Every lawyer has had it happen. You think of the perfect follow-up question after the deposition ends, or you devise the pithy answer to the judge’s question after the hearing. Often, we perform well below our best in high-stakes situations, despite hours of dedicated preparation. Here is what’s going on in your brain and what you can do to perform closer to your potential, even when the pressure is on.Why You Choke Under Pressure
You choke under pressure because the region of your brain responsible for executive functioning becomes hijacked by fear, worry, and nerves. The prefrontal cortex is the part of your brain responsible for advanced cognitive processes, things like language processing, working memory, and executive decision-making. One of the most important functions of the prefrontal cortex is to serve as the store of short-term memory — often the key to good lawyering. When we are synthesizing responses to judge’s questions or negotiating deals, we are relying heavily on our prefrontal cortexes.
University of Chicago psychologist Sian Beilock, the author of Choke, observes that pressure-filled situations affect the prefrontal cortex, depleting the brain’s working memory. Worry essentially sabotages the prefrontal cortex, Beilock says, thereby diminishing your ability to perform complex thinking.
Strong emotional inputs, hallmarks of many intense situations, also contribute to suboptimal performance. Emotions trigger the amygdala, the part of the brain responsible for processing emotions and our fight-or-flight response. When you experience a strong emotional input, like a judge yelling at you or unreasonable opposing counsel, your amygdala kicks into high gear. In what has been termed an “amygdala hijack” by Daniel Goleman, author of Emotional Intelligence, the amygdala takes over the most rational parts of our brain, including the prefrontal cortex.
Indeed, research shows an inverse relationship between the amygdala and the prefrontal cortex. When the amygdala is active with blood and oxygen, there is less blood and oxygen in the prefrontal cortex. This means that our logical thinking and working memory are diminished because there is less blood in the prefrontal cortex. An amygdala hijack increases the probability that a lawyer won’t think of that clever response on the spot. He or she can’t; his or her executive decision-making center — the prefrontal cortex — doesn’t have the resources it needs to work well.How to Reach Your Potential Under Pressure
The good news is that there is a lot we can do to perform better under pressure. The even better news is that many of these practices are very simple (if not always easy).Meditate
Meditating for just 10 minutes before a big event helps, even if you have no meditation experience. Beilock gave people 10 minutes of meditation training before a big exam. The people who received the training scored an average of 87 whereas the people who received no training scored an average of 82 even though the two groups had the same ability. This finding is consistent with the numerous other studies indicating that meditation reduces stress and anxiety while improving memory, focus, and the ability to pay attention.Practice with Added Stress
We all know we need to practice to perform well, but the trick to reducing your choke factor is to add extra stress, says Beilock. In one study, one group of golfers was told their practices would be filmed for later examination by experts. A second group just practiced. The people who practiced with the extra pressure performed better when tested.
The extra stress acclimates your body and brain to pressure, so when stressors strike during a big event, you will know how to respond. Try practicing in front of a camera and asking more seasoned lawyers to review the footage with you. Do more moot courts if you can. Simulate negotiations and ask critical colleagues to observe. To be sure, all of these practice scenarios cost money and time, but if the stakes are high, the stressful practice will be worth it.Write About Your Feelings Before the High-Stakes Event
A University of Chicago study showed that people who journaled about their feelings for ten minutes before a big test scored higher than people who wrote about something else or wrote about nothing. Notably, people who reported a history of text anxiety showed the most improvement. Researchers theorize that writing about fear and other feelings may ease anxiety because it allows people to express and name their emotions, which may calm them and free up working memory to focus on the test. For lawyers, it may be worthwhile to set aside time before an important hearing or event to jot down how you’re feeling about the upcoming event. You’re likely to perform better.Talk to Yourself in the Third Person
We talk to ourselves all the time, particularly when we are mentally rehearsing an important speech or performance. It turns out that how we talk to ourselves affects both our anxiety levels and the quality of our work. University of Michigan scientists discovered that if you talk to yourself in the third-person, as opposed to the first-person, your anxiety will drop, and you will speak better in public.
In one experiment, people were told to give a speech to interviewers about why they are qualified for their dream jobs. They were given just five minutes to prepare and were not permitted to make any notes. Before the participants delivered their speeches, one group reflected on their feelings using the third-person, and the other group used the first-person. Those who talked to themselves using third-person references (like “you” or their names) performed better according to judges. The people who used the third-person also felt less anxious about their speeches. So go ahead, talk to yourself. Just be sure to say positive statements like, “You are going to do great! You’re ready.” Don’t say, “I’m sure I’ll be great.”
The next time you have to perform at your peak and the stakes are high, build in some extra time to try some of these practices. You will likely perform better and feel more confident, too.
Featured image: “Under pressure” from Shutterstock.
Stop Folding Under Pressure: Why It Happens and What to Do About It was originally published on Lawyerist.
Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.
For this last week:
1. R. v. Nur, 2015 SCC 15
 Gun-related crime poses grave danger to Canadians. Parliament has therefore chosen to prohibit some weapons outright, while restricting the possession of others. The Criminal Code, R.S.C. 1985, c. C-46, imposes severe penalties for violations of these laws.
 Section 95(2)(a) imposes mandatory minimum sentences for the offence of possessing prohibited or restricted firearms when the firearm is loaded or kept with readily accessible ammunition (s. 95(1)) — three years for a first offence and five years for a second or subsequent offence.
2. Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16
 The state is required to act in a manner that is respectful of every person’s freedom of conscience and religion. This is a fundamental right that is protected by the Quebec Charter of human rights and freedoms, CQLR, c. C‑12 (“Quebec Charter”), and the Canadian Charter of Rights and Freedoms (“Canadian Charter”). Its corollary is that the state must remain neutral in matters involving this freedom. The interplay between freedom of conscience and religion, on the one hand, and this duty of neutrality, on the other, is sometimes a delicate one.
