Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.
This week’s summaries concern:
Constitutional Law/ Courts / Practice/ Aliens / Civil Rights / Criminal Law
Vilardell v. Dunham 2014 SCC 59
Constitutional Law – Courts – Practice
Summary: During the trial of a family action, the plaintiff asked to be relieved from paying the hearing fees imposed by the Crown. The British Columbia Supreme Court, in a decision reported at  B.C.T.C. Uned. 434, determined the family law issues. With respect to the plaintiff’s request to be relieved from paying the fees, the court identified a potential jurisdictional problem and invited submissions from the British Columbia Attorney General, the Law Society of …
Iyamuremye et al. v. Canada (Minister of Citizenship and Immigration) 2014 FC 494
Summary: The applicants applied to be recognized as refugees or persons in need of protection (Immigration and Refugee Protection Act, ss. 96 and 97). The Refugee Protection Division of the Immigration and Refugee Board dismissed the application. The applicants appealed. The Refugee Appeal Division (RAD) dismissed the appeal. The applicants applied for judicial review of the RAD decision arguing, inter alia, that the RAD made a jurisdictional error. The Federal Court allowed the application and referred the matter for …
R. v. Conception (B.) 2014 SCC 60
Civil Rights – Criminal Law – Statutes
Summary: An accused was found unfit to stand trial. The presiding judge made a treatment order under s. 672.58 of the Criminal Code, requiring the accused to submit to anti-psychotic drug therapy. On being informed that no mental health treatment facility beds were immediately available, the judge stipulated in the order that the accused was to “be taken directly from Court to the designated hospital . … Accused is not to be taken …
Here is a description of the report, from a post at the openlaws site:
Open Legal Data for Europe: The EC funded openlaws.eu project and the LAPSI thematic network project joined forces for a workshop on open legal data for Europe, hosted by the Institute for Information Law of the University of Amsterdam on Sep 4 2014. About 25 participants from academia, government, business and civil society discussed what the drivers are for opening up legal data for re-use in different jurisdictions and what barriers (perceived or real) exist. The outcome of the discussion will feed into the on-going work in the LAPSI network on legal barriers to re-use, and in the vision for Big Open Legal Data that will be developed as part of Openlaws.eu. [...]
The event Website and program are available at: http://collegeoflpm.org/meetings/2014-futures-conference/
The Webcast link for the event was here.
One Twitter hashtag for the event was #colpm2014
Ron Dolin has posted slides of his presentation at the event, concerning recommendations for technology-based reforms to “law schools, legal clinics, law firms, courts, in-house, and legal regulatory bodies”.
For more resources related to this event, please see the comments to this post.
If you want to sell a T-shirt that says “Bring the Juice”—and who among us hasn’t?—you’ll have to clear it with Robert P. Cleveland.
Mr. Cleveland is director of trademark and licensing at Ohio State University, which has owned the trademark on “Bring the Juice” since 2012, along with several dozen other words and phrases.
The Chronicle just published a poem composed entirely of college-owned trademarks. I wrote it after combing through the federal trademark database to see if I could make a list of the weirdest ones. But there were too many, and a list wouldn’t have done them justice.
Of course, trademarks are big business for some colleges. Mr. Cleveland’s office pulled in $13.6-million through trademark licenses in the most recent fiscal year alone. The biggest portion of that money went to the athletics program, but the licensing office also disbursed $2.8-million to academic programs and more than $1-million to student affairs.
Owning a trademark doesn’t mean owning a monopoly on a word or phrase. When a college applies for a trademark, it has to specify what goods and services it sells (or plans to) with that mark, explains Steven McDonald, general counsel at the Rhode Island School of Design. The college must then continue selling those things in order for its mark to remain valid, he says.
In the case of T-shirts and other apparel, Ohio State has a “master apparel agreement” with J.America, a clothing company. So anyone seeking permission to sell “Bring the Juice” shirts would be out of luck.
But for other merchandise, you can fill out forms to apply for a license to trade on the university’s marks. In an email, Mr. Cleveland describes what happens next:
On the second Tuesday of each month we gather with our review board to review the application and samples. The board comprises a number of local retail buyers and two of our office staff. The buyers score the applicant on a scale of one to 10 and give us a feel for needs and opportunities in the marketplace. Three of our office staff gather shortly thereafter to do a final scoring assessment based on opportunity, quality/risk, experience, references, and finally the scores from the buyers.
And that’s how Buckeye Tartan™ cologne happens.
Something from the recent Throne Speech here in Nova Scotia struck me as quite odd. Specifically, a local news story quoted that the Premier “promised in the throne speech to ban the use of e-cigarettes in public places.”
Nova Scotia would not be the first jurisdiction to take this step and it would join a long list of jurisdictions which have enacted such legislation or by-laws. I am not an advocate of e-cigarettes nor did I understand much about them prior to doing some research for this post, but my understanding of some of the logic behind this intended ban on e-cigarettes in public places is that they promote the use of real cigarettes…….. which are perfectly legal to use in outdoor public places!
