“The first rule of any technology used in a business is that automation applied to an efficient operation will magnify the efficiency. The second is that automation applied to an inefficient operation will magnify the inefficiency.” – Bill Gates
I predict that the first components of a litigation file to be completely automated are the drafting of:
These documents are rule based, and computer programs love rules. I envision a computer program asking questions at the beginning of the file based on the type of action, e.g. when did the accident happen? What were the injuries? Based on a formula, the program would then produce a checklist/timeline for the action, notice letters, and pleading. As the file progressed, the program would then organize all client documents according to materiality, relevancy, and privilege into an Affidavit of Documents. Following examination for discovery, the program would create an undertakings list and assist in answering undertakings, and so on, leaving the role of the lawyer forever changed.
As automation in litigation becomes common, disputes between lawyers will change. Lawyers will argue about the legitimacy of the formula used in drafting legal documents. In response, there will be a whole new body of law on what makes a formula credible and ethical.
Should lawyers be afraid of automation?
No. “To survive every industry must plot its obsolescence of what now produces their livelihood.” – The Formula By Luke Dormehl
The Canadian Charter of Rights and Freedoms (the Charter) guarantees that everyone has the “freedom of association” (section 2(d)). The Charter’s guarantee of freedom of association has often been leveraged to protect employees’ rights in the labour relations context. According to recent media reports, the union that represents the Toronto Transit Commission (TTC) employees is looking to rely on section 2(d) to combat provincial legislation that declares the TTC an essential service and prohibits its employees from striking.
In January 2015, section 2(d) was successfully used to persuade a majority of the Supreme Court of Canada to declare Saskatchewan’s Public Service Essential Services Act (“PSESA”) as invalid. The PSESA included similar prohibitions against striking for those employees working for “essential services,” as defined in the legislation. At paragraph 51 of its decision, the Supreme Court of Canada held that the ability of employees to strike is essential to meaningful collective bargaining and that, in the circumstances of that case, the right to strike was constitutionally protected under section 2(d) of the Charter.
While the Saskatchewan decision certain gives some support TTC employees’ argument, the outcome of any legal challenge will ultimately depend on a court’s analysis of the specific legislation at issue. Freedom of association is not absolute; if the Ontario legislature can demonstrate that its essential services legislation is reasonable and justified in the circumstances, then a court may uphold the law and the TTC employees’ will remain unable to strike.
Bob Ambrogi blogged this morning that two more U.S. states have adopted amendments to their legal profession rules of conduct that include technological competence as part of a lawyer’s overall duty of competence, bringing the total number of states having adopted this duty to 17. The duty first appeared in the ABA Model Rules in 2012, as Comment 8 to Rule 1.1, as follows:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
States that have moved in this direction have taken a variety of approaches, mostly variations on the Model Rule Comment, as Ambrogi explains here.
In Canada, we’ve not yet moved in that direction. Indeed, a search of the Federation of Law Societies Model Code of Professional Conduct reveals that the word “technology” appears only one time, and that’s in the Preface to the Code:
The practice of law continues to evolve. Advances in technology, changes in the culture of those accessing legal services and the economics associated with practising law will continue to present challenges to lawyers. The ethical guidance provided to lawyers by their regulators should be responsive to this evolution. Rules of conduct should assist, not hinder, lawyers in providing legal services to the public in a way that ensures the public interest is protected.
The evolution of how lawyers practice law is indeed ongoing and advances in the arena of technology do continue to present challenges to lawyers. Some choose to face those challenges head on and become familiar with the tools that technology offers, but others respond to the challenge of technology by attempting to ignore it, pleading ignorance or running from it.
There is no question but that lawyers find themselves in a world in which technology increasingly impacts how they go about doing their business. It reaches well beyond office tools and practices into firm and client communications, information and document management, evidence gathering and document discovery, marketing and client development.
One could argue that a failure to understand current technologies to the extent required to assess risks and benefits, as required by the ABA Model Rules demonstrates a lack of competence. The Commentary to the Federation Model Rule on Competence (Rule 3.1-2) sets out that:
 A lawyer must recognize a task for which the lawyer lacks competence and the disservice that would be done to the client by undertaking that task. If consulted about such a task, the lawyer should: (a) decline to act; (b) obtain the client’s instructions to retain, consult or collaborate with a lawyer who is competent for that task; or (c) obtain the client’s consent for the lawyer to become competent without undue delay, risk or expense to the client.