 The respondents, the City of Saguenay and its mayor, would like to continue the recitation of a prayer at the start of the municipal council’s public meetings. In their view, the issue is one of respect for their freedom of conscience and religion. The appellants, the Mouvement laïque québécois (“MLQ”) and Alain Simoneau, are asking that the respondents cease this practice, which, they submit, interferes in a discriminatory manner with Mr. Simoneau’s freedom of conscience and religion. They demand that the City and its official comply with the state’s duty of neutrality.
3. Paradis Honey Ltd. v. Canada, 2015 FCA 89
 The difference between private parties and public authorities matters not. For reasons never explained, Canadian courts have followed the same analytical framework for each: we examine the duty of care, standard of care, remoteness, proximity, foreseeability, causation and damages.
 To make this analytical framework suitable for determining the liability of public authorities, courts have tried gamely to adapt it. And then, dissatisfied with the adaptations, they have adapted the adaptations, and then have adapted them even more, to no good end.
The most-consulted French-language decision was Mouvement laïque québécois c. Saguenay (Ville), 2015 CSC 16
 L’État est tenu d’agir dans le respect de la liberté de conscience et de religion de chacun. C’est un droit fondamental que protègent la Charte des droits et libertés de la personne du Québec, RLRQ, c. C-12 (« Charte québécoise »), et la Charte canadienne des droits et libertés (« Charte canadienne »). Son corollaire veut que l’État demeure neutre en la matière. L’interaction entre cette liberté de conscience et de religion et ce devoir de neutralité est parfois délicate.
 Les intimés, la Ville de Saguenay et son maire, désirent continuer la récitation d’une prière au début des séances publiques du conseil municipal. Pour eux, il en va du respect de leur liberté de conscience et de religion. Les appelants, le Mouvement laïque québécois (« MLQ ») et Alain Simoneau, demandent plutôt qu’ils cessent cette pratique qui, selon eux, attente de façon discriminatoire à la liberté de conscience et de religion de ce dernier. Ils exigent que la Ville et son représentant respectent l’obligation de neutralité qui incombe à l’État.
* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.
“In matters of grave importance, style, not sincerity, is the vital thing.”
“Originality in the law is viewed with scepticism. It is only the arrogant fool or the truly gifted who will depart entirely from the established template and reformulate an existing idea in the belief that in doing so they will improve it. While over time incremental changes occur, the wholesale abandonment of established expression is generally considered foolhardy.”
Duncan Webb, ‘Plagiarism: A Threat to Lawyers’ Integrity?’ (2009), International Bar Association
Reasons for decisions are the windows into the decision making process. Reasons should ensure transparency in decision making, allow for accountability for decisions (through judicial review or just generally) and be accessible to the average reader. In this way, reasons for decision are an important part of access to justice.
There is no shortage of advice offered to adjudicators on decision writing at conferences and seminars. A recent article by Justice David M. Brown in the Energy Regulation Quarterly is a good summary of the advice adjudicators receive in training.
In this column I want to focus on writing style and some of the research on comprehension highlighted in Steven Pinker’s recent book, Sense of Style: The Thinking Person’s Guide to Writing in the 21st century.
We now know that the bar has been set very low in terms of writing style for judges, and by extension, for adjudicators. The Supreme Court of Canada decided in 2013 that a judge could largely copy from the parties’ submissions in his reasons: Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (CanLII). In that case, only 47 of the 368 paragraphs (13%) were in the judge’s own words. Writing for a unanimous court, The Chief Justice, noted (at paragraph 31): “Nor is lack of originality alone a flaw in judgment writing; on the contrary, it is part and parcel of the judicial process.”
The Chief Justice also quoted from an article by Professor Simon Stern:
Judges are not selected, and are only rarely valued, because of their gift for original expression. …judges usually prefer to couch their innovations in familiar forms, borrowing well-worn phrases to help the new modifications go down smoothly. The bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law. . . . [T]he effort to demonstrate that similar cases are being treated alike often finds its rhetorical manifestation in a penchant for analyses that have a déja lu quality — usually because the words have been read before.
The SCC has indeed set a low standard for decision writing, noting that the scope for judicial creativity is “narrow, but not non-existent”: “it finds expression in the ordering of the reasons and the disposition of the arguments and issues, and in the occasional eloquent statement of the facts or restatement of the law.”
After reviewing the low standard set by our highest court, you might wonder why adjudicators should bother writing with style. Style in writing does matter, Pinker points out. It ensures that writers get their message across, “sparing readers from squandering their precious moments on earth deciphering opaque prose”. Style also earns trust. Consistency and accuracy in writing reassures readers that the writer takes equal care in conduct they cannot see as easily. And, a beneficial side effect of style in writing is the beauty it adds to the world. We all have likely experienced the satisfaction of reading a well-crafted decision.
Some might think that opaque prose is a deliberate choice, as summarized by Calvin (of Calvin and Hobbes): “I realized that the purpose of writing is to inflate weak ideas, obscure poor reasoning, and inhibit clarity.” Pinker refers to this as the “bamboozlement” theory and he is skeptical that it explains poor writing. He prefers the Hanlon’s Razor explanation: never attribute to malice that which is adequately explained by stupidity. The stupidity he is referring to is the failure of the writer to imagine what it is like for someone else not to know something that you know (“the Curse of Knowledge”).
The inability to see a topic from the perspective of someone who knows less than you is pervasive and has been studied extensively by psychologists. The common affliction of hindsight bias is a good example. This is the tendency to think, after the fact, that an outcome must have been obvious before the fact. Pinker reviews a number of studies that have shown how poor adults are in estimating other people’s knowledge and skills. One study showed that experienced cell phone users guessed that it would take a novice 13 minutes to learn to use the phone, when it took 32. These studies lead to an important conclusion for decision makers: the better you know something, the less you remember how hard it was to learn. As Pinker notes, this can lead the experienced writer to not bother to explain jargon, spell out the logic or supply necessary detail.
The common advice given to adjudicators is to “write for the losing party”. This is similar advice given to writers generally: “always remember the reader over your shoulder”. Pinker notes that this advice is not as effective as you might think. This is because just trying harder to put yourself in someone else’s position does not make you much more accurate in figuring out what that person knows. However, it is a start, as occasionally people do learn to discount their knowledge when they are shown how it biases their judgment.