So we have product X which is a perfectly legal product to use in public places despite the negative health effects associated with it. And here we have product Y which is new to the market with much conjecture as to whether it helps people stop using product X or if it might promote the use of product X. So what several jurisdictions have decided to do is ban the use of product Y because it might promote the use of the perfectly legal product X.
I have been trying to come up with a proper idiom for this type of thinking. “Closing the barn door after the horse gets out” is not quite right, nor is “putting the cart before the horse” (evidently a horse must be involved). Isn’t there a German word that describes this kind of thinking? If product Y is so bad because it promotes the use of product X then logically should product X not just be removed from the market? Lacking the intestinal fortitude to take that step with product X it just strikes me as quite odd that the supposed reasoned approach is to ban the use of product Y in public places. Perhaps it makes some sense in an overall reduction of harm frame of thinking but not from a logical way of approaching product X and Y.
We are living in 1984. The novel, that is, not the year. Big Brother is watching you — and reading your emails, browsing your contact lists, keeping tabs on your call history, and tracking your movements. If you represent non-US clients, Big Brother may even be reading your confidential attorney-client communications, according to the New York Times.
This probably does not raise any serious ethical concerns for most lawyers. That is, I don’t think you will lose your law license because you use email. But it should make you pretty uncomfortable.
And while there is probably no reason to panic, it also means you should probably change the way you use the cloud.
I no longer think it is wise to use the cloud as the default place to store your information. Maybe that was always a bad idea, but it definitely looks like a bad idea now.
A year or so ago, I thought it made sense to use the cloud as a default. I put nearly all my information in the cloud, unless there was a good reason not to. After last June, the documents released by Edward Snowden started hitting the media. We now know that the NSA is not only vacuuming up information from the public Internet, but infiltrating major companies, undermining fundamental security software, and even intercepting computers in the mail to install spyware. It is also unclear which companies are cooperating, although some seem like they might even be on the NSA’s payroll.
Apart from governments — our own and others — the last few years have seen a resurgence in malicious hacking by non-government actors. It seems like every week we get a new warning to change our passwords because a popular cloud service has been compromised.
I no longer think it is wise to use the cloud as the default place to store your information. Maybe that was always a bad idea, but it definitely looks like a bad idea now. I think we have to assume that the government has (or can easily get) access to anything you send through the air or over a wire, especially (but not only) if it is unencrypted. So can many others. So if you weren’t already thinking carefully about what you put in the cloud, you must do so from now on. Put stuff in the cloud only when it needs to be in the cloud.Be Smart About the Cloud
There is no reason to fear the cloud. Instead, be smart about the cloud. If you choose your services carefully, using the cloud is at least as secure as not using it, and it can be more secure. In fact, for most people the cloud is far more secure than hosting a private server.
“[E]veryone needs to recalibrate their baseline expectation of confidentiality ….”
I reached out to several cloud software vendors to find out what they are doing in the wake of the Snowden revelations. None of them are using RSA, and all of them say they are using best practices when it comes to security. Clio‘s Jack Newton probably described the general feeling best when he quoted Microsoft’s general counsel, Brad Smith, who characterized the NSA as an “advanced persistent threat.” MyCase‘s Matt Spiegel said that “these are concerns we have always known existed,” and that Snowden’s revelations were merely confirming what most security experts already believed. Rocket Matter‘s Larry Port agreed, saying “the NSA revelations were a gift, in that now everyone else is as paranoid as I am.”
Newton admitted, though, that “everyone needs to recalibrate their baseline expectation of confidentiality … every medium is less secure … whether it’s a cell phone, personal computer, private server or a cloud-based application.”
On the basic question of whether the cloud is more secure than managing your own IT infrastructure, Spiegel (unsurprisingly) called the cloud “infinitely more secure, for many reasons, than data simply being kept on your local computer or server.” He has a vested interest in saying so, but I tend to agree with him. Few enough lawyers are proficient with Microsoft Word, much less setting up solid automatic backup or a secure file server, and there aren’t many lawyers willing to pay a security professional to keep their network secure at all times.
Still, lawyers have a duty to use appropriate security, and to me, that means using the cloud only when necessary.Re-Think Your Use of the Cloud
If you only had one computer and no smartphone or tablet, you could probably get by just fine without the cloud. But most of us now have at least two devices, and we really want to be able to sync up our email, calendars, tasks, and access documents wherever we are and whatever we are using.
Currently, the only way to do that is the cloud. (The “personal cloud” concept is just beginning to take shape, but it is not yet a realistic option for most users.)Email
Email was cloud-based before the cloud was even a thing. And storing your messages in one place just makes sense, whether that is Gmail or your own server. But email, by its nature, not very secure. Most email is transferred unencrypted and in the clear. Think postcards, not sealed envelopes. It is so easy to intercept email in transit that anyone who wants a copy will probably get one.