 A lawyer should also recognize that competence for a particular task may require seeking advice from or collaborating with experts in scientific, accounting or other nonlegal fields, and, when it is appropriate, the lawyer should not hesitate to seek the client’s instructions to consult experts.
I wonder if most lawyers recognize that a lack competence for a technological task required in the representation of a client places them in a position where the retainer should be refused or a competent lawyer retained or such technological competence should be gained without undue delay, risk or expense to the client. And in some cases, this means that experts will need to be brought in to consult.
Generally I’m not inclined to address emerging issues through the creation of more detailed ethical and regulatory requirements. In most cases, a principled approach that provides appropriate guidance will suffice; however I find it troubling that the ethical guidelines for lawyers in Canada don’t even address in the most general way, the need to lawyers to keep abreast of the technology tools commonly used in legal practice and business environments.
Whether we go the route of the ABA and a growing number of states or craft our own Canadian response, it’s time we acknowledge the increasing ubiquity of technology in all aspects of legal practice and determine how best to ensure that lawyers are competent in its use. It may require an amendment to the definition of competence or maybe we need to dedicate some mandatory CPD hours to these issues. Ambrogi concludes with a challenge to lawyers:
You cannot assess the benefits and risks associated with various kinds of technology if you know nothing about the technology. Even if your state has yet to adopt this change, it is only a matter of time before it does. Don’t be a Luddite who fears or resists technology. Neither do you have to become a geek. Make an effort to understand the basics of the technology you use. Get on social media, if you’re not already. Ask questions. Learn. When it comes to technology, there is no more burying your head in the sand.
I have to agree. This is an area in which career-long learning is required. Change is ongoing and complacency won’t win the day. To remain relevant, efficient, effective and competent, lawyers must keep abreast of changes in technology, whether law societies require it or not.
I don’t normally do movie reviews, but Spectre, the latest James Bond movie, has a cautionary tale about the surveillance society that is worth commenting on. It deals with the undemocratic / totalitarian / dystopian aspects of ubiquitous surveillance.
Some reviewers have been critical about the movie, but my view of Bond movies is that they are more about entertainment than plot and character development.
Some elements of the movie are uncomfortably real – like its spin on the five eyes network . After I saw it I wondered what Ed Snowden would think. This is what Wikipedia has to say about Snowden’s thoughts about five eyes.
The former NSA contractor Edward Snowden described the Five Eyes as a “supra-national intelligence organisation that doesn’t answer to the known laws of its own countries”] Documents leaked by Snowden in 2013 revealed that the FVEY have been spying on one another’s citizens and sharing the collected information with each other in order to circumvent restrictive domestic regulations on surveillance of citizens.
The Intercept has a good article about the movie entitled Only Edward Snowden Can Save James Bond
From The Intercept article:
Knowing everything about everyone is actually of limited use to the good guys. But it’s hugely useful to the bad guys — be they extortionists, terrorists, or power-mad bureaucrats. And if it’s collected, somewhere, be assured the bad guys can get their hands on it.
While Bond is pursuing his super-villain, his boss M wages a losing bureaucratic war with C, who’s more of an NSA/GCHQ type. M inevitably describes the massive surveillance network that C is building as “George Orwell’s worst nightmare.” In response, C literally laughs at M’s devotion to the quaint notion of “democracy.” Subtle it ain’t, but the central point — that ubiquitous surveillance is an inevitably totalitarian tool, not just inappropriate for democratic society, but actively inimical to it — is often underappreciated in the current debate.
The movie also shows us what kind of hero we need to prevent such a dystopian future — and it isn’t Bond. It’s Q, who bears a striking resemblance to Edward Snowden.
When it comes to surveillance data, it’s hard to know who the bad guys really are. Depending on what it is used for, it can be those who should be protecting us. And if you think this information can’t get into the wrong hands, take a look at this article about the lack of security in an FBI database.
Many state bar associations are wrangling with how to close the access-to-justice gap. In 2001, Washington’s state supreme court set up a Practice of Law Board to study the issue, as well as deal with the unlicensed practice of law. The Board proposed allowing Limited License Legal Technicians to perform limited legal services, which became law back in 2012. But due to a long-running feud between it and the Washington State Bar Association, which included controversy over LLLT’s, four of the Board members resigned yesterday.