Pinker highlights the insidious nature of the curse of knowledge: it conceals not only the contents of our thoughts from us “but their very form”. When you know something well, you don’t realize how abstractly you think about it. You also forget that other people, who have lived different lives, have not gone through the same history of “abstractification”. This is due, Pinker states, because of two actions of the mind: chunking and functional fixity.
Human working memory can only hold a few items at a time – psychologists believe our brain’s capacity is limited to three or four. The workaround is packaging ideas into bigger and bigger units, which have been termed “chunks”. Each chunk, no matter how much information is crammed inside it, occupies a single slot in working memory. Pinker gives the following example: of the following sequence of letters, we may only be able to retain a handful: M D P H D R S V P C E O I H O P. If, however, we group them in well-known abbreviations of MD, PhD, RSVP, CEO, and IHOP, we can remember all 16 letters (assuming that we know that IHOP stands for International House of Pancakes).
As Pinker notes, chunking is not just a parlour trick; “it’s the lifeblood of higher intelligence”. As we learn a new field, such as law, we master a large number of abstractions (or chunks) which can ease discussions with others in the profession. As Pinker writes, “an adult mind that is brimming with chunks is a powerful engine of reason”. But this “chunking” comes with a cost: an inability to effectively communicate with other minds that have not mastered the same chunks.
The amount of abstraction that a writer can get away with will depend on the expertise of the readers. However, figuring out what “chunks” have been mastered by your reader requires a gift of clairvoyance that we don’t have. Pinker also notes that we may be reluctant to use plain speech because it may indicate that we are not as sophisticated as we would like to appear. We also may worry that we are insulting the intelligence of the reader by spelling things out. Pinker notes that we’re more likely to overestimate the average reader’s familiarity with our world than to underestimate it. His tip is a good one for decision writers: assume that the reader is as intelligent and sophisticated as you are, but that she happens not to know something you know.
Expertise also makes ideas difficult to share because of functional fixity: as we become familiar with something, we think about it more in terms of the use we put it to and less in terms of what it looks like and what it is made of. This is illustrated by the famous “candle problem”. The task was to fix a candle on a wall without dripping wax, with the following items: a box of candles, a box of thumbtacks and a book of matches. The challenge arises from the functional fixedness of the boxes containing the candles and the thumbtacks. Very few people think of tacking one of the containers to the wall as a makeshift shelf to hold the candle. And the fact that you now think this was an obvious solution is also good example of hindsight bias.
Pinker says that because of these factors it is harder than you think to communicate to the average reader. This is largely because you are the last one to realize what will be unfamiliar to your readers. He suggests that the best way to escape the curse of knowledge is to get a “feedback signal” from the world of readers. In other words, show a draft to people who are similar to the intended audience and discover whether they can follow it.
That’s the approach I take in writing these columns and in writing decisions where I don’t have tribunal support. As Pinker notes, the advice sounds banal but is in fact profound:
Social psychologists have found that we are overconfident, sometimes to the point of delusion, about our ability to to infer what other people think, even the people who are closest to us. Only when we ask those people do we discover that what’s obvious to us isn’t obvious to them.
That’s why professional writers have editors. I have written elsewhere on the benefits of a good copy editor. I have also written in a previous column about literacy audits and access to justice. In my experience, very few tribunals employ professional editors. At most, decisions are reviewed by lawyers who, of course, are subject matter experts and unlikely to assist in escaping the curse of knowledge. This raises interesting questions of deliberative secrecy – how can an adjudicator share a draft with someone similar to his or her audience who, by definition, is outside of the tribunal?
Pinker does note that reviewers of your writing do not need to be a representative sample of your intended audience – often it is enough that they are simply not you. You should also be cautious about implementing all suggested changes, as each reviewer has a curse of knowledge of their own, as well as “hobbyhorses, blind spots, and axes to grind”.
Pinker has many more tips for writing, based on sound psychological principles. I will turn to some of them in a future column.
I’ve had several recent conversations with senior lawyers who are reluctant to delegate work to part-time administrative staff. They don’t want to be perceived as demanding. They’re afraid of confrontation.
They are actually more open to the concept of flexible work arrangements than most people give them credit for, but they need reassurances that part-time staff are just as committed to quality work as their full-time counterparts.
Unique challenges of delegating to part-time administrative staff
With more and more of us working outside the office or part-time, there is less opportunity for face-to-face communication, which means that it takes longer to build rapport and trusting relationships.
A lot of legal work – especially litigation –requires short turnaround times in response to changes in the schedule and scope of a matter. Team members need to be available and accessible. When this isn’t an option – in a smaller firm with a shallower pool of resources, for example – the impact can be onerous
Part-time workers are a growing segment of the Canadian workforce. More people are electing to work part-time instead of full-time for a variety of reasons. And more firms are reducing full-time administrative staff to control costs.
There is no quick solution
One lawyer I spoke with believes that part-time employees are less committed to “working hard” than full-time employees. Earlier in her career, she was let down by a part-time employee who repeatedly missed deadlines, refused to accommodate the occasional request to stay late and who sulked when delicately and professionally asked to explain mistakes. It has taken years for her to consider hiring part-time staff.
Efficient technology such as project management software and electronic file management systems make it easy to track work progress. But many aspects of delegation rely on context and communication that can’t be easily managed through data inputs.
Training is another consideration; firms might hesitate to invest in developing the skills of part-time staff if the long-term benefit of doing so is unclear or undervalued.
Ideas to investigate
Economic and demographic trends indicate that the number of part-time workers in the legal profession will continue to grow. Try to make the most of your working relationships by building trust and keeping the lines of communication open (that goes for all your working relationships, not just those with part-time staff).