Because of the relative insecurity of email, you have two choices: watch what you say over email, or encrypt it.
In general, watch what you put in email and talk to your clients about email security. If you would not want the NSA to read your message, do not put it in an email. In fact, an experienced lawyer once told me not to put anything in a letter that I would not want to see on the front page of the newspaper. That sounds like a good guideline for email, too.
There are two alternatives for securing your digital communications: secure portals and encryption.
A secure portal is a website you can only connect to via HTTPS that holds any messages (and often, files) you want to give someone else access to. For example, you would log in, type a message to your client, and hit send. Your client would get an email letting them know they have a message, which they would have to log in to get. A secure portal is cumbersome, but it is an effective extra layer of security. (It is also a good idea if you are representing employees and worry about them reading emails from you at work.)
Some secure portals include Clio and MyCase, which send notifications by email, but do not include the substance of the message.
Another, higher-security option is encrypting your emails. This works, but it is even more cumbersome than a secure portal, and you will have to train your clients to do it properly. Still, if you want to secure your communications, email encryption works.Calendars and Tasks
Calendars and tasks are much more useful when stored in the cloud so you can sync them between devices and share calendars with co-workers and family members. But meeting requests generally go out over email, and not all online calendars are secured by HTTPS by default (Google Calendar is a notable exception).
To ensure calendar and task security, look for cloud services that use HTTPS by default, and avoid sending meeting requests if doing so would reveal confidential information.Documents
Documents are especially handy when kept in the cloud. The ability to pull up your client files from anywhere using your smartphone is pretty great. But you definitely don’t need anytime, anywhere access to all your files. There is probably no reason to store your closed files in the cloud, for example.
Cloud file sync and storage also includes a variety of security levels. Dropbox, probably the most-popular option, transfers your files over a secure connection, but does not encrypt your files until they reach Dropbox’s servers. And Dropbox is able to decrypt your files. Plus, Dropbox may be cooperating with the NSA.
Still, Dropbox is widely supported by mobile apps, making it the best choice for files you really do need to be able to get to anytime, anywhere. Which is why I still use Dropbox for some things, like draft blog posts and eBooks, camera uploads, and board meeting documents for the non-profits I work with. But I don’t put my client files in Dropbox anymore.
You could use something like Boxcryptor or Viivo to add an extra layer of encryption to Dropbox. I found Boxcryptor to be clunky, but Viivo works great and makes it easy to open your files in other mobile apps (although they will not be encrypted in those apps, obviously).
SpiderOak is often touted as a more-secure alternative to Dropbox. It is, as far as I can tell, but the security comes with some downsides. Like Boxcryptor and Viivo, almost no mobile apps support SpiderOak, which limits your options for getting your files onto your phone or tablet.
You can either have security or convenience, in other words. Not both. At least not yet. Recent updates to iOS are making it easier for apps to interact, which makes it less important which cloud file storage service you decide to use.
Another option is to skip the cloud entirely and use BitTorrent Sync. As we have discussed in the Lab, BTSync is relatively new, and has yet to either open-source its code or submit to a security audit. That said, BTSync is file sync without the cloud. It syncs up files between your computers and devices, but they are never stored on anyone else’s servers. Files are transferred (really quickly) over a secure connection, which means it is just as secure as Dropbox file transfers, but you don’t have to entrust your files to a third party. And while app support is weak, there is a nice BTSync app, which lets you view your files and send them to other apps. BitTorrent Sync is also growing really fast, which means third-party support should follow. Plus, it is free.
For backup, I continue to recomment a combination of local backup and CrashPlan, which is about as secure as the cloud gets.When Not to Use the Cloud
The bottom line is my new philosophy when it comes to the cloud: only use the cloud when you need to. And if you do use the cloud, make sure you choose the right level of security for the data you put there. If you don’t need to use the cloud, keep the information local and encrypted.
That said, I continue to think lawyers should use the cloud. The new comment to Rule 1.1 cuts both ways:
[A] lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology ….
If you don’t use appropriate technology, you are doing your clients and your ethical obligations just as much a disservice as if you use inappropriate technology. Sometimes, the cloud is the right tool for the job, and sometimes it isn’t. You cannot ignore it, but you cannot dismiss it as an option out of hand, either.Updates
Featured image: “Businessman hand working with a Cloud Computing diagram” from Shutterstock.
Too fast, too slow, too big, too small, too quiet — most of what there is lies beyond our senses, which is intriguing, if also more than a little humbling. So ever since Galileo spotted the moons of Jupiter and van Leeuwenhoek watched his animalcules wriggle around, the rest of us have been fascinated by this invisible world made present for us by clever scientists and engineers.
Photography has played a huge role in gratifying our appetite for the imperceptible. There’s the obvious but now taken-for-granted ability to see aspects of the otherwise lost, invisible past, of course. And shots of galaxies, nebulas, and dust clouds take on startling hues thanks to frequency shifting. At the moment, time-lapse photography is enjoying a burst of popularity, as the patient collection of moments over time allows us to speed the clock and witness changes that would otherwise escape our attention. When you combine this ability actually to see change happen with the fact of human life, you get something that can be doubly fascinating — and a little uncanny (which, after all, goes back to “can” and “ken”, knowing and seeing).