The resigning members of the Board laid out their concerns in a letter to the Washington Supreme Court (pdf), which accuses the Washington State Bar Association of systematically undermining their mission to help provide legal access:
The Board’s mission is laudable and we could have accomplished much to help increase the availability of legal services to the public if we had been allowed to do our job. Instead of advancing our mission during the past two years, we have spent more time and energy responding to and fending off the Washington State Bar Association’s efforts to undermine and eliminate our Board.
The letter details the twists and turns in its ongoing fight with the state bar over eleven pages, and ends with this:
The treatment of the Practice of Law Board over the last three years is a textbook study on how to discourage and disempower a board comprised of volunteers: oppose their mission; cut their budget; withhold meaningful staff support; personally attack and seek to oust the volunteers who disagree with you; conduct secret meetings to discuss the future of the group without informing its volunteer members or inviting them to participate; dismiss or reject out of hand the volunteers’ concerns; and replace the group’s members and leadership team. There is no surer way to demoralize a group of volunteers and undermine their good intentions.
In a statement to the ABA, the Washington State Bar Association said the letter was full of “significant misinterpretations and misunderstandings.” It seems that everyone agrees that we need to fill the access-to-justice gap, but no one can agree on how.
Featured image: “Stock image of person wearing business suit and boxing gloves isolated on white” from Shutterstock.
Fight Over Access to Justice in Washington Turns Ugly 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. Morris, 2011 ONSC 5142
12. The defence argued that, because the police did not believe Mr. Morris had committed an HTA infraction, they did not have an HTA-related purpose for stopping Mr. Morris’ vehicle. In so arguing, the defence pointed to Officer Ciric’s candid statement that, but for the “Caution”, he would not have pulled over the car. Because the stop was neither “random” as was the case in Hufsky, Ladouceur, Brown v. Durham and Nolet, nor based on an alleged HTA infraction, the defence argues that the cases that support a police right to pull over a car where the existence of both HTA purposes and criminal investigatory purposes is shown (e.g.: Brown v. Durham, Nolet) have no application. Put simply, on this argument, there could not have been a dual HTA/criminal investigatory purpose because there was no legitimate HTA basis for the stop. Mr. Rippell argued that the stop was a “ruse” and was thus based on an improper purpose. Consequently, the defence submitted that the stop violated Mr. Morris’ right to be free from arbitrary detention, and that the subsequent search must be considered unreasonable.
2. Carter v. Canada (Attorney General), 2015 SCC 5
 It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.
 The question on this appeal is whether the criminal prohibition that puts a person to this choice violates her Charter rights to life, liberty and security of the person (s. 7) and to equal treatment by and under the law (s. 15). This is a question that asks us to balance competing values of great importance. On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable.
3. R v Wagar, 2015 ABCA 327
 Having read the Crown’s factum, portions of the trial transcript and having heard Crown counsel’s arguments, we are satisfied that the trial judge’s comments throughout the proceedings and in his reasons gave rise to doubts about the trial judge’s understanding of the law governing sexual assaults and in particular, the meaning of consent and restrictions on evidence of the complainant’s sexual activity imposed by section 276 of the Criminal Code. We are also persuaded that sexual stereotypes and stereotypical myths, which have long since been discredited, may have found their way into the trial judge’s judgment. There were also instances where the trial judge misapprehended the evidence.
The most-consulted French-language decision was R. c. Rondeau, 1996 CanLII 6516
Dans ce contexte, la mise en liberté provisoire ne doit pas être refusée à toute personne qui risque de commettre une infraction ou de nuire à l’administration de la justice, si remise en liberté, mais uniquement, comme l’expose le par. 515(10) C.cr., s’il y a une «probabilité marquée» qu’elle commette une infraction criminelle ou nuise à l’administration de la justice et, enfin, seulement «si cette ‘probabilité marquée’ compromet ‘la protection ou la sécurité du public» (R. c. Morales, p. 737). Comme le législateur exige que la détention soit nécessaire pour la sécurité du public, «elle n’est (donc) pas justifiée si la détention est seulement commode ou avantageuse» (R. c. Morales, p. 737). Répondant à l’objection que ce critère repose sur l’hypothèse que l’on puisse prédire la récidive, alors que la chose est impossible, le juge en chef Lamer, au nom de la cour, dans l’arrêt Morales, souligne que la prévisibilité exacte ne constitue pas une exigence constitutionnelle et qu’il suffit d’établir la probabilité de dangerosité, qu’expriment les mots «probabilité marquée» au par. 515(10) C.cr.. Le risque sérieux de récidive visé par le législateur au par. 515(10) C.cr. n’est que l’un des éléments pertinents à la solution du litige, soit de décider si la détention est nécessaire pour la protection ou la sécurité du public.
