeks to reduce the children’s weekend visits with the claimant from biweekly to once a month and, instead of an entire month in the summer, two non-consecutive weeks with their mother. …

“[10] The reduction in the summer time is said to be based on the children’s desire to spend as much time as they can in [the respondent’s city] so they can continue with their activities and visit friends.

“[11] The claimant’s response to the application is deficient. … The factual basis for the response is encompassed in five bullets. Briefly, the claimant accuses the respondent and his wife of interfering with her parenting and making her communication with the children very difficult. The claimant’s position is that the application is not genuine and is a continuation of a campaign to alienate the children from her. This is a serious allegation, which as I discuss below, I am persuaded has not been established on the evidence. Unfortunately, the claimant heavily relies on the allegation of alienation and offers little other factual or legal arguments as to why the application should not succeed. This puts the court in a very difficult position. The sole issue is to determine what is in the children’s best interests but the claimant has not really answered the respondent’s claims. She submits the blanket statement that extra-curricular activities ought not to trump her time with the children yet she offers no views on whether the activities they are engaged in are in the children’s best interest. Nor does she offer a way to accommodate maintaining the current schedule and not diminishing the children’s participation in activities.

“[12] In relation to the application that [the respondent’s wife] become a guardian to the children, the respondent says the appointment is necessary to legally recognize the fact that [the respondent’s wife] provides the day to day care of the children while he works. He claims the claimant refuses to communicate with his wife, thus making their family life and decision-making difficult and cumbersome. …

“[13] The claimant is opposed to [the respondent’s wife] becoming a guardian but provides no reason other than the fact that [the respondent’s wife] is not the children’s biological parent. With regard to communication, she denies she makes it difficult for [the respondent’s wife] to communicate with her. At the same time, her position in court is that she is not legally required to communicate with [the respondent’s wife] so the allegation that she does not communicate should not be taken into consideration.”

Good stuff; congratulations to all involved. Unsurprisingly, the judge was lead to this conclusion in allowing the respondent’s application:

“[50] This dispute is bitter. It is clear the parties are not working together well. This is tragic and does nothing to promote the well-being of their children.”

A.M.D. v K.R.J.

This case was a summary trial hearing, meaning that there was no oral evidence provided by witnesses, and that all of the evidence before the judge was in affidavit format. The following comes from Justice Sharma’s description of the facts of the case, with the more important bits in bold as usual:

“[30] The parties brought to my attention over 30 affidavits in this two day application. A lot of the content in those affidavits is inadmissible because it is hearsay, double-hearsay, opinion or speculation, facts stated that are outside of the affiant’s personal knowledge or facts that have an insufficient foundation. Equally, a great deal of the evidence is irrelevant, unhelpful or clearly self-serving and, therefore, of questionable reliability.

“[31] I find two categories of evidence particularly troubling. The first is where one parent describes his or her observation about a single interaction of the other parent with [the child], the child’s reaction on a single occasion to something the other parent has said or done, or the child saying he was or appearing to be reluctant to want to go to the other parent’s home at the time of transfer.

“[32] The second category is the parents’ conversations with [the child] about issues in this case which are reproduced in their affidavits. It is highly inappropriate for the parties to implicate their six year old child in this dispute in any way.

“[33] It is important to note neither party takes the position that the other party is an unfit parent (except, maybe, an accusation made about the respondent’s drinking, which I will address below). Even if there was such an allegation, the type of evidence described above reveals little, if anything, unusual about either parent’s interaction with their young child in the context of shared parenting.

“[34] Instead, I find these observations are being traded in a ‘tit for tat’ fashion. I am led to believe this kind of evidence is not uncommon in contested family cases. Common practice is not determinative of admissibility or relevance. 

“[35] I discourage parties from adducing this type of evidence which, I think, is a passive aggressive tactic. There is no blatant accusation of unfit parenting, but the evidence put forward by one parent is such that the other parent cannot resist answering because the statements or the inferences that could be drawn from the statements are inflammatory. The parties get drawn into a cyclonic battle of the affidavits, often enlisting friends or relatives to contribute more affidavits.

“[36] I must decide what is in the child’s best interests. In that context, each party’s view of what is best for the child and the facts on which that view are based may be helpful to my decision. What is of dubious relevance and questionable reliability is a person’s observation that on one or a few occasions a parent’s interaction with the child or the child’s reaction was less than ideal. Of no relevance is what a six year old said to a parent when that parent, inappropriately, talked to the child about the legal issues in this case.”

I do like that phrase, a “cyclonic battle of the affidavits.”