The most dramatic example of this is perhaps the two minute movie made by Karl Baden in which the frames were still photographs of his face taken daily over the course of 8432 days, or 23 years one month and three days (thank you WolframAlpha) — from February 23, 1987 until March 26, 2010. Baden adjusted things so that by and large each still is registered so that his eyes in the centre of the shot remain in position within the successive shots. (I confess that the OCD side of me conceived of this idea many years ago; but I brag that the larger lazy side of me never took any steps to do anything about it.) I find it interesting to see how the effects of aging don’t appear strongly until towards the end. You might notice things differently. At any rate, here is Karl Baden over time.
This is clinical, which might take some of the wonder away. For a much more artistic but much less compressed example of lives lived, have a look at forty years worth of annual portraits of the four Brown sisters, featured recently in the New York Times. Here you’re not hustled through a life but have time to dwell at stations along the way and to appreciate the nobility and beauty of the subjects (nos semblables — nos soeurs).
As I write, the first winter storms have descended upon Calgary, while out here on the left coast both Mother Nature and the provincial government still refuse to acknowledge the stubborn truth that fall is here and it’s high time for skies to turn soggy and kids – especially my kids – to be back in school. But facts are facts, and the traditional busy season is now upon us. That means it’s also time for your marketing vehicle’s fall tune-up.
I know, I know; you’ve been dreaming of ditching your existing model for one of those new-fangled TESLAs that are both 100% electric (fully-responsive web design that automatically adjusts for desktop, tablet or mobile) as well as being visually beautiful examples of understated elegance. But your parsimonious partner is having none of it, and insists there’s no money in the family budget for such luxuries this year. ‘Twas ever thus.
That being the case, I’ve outlined below some steps you can take to ensure your machine is at least in proper working order for the long winter ahead, along with some tweaks you might consider to improve its performance. Some of these you can take care of yourself, while others might require your preferred grease-monkey (web-developer)’s assistance. Without further ado:
1. Take an Odometer Reading (Consider Site Age/Functionality)
If you’ve got a vehicle that’s only a year old, this is just a cursory check. But if your ride is already long in the tooth or prone to breakdowns, you know you need a long hard think every time an issue arises about whether you should really sink more money into it. After all, you are not wrong that electric (responsive design) is the way things are going, and these machines do have a finite lifespan. Think about the workload you need your vehicle to handle over the next 12-36 months and make an honest assessment of whether your current model is up to the task or can be made functional with a few aftermarket accessories. If the answer is no, further negotiations with your partner on a replacement might be in order.
2. Conduct Engine Diagnostics and Check Wear on Tires & Brakes (Run a Google Analytics Report)
How has your vehicle actually been used over the last few years? The diagnostics report will tell you. Certain parts of your vehicle might be doing all the work, while others are left virtually untouched. Is your engine (home page, lawyer bios) firing on all cylinders? If your tires or brake pads (practice pages, news items) are being worn thin, consider beefing them up.
3. Change Oil and Top Up Fluids (Software Updates / Plugins)
Despite what your partner might believe, you know these things don’t run forever without regular maintenance. Check your oil (WordPress or other CMS software updates) and top up your fluids (plugin updates). Ignoring these basic tasks is one of the primary causes of vehicle breakdown, and left long enough can even result in blowing your engine completely (hacked website).
4. Perform Wheel Alignment (Optimize a User Scenario / Website Path)
Do your steering inputs work correctly – in other words does your vehicle actually go where you point it (do the visitors you want enter your site at a proper starting point and take a logical sequence of steps to your desired end results)?
Example: Client visits lawyer bio, and then clicks through from sidebar link to upcoming webinar by that lawyer, proceeds to online webinar registration form and submits registration.
5. Test the On-Star System (Contact Page + Newsletter Signups)
Does your contact system work smoothly and efficiently? (Are a Google Map and parking instructions included? Are your key contacts including non-lawyer admin staff readily accessible from this page?) Is your system up to Code? (Canada’s Anti-Spam Legislation – CASL). Some of the major third-party suppliers (MailChimp, Constant Contact et al.) have pre-built some of the major CASL-compliance steps into their systems so that new email signups are covered from the get-go.
6. Put On Winter Tires (Create a Seasonal Campaign Landing Page)
Conditions change throughout the year. Adjust your vehicle to adapt to the outside environment. (Create a new landing page to support a current initiative or marketing campaign).
7. Clean and Detail Vehicle (Remove Outdated Content, Dead Links)
Little things still count. Remove the unwanted debris of past journeys and keep your vehicle’s appearance in order (delete bios of departed employees, defunct practices, and check external links).