* 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
Of most use to CALI is likely to be Rogo, written in PHP backed with MySQL and LDAP for user management.
Harvard is renowned for an almost pathological level of copyright maximalism over the precious precious Bluebook. Rightly so, because forcing law students everywhere to buy that monstrosity nets them seven figures per year. However, it looks like they’ve decided to be a little less tight-fisted about their collection of case law, which is apparently enormous.
Home to the country’s most comprehensive collection of U.S. case law, second only to the Library of Congress, Harvard is partnering with technology startup Ravel Law to digitize its legal library — more than 200 years’ worth of cases — making it fully and freely searchable.
The digitization effort involves slicing up books and feeding them into a 12-foot-high scanner, which is a thing I didn’t know existed but now I really want. After everything is digitized, Ravel will get to work and make it all searchable and do all their cool data-mapping tricks with it, although only the searchability part of that will be free.
Ravel aims to offer up the massive store of legal information to the public but also to provide greater value to small firms with limited resources and large firms looking for a competitive edge. While Ravel’s search function will be free to use, it charges for subscriptions to its suite of analytical tools, which will soon be augmented by data from Harvard’s library.
Better still: Ravel will fling open the archives, cool tools intact, for scholars and researchers right away and make the database free for commercial entities after eight years.
Featured image: “Free comic book inscription pop art retro style” from Shutterstock.
Soon You Can Access Harvard’s Case Law Collection For Free was originally published on Lawyerist.
Trying to get websites to take down pages that make you look bad is inherently problematic, but it’s even harder when your approach is to go around threatening lawyers who are well-known for not backing down in the face of threats. Florida lawyer Gary Ostrow apparently wanted to put some unfortunate things behind him, like this comical-if-it-weren’t-probably-unethical press release and some mentions of his brushes with the law.
In order to try to clean up his Internet reputation, Ostrow hired an Internet tough guy named Patrick Zarrelli, who spent yesterday threatening Mark Bennett, Scott Greenfield, Brian Tannebaum, and probably others. He’s spectacularly bad at it, and he’s just making things worse for Ostrow. For example, here is the voicemail he left with Tannebaum:
Of course, Bennett, Greenfield, and Tannebaum just posted Zarrelli’s emails and voicemails — as they should — along with a healthy dose of their own posturing and now the blawgosphere smells like a high-school locker room and I can’t breathe.
Update. It turns out Ostrow is an Internet tough guy, too:
"You have no fucking idea what's coming your way, my friend. Have a nice fucking life." —Ostrow, when asked to confirm that Zarrelli was his
— Mark W. Bennett (@MarkWBennett) October 30, 2015
I have a feeling we’ll be hearing about this for a while.
2015-11-10. Apparently, according to TechDirt, Zarrelli has filed a criminal and/or a bar complaint against me:
Featured image: “Portrait of two smiling muscular men flexing biceps” from Shutterstock.
Lawyer Hires Internet Tough Guy to Silence Internet-Tough-Guy Lawyers was originally published on Lawyerist.
As you know, the Canadian Senate Committee on Banking, Trade and Commerce published earlier this year a report on Bitcoin and other digital currencies. Bradley Crawford, author of the leading banking law treatise in Canada, has recently written a commentary on that report and on digital currencies generally. That comment – quite critical of the Senate’s report – will be added to his treatise later this month.
He raises one issue that seems to me particularly important to those who promote the use of digital currencies in commercial exchanges: the transfer of control of units of Bitcoin (or equivalent) does not at law discharge the legal obligation for which it is transferred. The transferee is not in the position of a holder in due course of a negotiable instrument. Thus the transferor might still be held liable on the obligation for which the transfer was made – not, probably, by the transferee directly, but by an interested third party like another creditor or a trustee in bankruptcy. (This is my formulation, not his – see below for his words.)
This may be inevitable unless (or until) bitcoin and its equivalents are recognizes as money or currency – something that Mr Crawford thinks is inappropriate for a number of reasons set out in his treatise.