Gerrit is intended to provide a light weight framework for reviewing every commit before it is accepted into the code base. Changes are uploaded to Gerrit but don’t actually become a part of the project until they’ve been reviewed and accepted. In many ways this is simply tooling to support the standard open source process of submitting patches which are then reviewed by the project members before being applied to the code base. However Gerrit goes a step further making it simple for all committers on a project to ensure that changes are checked over before they’re actually applied. Because of this Gerrit is equally useful where all users are trusted committers such as may be the case with closed-source commercial development. Either way it’s still desirable to have code reviewed to improve the quality and maintainability of the code. After all, if only one person has seen the code it may be a little difficult to maintain when that person leaves.
This is like something that may be worth doing to help make sure at least one other person is looking over code before it gets committed. Deploying code that only one of us has ever seen is a bit of a problem around here especially when it fails.
Modern DevOps with Docker: Interview with Avi Cavale, Shippable | Opensource.com http://opensource.com/business/15/4/interview-avi-cavale-shippable
Three things have converged recently that relate to being prepared. Thinking about Slawyers, I am certain that readers of this blog are likely those that support and espouse the notion of preparedness, I decided to write about preparedness from three perspecitives.
1. The unprepared (fly by the seat of your pants and deal with the consequences as they arise)
My youngest daughter is a musician. She recently finished her first year of university and is now looking for employment. Despite her mother and father’s strong (occasionally screechy) suggestions that she begin applying for summer work in March, she put the last polishing touches on her resume yesterday. Drives me absolutely bonkers – probably because I did the EXACT same thing after my first year of university.
Trying to gain some perspective, I asked myself the question, “Does her unpreparedness truly matter?” To decide the answer I thought about Maslow’s hierarchy of needs. She moved home (welcomed with open arms) so her basic physiological and safety needs are met. She has a close circle of friends and supporters who are also sharing job tips so her belonging needs are met. She will likely find a job (maybe not the best and most fulfilling that her parents would wish for her) in the next two weeks so ego/status will be under control and solving the lack of employment problem will bring some self-actualization.
Being unprepared in this instance is a very strong motivator for my lovely daughter to find a solution to being jobless. In short – my perception of her unpreparedness is not her monkey, but mine. Sigh.
2. The over prepared (way to much time spent on preparation compared to the task’s level of importance)
I recently moved offices to a different floor in our building. This involves packing and unpacking, but that is not part of my story on being over prepared. When I think about some of the things that I have not 5S’d out of my office drawers, I really think that there is an element of over preparedness to my pack-rat-itis. I have things like gift bags, blank note cards, contact lens solution (I rarely wear contacts) a rolodex with printed business cards alphabetically filed (?just in case I can’t get my contacts off of my smart phone, tablet, AND Outlook on my desktop?), and not less than 5 different bottles of eyeglass cleaner.
Really. I am ashamed of myself. I also have various lengths of network cabling and neatly rolled up flip chart paper showing processes that have already been turned into Visio diagrams – just in case.
On writing this, I decided to schedule some time to 5S my office. Five S is a philosophy embraced by Lean of sorting, storing, shining, standardizing, and sustaining an environment for maximum productivity.
3. The prepared (the just right amount of preparation – think Goldilocks)
I wrote an open book exam yesterday. I prepared by taking a 16 week course, purchasing a recommended study guide, bought access to a practice test, and downloaded an app that cycled through test questions. It was a difficult exam. I passed. Looking back on my preparation, even though it was extensive, it was just right.
Knowing just how much preparation time that you need in advance of ‘the big moment’ is a skill that is learned. It comes from past experience, personal comfort, and the ability to gather information in the moment that you don’t have immediately in front of you. One view of prepared might be to rely on their smart phone’s built in GPS, another’s might be to have their phone and a paper map, and another’s might be to have their phone, a map with a highlighted preferred route and a guide book with alternatives. My chef daughter says, “look in the fridge before you start dinner,” my musician daughter says, “never perform without practicing,” I say, be conscious of how prepared you need to be.
Lawyerist is a media partner for ALM’s 6th Annual Law Firm Marketing and Business Development Leadership Forum in New York City on May 19th and 20th. Although this is traditionally a forum for medium and large law firms, solo and small-firm lawyers and marketing consultants can learn a lot, too. Here are some of the sessions on the agenda:What’s Trending in 2015?
The pressures on the legal industry have never been more intense but firms are rising to the challenge of distinguishing themselves as value-driven, creative service providers. Or are they? We’ll start the event with an expansive look at trends in the legal industry including:
For over 7 years it has been open season on discounting legal fees, both hourly and fixed. Buyers of legal services want to ensure they are getting fair value for their budgets, in a market that continues to be oversupplied. But any fee negotiation technique that relies exclusively on pressuring law firms to lower their margins has a natural limitation. In this session we will explore the extent to which those limits have been reached, and whether it is time for a model based on greater collaboration between client and counsel, a collaboration that can be supported and facilitated by procurement and business development. Specifically we will discuss:
Congratulations, your firm has 20K Twitter followers, industry-leading blogs, and a massive LinkedIn group. Achieving these content marketing heights took time, innovation, and significant injection of cash. But how are you demonstrating ROI to firm management? Who’s reading and reacting to your thought leadership, and how can those dots on your metrics report be connected to measurable objectives and goals?
ALM’s Law Firm Marketing and Business Development Leadership Forum, May 19–20 in New York City (Sponsored) was originally published on Lawyerist.
Don’t build your marketing plan around the strategies you want to employ. That’s step 4. First, you need to do a little background work to figure out which strategies make sense for your practice. This week, Karin and Sam talk through her 5-step marketing plan.
Plus, Sam and Aaron talk about a BigLaw April Fools prank that was in very poor taste but turns out to be a really good idea.Quality of Life is a Joke (to Some)
Here’s the email policy Weil Gotshal distributed on April 1st:
(1) Email will not be transmitted between 11:00 p.m. and 6:00 a.m. This will be implemented in the local time zone for each Weil office. This will be the default email setting, subject to opt-outs as described below.
(2) Emails will not be transmitted between 11:00 p.m. Friday and 6:00 a.m. Monday, also implemented in the local time zone for each Weil office and also subject to opt out.