At this point in her reasons, the judge turns to the claimant’s allegations about the respondent’s drinking habits:

“[37] The claimant states the respondent ‘appears to have an issue with alcohol’ and that there is an ‘obvious alcohol abuse issue’. She refers, among others, to an incident in April 2013 when she believes the respondent was ‘grossly intoxicated’ while [the child] was in his care. She claims to have confronted him about his drinking during their marriage and says it was a huge issue in their relationship.

“[38] The respondent ‘wholly denies’ any problems with alcohol. He points out he is regularly tested for drugs and alcohol for his job. There is also an affidavit from the other person present during the April 2013 incident and that person disagrees with the plaintiff’s characterization of what happened and the respondent’s state of sobriety.

“[39] The respondent questions the sincerity of the claimant’s accusation, asking why, if she truly believes the respondent has an ‘alcohol abuse’ problem, she had not sought different parenting terms. Either her concerns about alcohol prior to the relocation dispute were not serious enough to take action, in which case they are not material to this application. Or, she is exaggerating the incidents and her level of concern to try gain an advantage in this application.

“[40] Taking all of these circumstances into account, I find the allegation about alcohol abuse is unfounded. The allegation is serious and should not have been made.”

At the end of the day, the claimant’s position was rejected by the judge while the respondent’s was allowed. He must have been the least be-spattered parent.

A Few More Points

I concluded “Why It Pays to Let Bygones Be Bygones” with a list of things litigants can do to improve the likelihood that they’ll be successful in court, and you can see that the folks in B.A.S. v S.R.S. and A.M.D. v K.R.J. disregarded many of them. Their cases remind me of a few other things I think need to be said about courtroom disputes involving children.

First, as I said, or at least implied, in my previous post, the court is generally unconcerned about allegations moral unfitness or character deficiencies unless they impact on a person’s capacity or ability to parent a child. No matter how much problems along these lines trouble your client, they should not be raised them in court unless:

  • you are convinced that the problem impacts the opposing party’s capacity, willingness or ability to parent the children;
  • you are convinced that the problem is one that other people in the general community would tend to agree is a serious problem which, if true, would likely impact the opposing party’s capacity, willingness or ability to parent; and,
  • you have evidence in hand which proves that the problem the client is complaining about actually exists.

Second, if the client doesn’t have one big problem that you can use to explain why the opposing party lacks the capacity or ability to parent a child (“you’re always drunk” or “you smoked pot while you were breastfeeding,” for example), don’t try to compensate by raising a great heap of much smaller problems instead (“he once left the child in the car when he went to buy milk,” “she used a naughty word in front of our five-year-old” or “he got drunk at last year’s office party and used the photocopier in an inappropriate way”). I have seen affidavits that go on at a ridiculous length, cataloging one picayune issue after another in numbing detail. I appreciate the effort that goes into preparing such material, and we all know how much such affidavits cost our clients, however it’s important to remember that this strategy rarely, if ever, works.

The fact of the matter is that endless litanies of complaint about small problems do not have a cumulative effect that eventually equals the impact of a big problem, tipping the scales in your client’s favour. Instead, the court, to be blunt, is likely to see you’re client as a colossal whiner who is prepared to complain about anything to get his or her way, and the force of your client’s complaints will get smaller and smaller with each successive complaint raised. Eventually the tables may wind up turning in the opposing party’s favour if your client comes to be perceived as the parent who is obstructing the post-separation care of the child!

Third, clients have a weird belief in the importance and relevance of character references. I don’t know where this comes from, since nothing in the Divorce Act, or in the provincial family law legislation that I’ve read, says “the winning parent shall be the parent with the most people willing to say nice things about that parent,” but there does seem to be this odd reflex to run to friends and family the moment a parenting dispute seems headed to court.

There are a few problems with this approach, apart from the rather sad likelihood that the writing of character references and letters of support will bring an abrupt end to the author’s relationship with the opposing party, including these:

  • letters are hearsay, if you will recall, and are not proof that things said in the letter are true (if someone has something really important to say, get them to write an affidavit);
  • most people are able to collect a pile of letters attesting to their fine qualities as a parent, pet owner or employee, and the fact that your client’s got a stack of them doesn’t mean that he or she is particularly special;
  • most letter writers are clearly partisan, and the weight the court will give to the convivial words of an ally is less than the the weight it would give to the comments of a genuinely objective third party; and,
  • letters like this generally don’t talk about the negatives known to the writer (“well, she does drink every now and then, especially in the early afternoon on school days, but other than that she’s a totally awesome mom”) just the positives (“Harry, or Saint Harold as we all call him in the neighbourhood, is the most wonderful and wise parent I have ever met and absolutely radiates compassion, love, tolerance and patience”), which seriously undermines their credibility and utility.