8. Plan Some Road-Trips and Preload Destinations into your GPS. (Set Up Conversion Goals)
Don’t just drive your machine aimlessly around town. It’s equipped – or should be – with a powerful trip computer (Google Analytics again) where you can load up desirable destinations in advance (Conversion points – e.g. newsletter signups, consultation request forms, event registrations, click-to-call buttons on mobile sites). The trip computer will then keep a record every time one of your preferred destinations is reached so that you can monitor your progress over time.
9. Fuel up (Create Fresh Content)
You won’t get very far if you never put any fuel in the tank. Gas up. For best results, use premium unleaded (client-focused plain English writing, original work from your lawyers, high-quality video & photography, blogs).
An immigration judge in Atlanta denied an attorney’s request to delay a hearing that fell during her six-week maternity leave and then scolded her in front of a packed courtroom when she showed up with her 4-week-old strapped to her chest and the infant began to cry, the attorney said.
Well played, mom.
Staci actually broke this story, and the AP apparently reported it without giving her credit. Lame. ↩
Today, the University of Ottawa is organizing Government Information Day to examine the many challenges of organizing, digitizing and preserving often finicky government documents.
We all use them every day: rules and regulations, Hansards, parliamentary committee reports, government agency documents, court records, official stats, public sector scientific and technical reports, etc.
Anyone who has ever had to track down an old order-in-council or find a controversial pollution report by government scientists will appreciate how hard it can be.
For the past little while, the CLA Government Library and Information Management Professionals Network, part of the Canadian Library Association (CLA), has been publishing 13 Questions With…, a series on its website that profiles a member of the Canadian library and IM community every week.
In celebration of Government Information Day, the Network has presented three profiles this week of people from the field of government documents librarianship:
Illinois lawyer Joanne Denison created a blog about courtroom corruption that landed her in hot water with the Illinois Attorney Registration and Disciplinary Commission (IARDC) for “alleging professional misconduct in making false statements on her Blog.” In a creative and novel response, Denison tried suing the IARDC for including content from her blog in its complaint.
Good design is the foundation of a website that brings in business. Whether your marketing focus is on offline networking or search-engine optimization, your website must convince potential clients to take the next step toward hiring you.
We have been showcasing the best law firm websites for five years, and we have found that the best-designed law firm websites have some things in common. A well-designed website should look good, of course, but the reason to take the design of your website seriously is because a well-designed website persuades clients to contact and hire you.
Compelling copy and solid search-engine optimization are also important, but in this white paper our focus is design — design that helps turn visitors into clients.Get the White Paper
To get “10 Things the Best Law Firm Website Designs Have in Common,” just fill out this short form and we’ll send it to you.First Name *
First Amendment lawyer Marc Randazza has found a gem: an opinion from the Texas Supreme Court quoting Walter Sobchak in “The Big Lebowski” on prior restraint (see the video above). With this, you can cite to a case instead of a movie. Here is the citation you need:
Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).
I’m not sure about those all-caps, but I will defer to Marc.
The Ontario Human Rights Tribunal recently found that when a Chinese Canadian employee was terminated from his employment, he was discriminated against on the ground of place of origin, and partly because of his lack of English proficiency.Facts of the case
Yongbin Liu was born in China and came to Canada 10 years ago. He worked for Everlink Payment Services Inc. as a help desk support analyst on a part-time basis from June 1, 2009, to February 26, 2011, and full-time from February 27, 2011, to May 31, 2012.
Everlink provides services and technology to the financial industry.
On May 31, 2012, Everlink terminated Liu. He was told that his position was being eliminated due to reorganization and there was no other position for him in the company because he did not have the appropriate skills.
The employee filed a human rights complaint stating that the employer discriminated against him because of his race, colour, place of origin and ethnic origin contrary to the Human Rights Code. He believed he was terminated because of his accent and lack of proficiency in speaking English. He also claimed that one of his supervisors engaged in a course of harassing behaviour toward him by publicly berating him and denying him certain benefits.
Everlink maintained the decision to terminate Liu’s employment was part of a larger restructuring and not related to his language issues, and that there was no harassment.Discrimination based on language
Liu was the sole help desk analyst. The job involved finding solutions to information technology problems encountered by other employees of Everlink. During his employment, he met the objectives on all four of his performance reviews and received a merit increase and incentive bonuses for two of those years. However, Liu acknowledged his English could be improved, and his supervisor, Steve Watkins, claimed there had been complaints about his English language skills.
After his 2011 performance review, Watkins prepared a development plan to assist Liu in improving his verbal and written skills in English, including a series of online English as a Second Language (ESL) courses and tests. However, another manager, Bruce Rice, was soon assigned to Liu and he did not follow up on the development plan set up by Watkins. In his subsequent review, Rice found that Liu met performance expectations.
Everlink argues that if the termination was as a result of poor language skills that were needed for Liu to perform his job, this termination was unrelated to any protected ground under the Human Rights Code, thus Liu’s complaint should be dismissed.