(3) When an employee is on vacation, no emails will be transmitted from 11:00 p.m. on the day prior to start of vacation to 6:00 a.m. on the first day back at work after vacation. All emails during this time will be automatically responded to with a message that the recipient is on vacation and not receiving emails, and the name, email address and telephone number of a designated substitute for the duration of the vacation.
Then it wrote “We are proud to be taking a leadership role in caring about our colleagues’ quality of life.”
But that’s a really good email policy and you should probably adopt it — or an even more aggressive version — because it will make you a happier, healthier lawyer. It will also improve the quality of your work.Karin Conroy’s 5-Step Basic Law Firm Marketing Plan
Karin is a marketing pro who has been writing for Lawyerist since 2009. She’s been working on a series of articles laying out a basic, 5-step marketing plan. Today, we talk through all 5 steps:
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Podcast #15: Karin Conroy’s 5-Step Basic Law Firm Marketing Plan was originally published on Lawyerist.
In a recent defamation decision, the plaintiff spent nearly $550,000 on legal fees only to recover a $10,000 judgment. The plaintiff was not alone in racking up a large legal bill. The defendant spent nearly $250,000 on legal fees defending the claim.
After the conclusion of trial both sides sought their legal costs from the other side.
The plaintiff argued that it was successful in the result and therefore ought to be entitled to costs.
The defendant argued that the plaintiff should have brought its case in Small Claims Court, or under the Simplified Procedure, and should not be awarded any costs (and in fact that the defendant should have its costs as a result).
The decision provides a nice overview on the law of costs in the province of Ontario, including the principles which inform the court’s decision making, how offers to settle factor into the analysis, and how brining a lawsuit in the wrong monetary jurisdiction can have significant consequences.
The court found the case to be a battle of egos and about “turf warfare in the competitive world of diet medicine” rather than about reputation.
In the result, the court ordered each party to eat their own costs.
The case is a good lesson in how adjudicating over principle can be an expensive proposition.
Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on technology, research and practice.
Legislative History in Case Law
I was reminded that sometimes you can find a decent review of the history of a piece of legisaltion within written decisions. For instance, a discussion of the Election Act for Alberta was published in Engel v Alberta (Executive Council), 2015 ABQB 226 and includes a bit of legislative history. …
Getting Your Legal Writing Right
I remember the time that a favourite client of mine gave me a schooling in the art of legal writing – and proofreading. A retired lawyer (and the consummate gentleman), he had retained me to draft revisions to a fairly complex Last Will and Testament. He was a bit of a stickler. And I’m fortunate to have had the opportunity to have worked with him. Because even though my content was fine, he still had lots to say about the way my draft was set up. …
Visit Factory-reset.com for Factory Reset Codes*
When electronic devices work properly, you have no worries. But when they don’t, it’s a real pain in the rear! One of the most common trouble-shooting options is a factory reset – that special and specific combination of button presses and steps that restarts the device with standard factory settings. …
Last month, as part of a five-year SSHRC funded research project exploring the costs of justice, the Canadian Forum on Civil Justice released the first data from its national legal problems survey, “Everyday Legal Problems and the Cost of Justice in Canada”. Completed in 2014 with over 3000 respondents, the survey finds that everyday legal problems are ubiquitous in the lives of adult Canadians. Over any given three-year period almost 50% of adult Canadians will experience at least one legal problem that they find series and difficult to resolve.
What Are Everyday Legal Problems?
Everyday legal problems are the kinds of legal problems that arise when things go wrong in the normal activities of people’s everyday lives. Harassment at work, wrongful dismissal, unfair eviction, divorce, trouble obtaining support payments, having to dispute a will or a gym contract, are all examples of everyday legal problems. According to our preliminary survey data, the top everyday legal problems experienced by Canadians are: consumer problems, debt problems, and employment problems. Neighbor and family problems closely follow these.
Yet despite the high number of people that experience everyday legal problems, only a small percentage of people obtain legal help in dealing with them, and only a very small percentage use any part of the formal justice system to resolve them. Of those we surveyed, about 95%, took some kind of action to try to resolve their everyday legal problem and the vast majority, about 85%, said it was important for them to have the matter resolved. Nonetheless, almost 50% of people say the problem remained unresolved. For those who had resolved their problem only about 50% said they achieved most or all of what they had expected in the outcome. A whopping 40% said that they felt the outcome was unfair. In short, everyday legal problems are serious and difficult problems that can have major consequences in people’s lives – particularly if they remain unresolved.
Why do they Matter?
Everyday legal problems can have a negative effect on the social and economic wellbeing individuals and their families. Consider the following.
Put a little bit differently, over the three years covered by our study about 3.4 million people reported experiencing a physical health problem and/or high lives of stress as a direct consequence of that legal problem. That is more people than the combined populations of Edmonton, Ottawa, and Halifax!
Beyond the impact on the individual, everyday legal problems can potentially lead to considerable “knock-on” costs to the state. That is, they can increase the cost of publically funded services and programs. Consider that over the three years covered by our study,
When these numbers are used to calculate “knock-on” costs to the state, what we see is that unresolved legal problems can potentially result in an estimated,
When combined this amount is approximately 2.35 times greater than the annual direct services expenditures on legal aid.
These individual and pubic service costs are just a few examples of how everyday legal issues affect all of us and how failing to prevent and resolve them costs us all. Stay tuned! More survey data and analysis is coming soon.
To view our first fact sheet on these issues click here.
To read about why this data should matter to the legal profession in particular, read Omar Ha-Redeye’s recent Slaw piece here.
~ Nicole Aylwin, Ab Currie & Trevor Farrow
Every year, the Canadian Association of Law Libraries (CALL) hands out the Hugh Lawford Award for Excellence in Legal Publishing.
It honours a publisher that has demonstrated excellence by publishing a work, series, website or e-product that makes a significant contribution to legal research and scholarship.
The nominees for this year are:
The award will be presented to the winner at a reception during the 2015 CALL Annual Meeting in Moncton, New Brunswick in May.