If you really want to improve your client’s chances of “success,” avoid tactics like these. The client should focus on being an attentive and involved parent, admit the opposing party’s strengths, and take a mature and considered approach to the family law dispute that pragmatic, utilitarian and aimed squarely at the children’s best interests and the future functioning of the separated family unit.

A version of this post originally appeared in JP Boyd on Family Law: the Blog on 8 June 2015. (If you’re wondering how I could possibly have the stones to give my blog a name like that, it comes from the name of the public legal information resource JP Boyd on Family Law, a wikibook published by Courthouse Libraries British Columbia. They chose the title, completely ignoring my mild and inauthentic objections.)

Categories: Teknoids Blogs

My Twitter Digest for 06/11/2015

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Categories: Teknoids Blogs

Recommind to Host Canadian eDiscovery Socials

slaw - Fri, 06/12/2015 - 12:14

As you can see from the latest banner on the top of Slaw, Recommind Inc. is set to host a series of eDiscovery Socials in June. The company has arranged for three of their senior thinkers to come to Toronto (June 17th), Calgary (June 24th) and Montreal (June 25th) to discuss everything from big data trends and advanced analytics to new methods for targeted document review.

It’s also worth noting that these events are intended to be networking events and not a sales spiel. The goal is simply to connect with professionals in Canadian firms that are either facing difficult challenges, or want to discuss current trends.

For those interested in an open and casual environment to discuss these kinds of issues, you can find out more via their RSVP form.

Categories: Teknoids Blogs

The Friday Fillip: Winter’s Hem

slaw - Fri, 06/12/2015 - 11:23

 

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

 

MEASURING LIFE
 
Chapter 15
Winter’s Hem

It had been a tiring day. Most days were tiring now. But the talk of Jared and of arrangements after her death seemed to have taken even more out of her than the usual business of living.

And it had turned cold as the sun fell, dropping below freezing for the first time this season, the hem of Winter’s skirts touching the ground in the low places, the ditches, the hollows, the furrows of the fall-ploughed fields, a foretaste of the coming anaesthesia.

Gladys Tremaine pulled the eiderdown up tighter under her arms and adjusted the woolen bed jacket she was wearing. The furnace had been running for a few weeks now, but that didn’t seem to provide much warmth in her bedroom.

It seemed likely to her that when Winter arrived this time, all teasings and tocsins finally done, the great destroyer would find that, the rusty spring on the old screen door creaking one last time, she had slipped out the back to rest safe below the frost line, there to be out of reach forever. She smiled at the thought of fooling Winter that way. Forever.

Gazing ahead at nothing, she touched the book that lay on the eiderdown to her left, letting her hand read the bumps of the artwork in the cover and contemplating whether she would pick it up or whether she would knit instead. In the pleasant stillness of her indecision, she heard with small attention the sound of the loose hasp on the shed door tapping in the wind and once in a while going ping as it was switched back to hit the staple on the other side. The wind, she thought idly, you couldn’t really hear the wind any more than you could see it. You only hear the sound that things made when stroked by the air, like the stubborn leaves on the oak tree outside the window that fluttered and snapped at the ends of their twigs.

She remembered for no reason — recollections came to her more and more without prompting now; some other Gladys operating inside her, riffling through the cards in the catalogue, fixing on this or that moment in the way a crow’s eye will be caught by a bauble — she remembered a house that they had occupied in which there was a fireplace in the bedroom and how Harold would complain at having to get out of bed on cold evenings to poke it and feed it, and how she had said to him, time and again, if he would sleep in the nude he was going to be cold. And how much she delighted in watching his nude body in the firelight.

Now there was no Harold or firelight but only a book and her knitting and a forty watt bulb in the bedside lamp.

She blinked. There was no use in being maudlin. All of that was a long time ago. And to look on the bright side, the lamp gave off a comforting yellow glow, so that if you lowered your eyelids you might imagine that there was a fire in a fireplace. Too, Harold had his demerits, let us not forget that. It hadn’t been all cakes and ale, not by a long chalk. So what if it was beans and bacon now? And books. And knitting. These were solid, honest, good and useful things. They sustained.

Her right hand moved onto her knitting.