Although language is not a prohibited ground of discrimination under the Code, an employer may be able to establish that a certain level of English language proficiency is a bona fide occupational requirement for a given position. However, in order to do so, the employer must demonstrate the language requirement meets the following three-part test:
In the tribunal’s opinion, there may be circumstances in which an individual’s ability to speak English is connected to his or her place of origin, which is a protected ground under the Code. In the present case, the tribunal found there was a nexus between Liu’s place of origin and his perceived difficulties in communicating verbally in English. Being born in China, English is Liu’s second language and his difficulties of communicating in English stem from that fact. Despite Liu’s language difficulties, he clearly met the expectations of his job as he worked there for three years, graduating from part-time to full-time, succeeding in performance appraisals, and getting bonuses.
Without going into details, several email exchanges between management heads including HR indicated that Liu’s lack of English proficiency was a factor in the termination. However, Everlink failed to demonstrate that there was a language proficiency standard for an employee in his role, or that Liu had failed to meet any language standard.
The tribunal therefore concluded that Everlink had discriminated against Liu on the basis of his place of origin. He was awarded 11 months of lost wages and $15,000 as compensation for injury to his dignity, feelings and self-respect.Harassment claims
Liu claimed that during the course of his employment, Ray Boorman, who in 2012 became Liu’s final supervisor, bullied or harassed him on a number of occasions by ignoring Liu, never being friendly, blaming him for things that had nothing to do with him, and shouting at him in front of other employees. In his view, this treatment was unfair.
Additionally, Liu believed that he was denied certain benefits provided to other employees such as a long-distance data travel package. He wanted the package to use his Blackberry and computer during an upcoming vacation to China. He was told that no package would be purchased for him as the company had begun to buy such packages only for executives, managers and critical support staff. He was also advised that the company would like him not to take his Blackberry with him on his vacation. Liu received a further email stating that there was an informal policy that only managers and key employees were permitted to carry the company’s equipment outside of normal work hours or locations. He indicated that the company’s equipment was not to leave the province for legal reasons that he would not get into. The supervisor ended his email stating “Personally though, Yongbin take the vacation time… Without worrying about Everlink!”
According to the tribunal, although Liu felt that he was unfairly criticized when his supervisor raised his voice at him, these incidents did not amount to harassment under the Code. In fact, Liu could show no evidence that there was a link to any of the grounds protected under the Code. At most, this was a case of general bullying, not based on Liu’s ethnicity, and the tribunal does not have jurisdiction over general claims of unfairness.
Moreover, Liu was not discriminated against because of the long-distance package issue. The evidence given by Everlink was more credible, and there was no evidence to support Liu’s conclusion that his race, ethnic origin, or place of origin were factors in the decision to stick to a strict interpretation of the company policy to deny the package.Lessons learned
Not every instance of unfairness or perceived bad treatment results in a finding of discrimination at the Human Rights Tribunal, because there has to be a connection between that adverse treatment and a prohibited ground under the Human Rights Code. Credibility and an examination of the entire context are always considered in a human rights case. Sometimes the tribunal has to decide what happened after hearing drastically different stories, and asks what happened “on a balance of probabilities.”
However, making decisions about existing and potential employees based on English language proficiency can give rise to considerable liability. It is important for employers to avoid selection criteria that may discriminate based on how a candidate speaks (e.g., a requirement that a successful candidate have “unaccented” English language skills or English proficiency when no standards exists). If a position requires a specific degree of English language proficiency, have and apply an objective assessment that can pass the tribunal’s three-part test.
Dianne Markley, a professor at The University of North Texas (UNT), whose graduate research focused on how accents affect the hiring process, says it is “almost impossible to speak any language acquired later in life without an accent.” A UNT study showed “an incredibly strong statistical correlation between judging someone as cultured, intelligent, competent, etc., and placing them into prestigious jobs”, based on the lack of a readily identified accent.
According to Markley, an accent is “a pattern of pronunciation” that is different from whether a person uses language well and forms sentences correctly. “A person can speak flawless English, but an accent causes him or her to be seen as someone who can’t do the job.”
The requirement for English proficiency, and the degree of proficiency required, must bear an objective relationship to the essential requirements of the job, and be a bona fide occupational requirement that is imposed in good faith.
In these circumstances, the requirement for the position must focus on the particular language needed to function in the job, and not on the place of origin, ancestry, ethnic origin or race of candidates for the position.
So you want to write your own website copy? I highly recommend you don’t, for these two key reasons:1. You Have More Important Things To Do
Your time is precious, which means you should focus it on performing tasks that only you can handle. Like writing a brief. Or appearing in court. Or meeting with a prospective client. The list goes on.