Slaw.ca received the award in 2009.
Following up on his previous post on lawyers’ personality traits, Ian Hu (practicePRO and Claims Prevention Counsel at LAWPRO) discusses autonomy, a trait that helps lawyers do their job but makes them poor bedfellows in a law firm environment.
Dr. Larry Richard states in our LAWPRO magazine article “Herding Cats: The Lawyer Personality Revealed” that studies suggest high achieving lawyers score in the 89th percentile of this trait, which measures the degree to which a person is sensitive to externally defined rules, policies and procedures. A high autonomy score means that the person is more likely to be unresponsive to authority, find guidelines restricting, and dislike structured working environments.
The autonomous lawyer is a lawyer’s lawyer. She determines on her own what the best course of events are. She will not be dictated to and is self-reliant in her understanding of the law. She is not afraid to take creative steps to achieve her or her client’s goals. She is a trail-blazer.
However, as a leader the autonomous lawyer does not foster teamwork. While she provides an inspiring example as a capable lawyer, she is loathe to give up control. She will keep information to herself and only disclose on a need-to-know basis. She is distrustful of others to do work she’d rather do herself. In partner and law firm meetings she is more concerned with individual performance than team-building.
If the goal of a law firm is to have the “best” lawyers it is easy to see that it may well end up accumulating a slew of autonomous lawyers. Each lawyer will want to do his own thing. For this reason Dr. Richard calls the attempt to get them on the same page “herding cats”. The problem is that where leadership is filled with autonomous lawyers, the ability of the firm to weather storms is undermined. Without a strong bond – a culture of team-building and working together, autonomous lawyers are destined to fail as a group.
The benefit of a diverse firm culture – primarily in diverse personalities but perhaps also in diverse backgrounds – is that the firm stands a better chance as a cohesive unit in rougher seas. Should dysfunction set in in a firm filled with autonomous lawyers, there is little hope of rescue. But a diverse set of personalities can form a bond between colleagues such that the sum of the parts is greater than the whole.
On the day that the new E-Laws site went live, I sent them an email to ask where I could find the Detailed Legislative History Tables.
Here is their reply:
Dear Ms. Demers:
Thank you for your e-mail concerning the new e-Laws web site (www.ontario.ca/laws).
Detailed legislative history (DLH) tables are no longer being maintained. As of April 10, 2015, there were 3,971 regulation tables and 998 statute tables, which were regularly being updated manually in Word format. In their current format, the DLH tables could not meet the web accessibility requirements set out under the Accessibility for Ontarians with Disabilities Act, 2005.
An alternative approach to providing provision-level and other more detailed legislative history information in an accessible format, using a more streamlined and automated process, is being developed. In the meantime, some provision-level legislative history may be found in the footnotes following provisions in the consolidated versions of laws on e-Laws. Provision-level history can also be tracked by comparing historical (period in time) versions of laws, where available on e-Laws. Information on when bills were enacted or regulations filed may be found on the source law versions of the applicable laws. Higher-level legislative history continues to be shown in the Table of Public statutes and ministers responsible, the Table of Regulations, and the Table of Private statutes.
Although the DLH tables will no longer be updated on e-Laws, archived versions of the tables (as they appeared on April 10, 2015) have been made available for download on the Legislative Tables page on e-Laws, for those wishing to continue to track legislative history in that format themselves. Here is a link to the Legislative Tables page: http://www.ontario.ca/laws/legislative-tables The download links are found under the heading “Detailed Legislative History Tables”.
I’d encourage everyone to send feedback to https://www.ontario.ca/contact-us
I had the opportunity to gather with fellow “repositorians” in Williamsburg, Virginia, last month. It was the first meeting held to discuss the development and maintenance of institutional repositories for law and legal resources. The event was called, “Law Repositories: Shaping the Future,” and was made possible through a grant from the AALL/Bloomberg Continuing Education Grants Program and the sponsorship of both bepress and the Legal Information Preservation Alliance (LIPA).
Jona Whipple, Digital Resources Librarian, Chicago-Kent College of Law, Illinois Institute of Technology, has provided a nice report on the event and I refer you there for some of the additional details.
I thought I’d focus on the opening keynote address. However, before I do that, I would like to draw your attention to one of Whipple‘s observations, something that was evident throughout the meeting. That is a perceived shift in perspective; a change in the nature of what’s usually been collected in an institutional repository.
“While repositorians are not necessarily shifting the focus from collections of scholarly work, they are definitely expanding the scope of what would traditionally be included in a law repository. This expansion not only energizes and excites those of us who work to make this content available, it also brings more focus to our repositories and our missions as champions of open access and protectors of information.”
To some extent this shift is evident in the work we’ve been doing at the Osgoode Digital Commons. For example, in addition to collecting the scholarly output of the Osgoode Law School faculty we have also included video recordings of guest seminars, provincial statures, a digitized copy of a rare handwritten manuscript and a selection of image galleries.
This term “repositorian” was introduced by Paul Royster, Coordinator of Scholarly Communications at the University of Nebraska–Lincoln Libraries, and became very popular at the meeting. It’s a pretty good term but it makes me think I should slap my right fist against my chest when I say it.
In the opening keynote address Royster described the role of a repositorian as:
He sees two main roles of the repository itself: collection and dissemination. And, he concludes that a repository should not be considered a “technology program or a collection development program.” Instead we should view this work as both a services program and a potential publishing operation.
These are the set of services that the University of Nebraska-Lincoln Libraries provides:
In addition to these services they aim to: make it easy for content owners to add content to the repository; provide content owners with feedback through regular usage reports; maximize the uploading process to provide as much scholarship freely accessible online as possible.
One of the key points that Royster made, and something that we should keep in the foreground of our activities as repositorians, is that the institutional repository belongs to the depositors. The repository does not belong to the library, the university or the public. “We are not gatekeepers, arbiters, enforcers, approvers, censors, regulators, or judges.” Instead we are partners or “co-conspirators” who are there to manage and facilitate access to the content so that it can be discovered and disseminated as widely as possible.