She ran a finger up the yarn and felt it catch a little on the roughness of her skin. Old hands. What was it her mother used to say? I’m as old as my tongue and a little older than my teeth. Well, a part of her felt younger than her hands, younger than any piece of her actual body, in fact, as though — what? As though she were eternal? Frozen at some moment of imaginary youth? Yet another Gladys inside her, she thought. The mad one at the memory catalogue and this one, the clingy Gladys who was reluctant to die. If she wasn’t careful, she told herself, she’d wind up crowding an already overpopulated earth with all these Gladyses.

She shifted her attention and heard a car go by two roads over. And then a dog barked and barked. That would be Reg’s Jack Russell. Yappy little thing. Always jumping up. Good with the rats, though. A real killer. Surprising for something so small.

That decided it for her. It would be knitting tonight. She was working on a scarf for Reg, a small way of repaying him for his kindnesses to her — driving her into town, carrying her groceries, doing the odd thing that needed doing around the place to keep it water tight and wind tight.

She picked up her work — almost a yard of knitted scarf — positioned the ball of yarn, stroked out some slack, felt the needles seek out their proper places in her grip, and began the click-clack clockwork motions that magicked a filament into cloth.

Leaving her hands to do their work, she let her mind think of fate, as she often did when starting to knit. She had always liked the fact that mythology made fate into three women manipulating thread, Fates that even the gods had to obey. She could never quite remember their names, but that didn’t matter. She knew who they were. Every woman did, she thought. She was in them, all three of them, in the way that the peculiar turns on Gladys were inside her. Spinner, measurer, cutter. Life in her hands. Jared’s life perhaps.

She gave the yarn a tug to liberate more from the ball.

And suddenly she was overcome with torpor. Not even realizing that she was doing it, she clicked off the light and passed into sleep, leaving everything exactly as it had been.

Rural dark, true dark.

Lit eventually by her dreams. Shelving books, spine after spine in her hands, all dun, titles difficult to read.

Black once more, with the sound of some night bird and yet higher into the sky the thin thrum of a jet plane passaging from nowhere to nowhere.

Jared danced and fell and danced again and everything was white and she was worried and joyful at one and the same time.

The softest cracking sound, a scrape, nigh inaudible.

Something silly with shapes, coloured shapes. Just that. No Gladys.

He came into her bedroom so slowly he might not have been moving at all. The pulse was beating in the roof of his mouth and reflexively he tried to swallow it away, nor any water in his mouth to take it down. He felt the iron band tighten across his chest and down his arms. And he wondered briefly, as before, whether this was a form of pleasure. Or not.

Harold appeared, not naked, but wearing work clothes and smelling of male sweat. He was doing something wrong. She was scolding, remonstrating, and young.

Something creaked. A board below the rug was let back to true with infinite care. And still the night persisted. Distances halved are crossed forever.

Until with a spurt he was on her, pressing a pillow over her face, leaning into the killing. She spasmed. Jerked. Brought her legs up, tried to arch. Old machinery failing quickly. Neck back. Arching. Both arms up with force, terrible force.

And the needle happened into his belly, into him.

He gasped, loosened his grip, stumbled over her, falling forward. Driving the long needle home against the bed. Into him. Unto his death.

All the while the Jack Russell had been barking, barking.

 

© Simon Fodden

 

What Do Smurfs & The US Senate Have in Common?

Probably not what you’re thinking — though that might be true as well. No, we’ll get to my answer in a roundabout way, just for the fun of it. And, of course, I’ll tie it in to today’s chapter quite neatly for a change. 

It begins with Dickens (as this novel did, by the way, the opening word “tittlebat” being the link to Boz’s PIckwick Papers) and his terrible tricoteuse, Madame Defarge, to establish a solid connection to knitting and death. We meet her in Chapter V, The Wine Shop, where she sits, knits, and “sees nothing.” She is present, observes, and keeps the register of those who must die, literally knitting their names into her work. One of the Fates, indeed. Her husband, owner of the wine shop, says at one point: “It would be easier for the weakest poltroon that lives, to erase himself from existence, than to erase one letter of his name or crimes from the knitted register of Madame Defarge.”

The tricoteuses were no mere figment of Dickens’s imagination. As the French Revolution gathered momentum and about the time of the Reign of Terror, when things were uncertain and forces were loosed and might not be easily controlled, one of those forces were the working class women of Paris. They banded together; their groups took to the streets; their voices were loud and often . . . unpleasing, even to the leaders of the revolution. This was a rough Marianne, many times over. So rough, in fact, that a party of women appealed to the newly formed Convention Nationale, complaining that these groups of women militants (“adventuresses, female knights-errant, emancipated girls, and amazons,” one legislator called them, intending to disparage) were forcing them to wear certain revolutionary garb. This triggered a broader discussion in the assembly of the political role of women, leading to a general repression of women within the revolution, and to a decree that: 

“No person of either sex may constrain any citizen or citizeness to dress in a particular manner. Everyone is free to wear whatever clothing or adornment of his sex seems right to him, on pain of being considered and treated as a suspect and prosecuted as a disturber of public peace.”