Your business needs you to do what you are good at, as much as possible. It does not need you to spend countless hours figuring out what pages to have on your website, what copy should go where, or which words to use. DIY marketing is not the best way for you to spend your time.2. Someone Else Can Write It Better
This is the crux of it, of course. You went to law school to learn about law, not writing marketing copy. Even if you studied marketing in undergrad, you have not spent the past few years keeping up with online marketing trends and best practices. A copywriter, on the other hand, does just that. Such a writer also knows how to write for online users, including how to structure and format copy for greater engagement. By working with an experienced writer, especially one well versed in the law, you increase your odds of having effective website copy without sacrificing your time.If You Insist on Writing Your Own Website Copy
Writing and publishing website copy is important when it comes to online marketing. A professional writer can capture your voice and your message. If you decide that writing for your website is best left in your own hands, however, then I suggest you embrace the following five tips:1. Forget Everything You Learned In Law School
When it comes to writing, that is. Legal writing and website copywriting are two distinct skills. For instance, if you want to connect with your audience, you need to write at an 8th-grade level, not a 16th-grade level. You need to stop writing long sentences and paragraphs and you need to avoid footnotes and sub-clauses. And you should absolutely stop throwing around legal phrases or terms of art that people outside the legal field don’t understand. This business law firm gets it right (and may be one of the reasons it was one of this year’s best law firm websites).2. Let Go of Your Ego
Your website is not about you. It is about your prospective clients. What has meaning in the legal community may have little to no value to people outside of it (Martindale-Hubbell ratings, anyone?). Focus instead on the fact that people are looking for your services for a reason. They need help, and they want to know whether you can help them. They are looking to see if you can answer a few simple questions before they contact you. If you deliver the basics, they will reward you with phone calls and email inquiries.3. Put Yourself In the Shoes of a Prospective Client
What is your prospective client looking for? What are his or her concerns? What common problems may arise? How are they feeling at the exact moment they find your website? Write content that speaks to your client’s fears and future, and you will find that you have created content that truly connects.4. Sprinkle In Some Personality
The more you can be yourself, and the more you can show your audience who you are, the greater likelihood you will make a connection with your readers. Or have fun with your site, as humor is a great ice breaker. By adding personality to your site, your have a higher likelihood of further engaging with your prospective clients, which helps bring those prospects farther down the sales funnel. One great example of personality that I’ve seen is on the lawyer profiles of this website.5. Do Not Assume You Know How to “Do SEO”
Optimizing your website for search engines does not mean stuffing as many keywords into a page as possible. And please, for the love of all things holy, stop thinking that all you need to do is use the following combination everywhere: City + Practice Area + Lawyer. It takes time, research and experience to figure out what works right on your website from a search standpoint. So even if you write your own content, you should still hire an SEO specialist to help with your search engine optimization efforts.
Start following these tips and you will find that your content will at least begin to outperform your competition. But if you really want to make an impression on your prospects, you are better off reaching out to a trained copywriter who understands your industry and the Web.
The annual International Legal Technology Association (ILTA) conference was held in Nashville last month. (See Kate Simpson’s posting last year her take on last year’s conference in Las Vegas: http://www.tangledom.com/ilta-2013-in-fabulous-vegas/.) I find the ILTA conference to be very fulfilling. Not only are there a plethora of good, substantive sessions (50 or more every day, for four days), but the conference also provides an opportunity for me to have good, in-depth conversations with my counterparts in large US and Australian firms.
For those who are members of ILTA, audio recordings of five of the six knowledge management (KM) sessions have been posted on the ILTA site. So even if you weren’t able to attend, you can at least listen to those sessions. (The one KM-stream panel not recorded was the one I participated in, entitled It’s a Failure Party! How to Celebrate these Learning Opportunities. Each of us talked about various initiatives that had not been successful and what we’d learned. But in order to protect the guilty, as it were, we imposed the Cone of Silence.)
With 1,600 attendees and about the same number of vendors, trying to identify general themes is challenging. What you’ll read below will necessarily reflect my biases (cf. the analogy of the five blind men describing an elephant), but here goes.
What seemed to me to emerge from the various sessions were discussions about the effect of digitization, the effect of increasing computing power, a broader focus on process improvement, cybersecurity and the move to the cloud as both separate and related themes, young lawyers, and “What does the future hold?”
Digitization and exponential growth
The overwhelming impression I had at this year’s conference is not that just that The Change is permanent, which I think everyone from Adam Smith, Esq. on agrees on, but that it is starting to pick up momentum. (By “The Change,” I refer of course to what’s happened since the Great Recession. As someone said, “Before 2008, all law firms participated in market growth; now, we’re fighting for market share.”)
The Day 1 keynote speaker, Peter Diamandis, spoke about The World of Disruptive Technologies and Abundance. One of the key points he made was about the six stages of technical disruption, which starts the first step, the digitization of content. The disruptive change that results from digitization is, at first, deceptively slow. The first digital camera, for example, was developed by Steve Sasson at Kodak in 1975. But the company believed that it was in the business of prints and chemicals and opted not to pick up on the digital camera. It took a while to get from that initial camera, the size of a small suitcase, to where we were even, say, 15 years ago, but the change since then has been remarkable. And human beings, he stressed, are unable to comprehend the nature of exponential growth, except in retrospect.