There has been a notable decline in library usage, in funding and acquisitions, in circulation and visits to the reference desk. An institutional repository becomes an important collection of services that can reconnect the library to faculty and the overall activity of the school.
As Royster also stressed, the repository is critical because it supports our goals as librarians: “we want to share ideas and experience, especially our educational, legal, and political experience.” And it is our responsibility to “regain, liberate, occupy scholarly publishing” and “bring scholarship out of the commercial market.”
It was an inspiring event framed nicely by this opening keynote speech. The video recording is now available so you can hear Royster talk about their many successes including their “digital publishing operation” Zea E-Books.
By using a self-editing checklist to edit your writing, you will quickly improve the quality of your finished work. You will also become a stronger writer who produces better first drafts and finishes writing assignments quickly.The Benefits of Self-Editing Your Writing
Lawyers are often advised to allow others to comment on drafts of his or her written work. Sometimes, though, it’s hard to find someone who has the time to read a legal brief or other lengthy documents. And even when you can find willing readers, their editing advice might be incomplete.
This is why you should learn to be your own self-editor. It isn’t as difficult as it sounds. Simply develop a checklist like the one suggested here, then apply it step-by-step to each piece of work you want to polish.
The checklist approach ensures you will look at your writing objectively. Even if you think your draft is perfect, the checklist requires you to ask yourself hard questions that will make your document better.
Over time, you will become so familiar with your checklist that you’ll think about it as you are writing your initial drafts. This will make your writing stronger and speed up the process of revision and editing.Complete Your Revisions First
Even though editing shares much in common with revising, think of editing as a second, separate step that you can’t start until after you have finished your revisions.
After you think your work is close to being completed, let it sit for awhile. When you pick it up again, you want to be able to see it objectively as if someone else had written it.Edit Your Draft by Working Through Your Checklist Step-by-Step
The checklist that follows summarizes the steps I take in self-editing my legal writing. Although I have tried to be comprehensive, it probably doesn’t capture every thought I have when I’m editing my work. Expand or modify the checklist to suit your needs.1. Edit for Organization
Proofreading is the last step you take before your document is finished. It’s not editing, exactly, but can be viewed as part of the editing process.
The primary goal in proofreading is to look for typographical and spelling errors. If you want perfection, proofread not once but twice, the second time reading backwards from beginning to end. This will help you isolate each word in your mind apart from its use in a sentence, forcing you to actually see the word.
After going through the checklist, you will have a document that you can be confident to hand to any judge, client, or opposing counsel.
Featured image: “Vintage typewriter and a blank sheet of paper, retouching retro” from Shutterstock.
Write Better Legal Documents with an Editing Checklist was originally published on Lawyerist.
Have you noticed the growing reports about drought? Cities like Sao Paolo, Atlanta and Austin are nearly out of water. Utah may be entering a 1000 year drought. Australia is struggling. California has only one year of water left in its reservoirs. And so on around the world.
An Op Ed by NASA Jet Propulsion Laboratory senior water cycle scientist Jay Famiglietti calls for immediate water rationing, groundwater management legislation, long-term water management strategies, and public ownership of the issue. He emphasizes the need for an honest, transparent and forward-looking process, concluding: “Most important, we must make sure that there is in fact a plan.”
Which raises the question: “What is Canada’s drought response plan?”
It’s not just an issue for hot places. Global climate change scenarios predict that Canada will experience deeper and longer droughts in the future, interspersed with floods. Historically, prolonged, widespread droughts have been among Canada’s costliest natural disasters, impacting the economy, the environment, and human health. According to Agriculture and Agri-food Canada, during the 2001-2002 drought, the GDP fell by $5.8 billion, agricultural production dropped an estimated $3.6 billion, and employment losses exceeded 41,000 jobs. “Water supplies that were previously reliable were negatively affected, and several failed to meet the requirements… Numerous adaptation measures were severely challenged.”
Despite these potentially devastating impacts, drought preparedness across Canada is uneven. At the high water mark (no pun intended) are detailed plans for low water monitoring and management, such as Ontario’s Low Water Response Strategy and British Columbia’s Drought Response Plan (2010). In both, responses to increasingly severe levels of low water range from voluntary consumption reductions to regulations, to be invoked where supply no longer meets demand and communities experience social and economic impacts. In the event of a complete loss or near loss of supply, emergency responses may be required, but this is outside the scope of these plans.
Will provincial governments actually invoke these plans on time when we need them? And will they work? Ontario’s Environmental Commissioner has expressed concerns that decision-makers rely too heavily on voluntary measures and do not use the mandatory regulatory tools available to them. He also recommended a full policy review of the Ontario Low Water Response Plan, citing significant concerns with its effectiveness. He also suggests that the legislative hurdles to trigger a declaration that regulatory restrictions are necessary may be prohibitively difficult to satisfy. No policy review has yet taken place, as far as we know.
In the Prairie Provinces and the Maritimes, planning is even less well developed. In Manitoba, the provincial government committed to putting in place a Drought Management Strategy in its Green Plan (2014), but the Strategy is still under development. Similarly, the provincial drought response plan described in the 25 Year Saskatchewan Water Security Plan (2012) will not be finalized until 2016 according to the Saskatchewan Water Security Agency’s 2013-2014 Annual Report.
Alberta’s Water for Life Action Plan (2009) contemplates “strategies to deal with the management of changing future water supplies through the provincial Climate Change Adaptation strategy and through implementation of the Land-use Framework and watershed planning.” However, this work remains at a very general level. For example, the South Saskatchewan Regional Plan, states: “The provincial water management system will continue to be assessed for optimization and efficiencies to address periods of low flows and drought conditions and high flows and flood conditions.” Alberta’s focus appears to be on increasing water storage and using the water allocation management system, which is currently under review, to manage risk in times of water scarcity.
So, does Canada have a drought plan? We have parts of a plan, but they need work. In this, as in so many other areas of preparing for the impacts of climate change, we’re not yet doing enough both to mitigate, and to adapt. We still destroy wetlands and waste stunning amounts of water, like so many other things. So far, we’ve been pretty lucky, but it’s not much of a plan to count on always being lucky. Bad news doesn’t always happen to other people.