The “female knights errant,” banned from gathering, were left to sit sullenly in public, often at the newly inaugurated guillotine, knitting, knitting. And what were they knitting? What had they tried to force on other women and men? 

The red Phrygian cap, that conical hat with the tip pulled forward over the head, glorified (mistakenly) as an ancient symbol of freedom. 

That’s the link between Smurfs and the US Senate. Belgian Smurfs (Schtroumpfs in their homeland) adopted the Phrygian cap, perhaps because it’s thought the old Gauls and Anglo-Saxons wore it. And the US Senate stuck one near the head of its official seal, in honour of either roving bands of angry women or out of some mistaken understanding of the cap’s ancient history. But there it sits, atop the flag and the fasces.

QED

UPDATE: I’ve just come across this vid of a movie knitted into a scarf, frame by frame. Apparently, it’s already a city block long, so take that, Mrs. Deforge! Here, then, is your lagniappe with your treat with your fillip:

Categories: Teknoids Blogs

Introducing the Access to Justice Research Network!

slaw - Fri, 06/12/2015 - 06:00

Access to justice issues have frequented academic, legal, political and mainstream debates for many years (with Slawyers often initiating or driving the dialogue happening in the Canadian blogosphere!). Yet, until now, there has been no identifiable, central platform in Canada where a wide range of justice stakeholders can exchange research and resources, raise questions and share ideas and concerns about access to justice issues. As fellow blogger Karen Dyck notes there is “… innovation in access to justice happening everywhere…[but there is] little evidence of either coordination or collaboration toward what seems to be a common goal.”

In response to this need to coordinate and centralize access to justice related research, news, data and discourse, last month the Canadian Forum on Civil Justice (CFCJ) launched the Access to Justice Research Network (AJRN). Comprised of a website and listserv, the AJRN coordinates the circulation of exciting new access to justice work happening across the country.

How does the AJRN work?

The goal of the AJRN is to stimulate dialogue and knowledge exchange as well as to build ties among access to justice researchers across the country.

It is an interactive space that counts among its members, researchers, policy makers, legal professionals and other justice stakeholders committed to A2J. The AJRN has two parts:

  1. A listserv that allows members to easily connect and/or collaborate with other subscribers, and engage in dialogue around critical A2J issues – all just by sending an email!
  2. A website that acts as a “clearinghouse” for research and resources related to A2J. While the website is curated by the CFCJ, the site’s content is largely user-generated so the listserv provides a medium for an open exchange of links and papers that are then shared publically on the AJRN website.

In as much buzz as the AJRN has already generated, its current form is a prototype. The established mandate is to:

  • Provide a medium for the timely transfer of access to justice research and findings to researchers, lawyers, policy makers and A2J stakeholders.
  • Serve as an organized database for content and publications on access to justice issues.
  • Create an accessible forum for conversations and knowledge exchange on access to justice matters.

What topics are addressed through the AJRN?

The AJRN already boasts an impressive array of resources on online dispute resolution, legal service delivery, innovative partnerships and collaborations, legal education, alternative dispute resolution and many more. Some of the more recent posts deal with poverty law, health literacy and legal capability, and the post-election debate over legal aid in the UK.

The AJRN welcomes network members to circulate:

  • research papers
  • policy reports
  • news articles
  • links to websites
  • calls for papers, and
  • any other resources they think will enhance work in the A2J arena.

The disclaimer, of course, is that the resource should be related directly to A2J!

The ultimate goal of the AJRN is to create a community of justice stakeholders who are committed to improving access to justice in Canada. The move to create the AJRN and the launch of its prototype has been supported by a generous grant from the Law Foundation of BC/Legal Services Society Research Fund.

Please join us as we work to build a vibrant and energetic A2J Community! We look forward to connecting with you to share, discuss and collaborate on access to justice issues!

To join the listserv, send an email to communications@cfcj-fcjc.org with “AJRN subscribe” indicated in the subject line.

To follow the AJRN blog, visit the website and click the “Follow” button on the site’s landing page.

For general information about the AJRN, visit the website at: ajrn.org

Categories: Teknoids Blogs