The analogy for law land, it seems to me, is that we are seeing more and more the effects of digitization in areas such as eDiscovery and starting to see it in areas like contract review. But one of Diamandis’s points was that, once the “digital genie” is out of the bottle, it never goes back. So law firms that think that things will change but at a moderate pace and they will (somehow) manage are not recognizing the exponential effects that these changes will have on the practice of law.
The effect of increasing computing power
Perhaps not surprisingly, speakers in several different sessions, and not only Peter Diamandis in his keynote address, drew attention to the fact that IBM has partnered with the Sloan-Kettering Cancer Hospital in New York to use IBM’s Watson (famous for having beaten Ken Jennings in Jeopardy) as a tool in cancer analysis. See this article from Forbes, which notes that “IBM Watson’s business chief Manoj Saxena says that 90% of nurses in the field who use Watson now follow its guidance.”
Further, in January of this year, IBM announced that it is providing a new business unit with $1 million in funding to commercialize its use. Several speakers made the point that providing cancer diagnoses is probably at least as difficult a process as contract drafting in M&A deals (if not significantly more so!). What happens when the power of Watson is turned upon the legal segment?
The last few ILTA conferences have included presentations by a handful of leaders in process improvement, firms such as Seyfarth Shaw, Littler Mendelson, and Baker Donelson. What they showed us then was leading edge. This year, on the other hand, there were a number of panels on process improvement. Clearly what was cutting edge is now becoming much more widely adopted.
Cybersecurity and the move to the cloud
I attended a couple of risk management-related sessions, at which there was a focus on cybersecurity, but not just in the sense of the threat posed by hackers attacking law firm systems to access valuable knowledge about things like impending deals. One session focused on the increasing number of clients who are asking their law firms to ensure that their own content, which they view as proprietary, is locked down and only available to the lawyers working on their files. Any such initiative runs counter to the firm’s KM initiative, which seeks to leverage existing knowledge. How do we build knowledge and train younger lawyers in the face of demands for the Balkanization of firm content?
Another significant change I noted is that more firms are moving to the cloud, although at this point it is still a small minority of firms. When law firms investigate various cloud computing service provides, we were told, they expect an extremely high level of security (not surprisingly, given law firms’\ professional liability responsibility for safeguarding the confidentiality of client work). The irony, of course, is that, when they do so, they demand a level of security far higher than what is present in their own in-house environment. Most cloud providers offer far greater security than all but the largest firms are able to put in place, so my question is whether we should not all be moving to the cloud.
New thinking from young lawyers
At a session entitled The Rise of Expert Systems: Threat or Opportunity to Traditional Legal Services?, Michael Mills of Neota Logic and Tanina Rostain of Georgetown University Law Center talked about the Georgetown Iron Tech Lawyer competition. During the competition, law students, during the course of one semester, identify one particular regulatory issue to attack, and then, using Neota’s decision-tree software, develop a program that allows “ordinary people” to get answers to complex legal issues. The apps they develop are then “published” on the web.
In spring 2014, the award went to Unemployment Benefits Hearing Coach. As the name implies, the app provides guidance on how to prepare for a hearing and assists claimants and employers in understanding their rights. This is a very exciting development in light of Richard Susskind’s comment in The End of Lawyers? that there is a huge underserviced market of consumers with “ordinary” legal issues they must content with.
The crucial comment, for me, was from Michael, who noted that it was refreshing and invigorating to hear law students talking excitedly about issues relating to user interface and user experience.
Here were students who were keenly focused on the client experience. But as Mary Abraham recently asked rhetorically in Above and Beyond KM, “While every law firm claims to put its clients first, does it really?” Here, Michael was saying, was a new generation of aspiring lawyers who did put clients first. What happens as those lawyers mature in their various law firms?
What does the future hold?
While ILTA is very useful in getting a snapshot as to where we are right now, among the most invigorating sessions were the ones that looked in the crystal ball to try and predict the future. The Wednesday keynote speaker was Rohit Talwar, whose topic was Unleashing IT To Disrupt and Define and Differentiate Future Strategies. Rohit spoke as one of last year’s keynotes, and his role this year included bringing us up to date on ILTA’s Legal Technology Future Horizons study. The study itself is a fascinating view into current trends. (You can find a four-part, in-depth analysis of this study on the [UK] site Elephant Creative: here, here, here, and here.)
Attendees of his keynote session also received a handout that identifies the three horizons of change, namely Now, the Medium Term, and the Long Term, and predicts how various new technologies will play out in the legal segment over those three horizons.
On the last day I attended a session entitled What’s That? New and Cool Technologies. As the title implies, the panellist were looking at current (very leading edge) technologies, which gave us some insight into what we might be seeing in law firms in the next few years.
The most invigorating session, for me, however, was one on the last day entitled Do Robot Lawyers Dream of Billable Seconds? There was, however, so much “meat on the bone” from that session, that I propose to defer my discussion of the various issues addressed there to my next posting.