— Dianne Saxe and Meredith James
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.
La passation de titre est l’ultime expression de la volonté du législateur de donner effet au consentement libre et éclairé donné par des parties à une offre d’achat/vente. En effet, nous avons déjà discuté à plusieurs reprises de la flexibilité dont feront preuve les tribunaux pour donner effet à ces offres. Reste qu’il faut que l’offre sur laquelle se base la partie qui demande passation soit valide comme le souligne l’Honorable juge André Prévost dans Jet Version inc. c. Jardins Normand Lalande inc. (2015 QCCS 1415). …
We’ve made minor revisions to this short, easy-to-understand pamphlet and reprinted it. It outlines: what happens when someone is charged with a criminal offence, the first steps in the court process and the different options that might be available, the accused person’s legal rights, and how to get legal aid or other legal help. Previous editions of this pamphlet are no longer current; please recycle. …
Global Workplace Insider
Case Note: New seriously ill family member leave in Alberta
Amendments to the Alberta Employment Standards Code came into effect, extending job protection to employees who require leaves of absence to care for seriously ill family members. Employees who meet the eligibility criteria will be entitled to up to eight weeks total unpaid leave within a 26-week period. The new provisions define the familial relationships in respect of which the provisions will apply and set out the conditions under and extent to which the protected leave may be accessed. …
On April 2nd, the Court of Appeal of Alberta held that the Alberta Freedom of Information and protection of Privacy Act does not give the Alberta OIPC the power to compel the production of records over which a public body has asserted solicitor-client privilege. The Court considered the power granted by the following provision: Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection … (2). …
Taking your legal temperature on Law Day
Today is Law Day in Canada, a date chosen to commemorate the signing of the Charter of Rights and Freedoms in 1982. CBA branches across the country take part in Law Day by planning a host of activities to raise awareness about lawyers and the law, many of which take place in schools or involve students. This is fitting because as the CBA’s report Reaching Equal Justice underlines, it’s important to empower people to participate in the justice system – and a big part of that ability to participate comes through education. …
*Randomness here is created by Random.org and its list randomizing function.
Perhaps the best way to raise awareness of the 2015 Bencher Elections is to highlight what the function of the law society is. The LSUC website states,
The main function of the Law Society of Upper Canada is to ensure that all persons who practise law or provide legal services in Ontario are competent, follow proper procedures and behave ethically.
Ethical behaviour is generally interpreted through the lens of the Rules of Professional Conduct, and is one of the main disciplinary functions of the law society. Discipline, though rarely pleasant, is one of the necessary components of self-regulation. Understandably though, discipline is a highly controversial topic.
The most controversial discipline case in Ontario recently has been Groia v. The Law Society of Upper Canada, where Justice Nordheimer rejected the appeal of a law society discipline hearing on incivility. The reason the Groia case is so central to the Bencher Elections is that Joseph Groia is himself running this year for Bencher. It doesn’t get better than that.
There’s one other case that is far more significant in terms of combating incivility in the profession, and although it involves Ontario lawyers, they are the complainants against another non-practicing lawyer and media personality from Alberta. Justice Pentelechuk recently dismissed a summary judgment motion by Levant to have the judicial review of the Alberta Law Society inWarman v Law Society of Alberta.
What’s strange in this case is that the complaint was initially dismissed on the basis that Levant’s conduct was as a journalist, not in his capacity as a lawyer, despite several provisions in the Law Society of Alberta Code of Conduct indicating that it does apply in a lawyer’s private life and professional endeavours outside of the law. The complainants appealed, and the Appeal Committee stated,
Part of the mandate of the Law Society in protecting the public interest is the regulation of its members. In this case the Member’s failure to moderate his conduct and abide by the Code with respect to his journalistic endeavors and political activism is particularly troubling. The Law Society should not decline its jurisdiction to regulate the Member in this instance. It serves the public interest to ensure that members of the Law Society abide by its directions and regulations. To permit a member to operate outside the provisions of the Code, even when the member does not engage in the practice of law, is to allow members to circumvent the authority of the Law Society.
The convening of a Hearing Committee then failed to occur for 16 weeks, which was followed by a successful Discontinuance Application by Levant. The problem is that the law society failed to inform the complainants of the Discontinuance Application, leading to the judicial review on the basis of abuse of process.
The summary judgement motion sought to dismiss the judicial review on the basis that the complainants have no standing. Justice Pentelechuk found that standing was not necessary for the complainants to have some rights to procedural fairness. She concluded,
 It should be no surprise to the Law Society that the optics are problematic in the general context of administration of justice. While the test for abuse of process is high, I am of the view that the determination of the issue of the Conduct Committee’s exercise of its prosecutorial discretion should also be resolved through a full hearing, particularly because the analysis of whether an abuse of process occurred in this instance demands a clear understanding of the factual foundation for the decision of the second Conduct Committee which is intertwined with the issues of standing and the scope of procedural fairness owed to the Respondents. In the result, based on my examination of the Record in this application, I am not satisfied that a disposition that is fair and just to both parties on this issue can be made on the existing
The Supreme Court of Canada stated in Doré v. Barreau du Québec,
 We are… balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer’s right to expression and the public’s interest in open discussion. As with all disciplinary decisions, this balancing is a fact-dependent and discretionary exercise.
The facts in the Levant case are far more compelling than that in Groia, and he has certainly received far more criticism by several ethic boards and tribunals. The greater challenge is what appears to be an inconsistent application of the rules of conduct despite a shared Model Code. Amir Attaran, one of the complainants against Levant, stated in The Globe,
You can’t have a lawyer on national television hiding in a jurisdiction that refuses to discipline him and attacking lawyers elsewhere and undermining the dignity of this profession.
Although Levant won’t be running for Bencher any time soon in Ontario, his discipline case is really the one to watch to determine whether we have the ability to self-regulate effectively.