Do you have clients that do transactions using Bitcoin? Does this strike you as a problem? If not, why not?
P.S. here’s an extract from Bradley Crawford’s text (with his permission) ( §4:50.30(2)(d)(iii) of the treatise, forthcoming)
The most significant [difficulty) is the fact that transfers of control over units may not be effective to transfer title to the value represented by the unit. This appears not to have occurred to the [Senate] Committee. At any event, it is not mentioned at any point in the Report. For example, in the definition of “cryptocurrency”, it is asserted that:
Transactions are recorded on a public ledger, which is shared across a peer-to-peer network, and the validity of transactions is verified through cryptographic techniques.
It is important to note that the only information recorded about a transaction transferring a bitcoin is related to the history of that particular unit. It carries, or accesses the public record of, information identifying the transactions in which it has been transferred. It neither carries nor accesses any information whatsoever about any other element of those transactions. Accordingly, the verification of their “validity” to which the definition refers is similarly limited to the pedigree of the unit(s) transferred.
More significantly, the Report fails to note an important adverse consequence of its acceptance of digital currencies as a new currency. As no decentralized, convertible digital currency now in use is legally qualified to be recognized as money, transfers do not expunge the rights of prior claimants to ownership. The transferee, even though receiving the unit in a transaction at arm’s length, in good faith and for value, has only a claim to ownership, not legal title. And that claim might not be prior in right to the claim of some prior owner wrongfully deprived of it.
If the information about the history of the unit that is contained in the public record is adequate to enable a prior claimant to trace it, and to establish their prior right, a court would be obliged to order its return to its prior owner. Now, it is unlikely that any litigation would be initiated with respect to a single unit, but a claim to trace and recover the approximately 900,000 bitcoins stolen from the Mt. Gox exchange in Tokyo is not only plausible, but conceptually feasible under Canadian law, if they can be identified.
Forms of value that trail viable legal claims behind them like comets are unfit for use as currency in any economy.
In this article, explore the many open source options for connecting to IRC and find the one that works best for you.
Of particular interest is Kiwi IRC, web based client that is powered by node.js and provides embeddable widgets so you can add chat to your website.
Law partners Jayne Sykora and Jennifer Santini have great advice on figuring out if you want a partner to start your practice, and how to choose one. Before that, Sam and Aaron discuss the security of If This Then That and Zapier.Task Automation Services and Data Security
If This Then That and Zapier Are incredibly handy services for connecting other services. For example, you can use Zapier to create a new client in Clio when someone completes a contact form on your website. But one of our listeners wonders if that’s raises security concerns:
I am setting up a solo law firm and I’ve been devouring practice management blogs and podcasts. I’ve learned about Zapier and “If This Then That” which both seem like amazing applications. But, they ask their uses to hand over all their account passwords so the app can watch everything that comes in and goes out. These apps read e-mails, watch clio activity, and generally raise some confidentiality red flags. …
Listen for our thoughts.How to Choose a Law Partner, with Jayne Sykora & Jen Santini
Jayne Sykora and Jennifer Santini met during their bar review course. Later, after they both took a free seminar on starting a law practice, they decided to hang a shingle and found Sykora & Santini PLLP together. In this episode of the Lawyerist Podcast, they talk about how they made that decision and offer their advice to others considering taking on a partner to start a law practice.
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Episode #42: How to Choose a Law Partner, with Jayne Sykora & Jen Santini was originally published on Lawyerist.
A residential landlord is $50,000 poorer after unsuccessfully challenging the constitutionality of the City of Waterloo’s Rental Housing Licensing Program.
In 2011 the City of Waterloo implemented By-law047 and a new comprehensive rental housing licensing program. The purpose was, among other things, to improve the health and safety of residential tenants.
The program requires most landlords of low-rise units to submit:
Landlords are also required to submit an annual fee.
Although many landlords may not have been happy with the new requirement to be licensed, one such landlord was especially unhappy. So much so that it went to court to challenge the constitutional validity of the City’s ability to pass the by-law.
The landlord made two arguments in this respect. The first was that the licensing fee was really a form of taxation and that the City did not have the jurisdiction to impose such a tax. The second was that the by-law was discriminatory under the Human Rights Code because it applied to townhouses whilst exempting apartment buildings. Since, according to the landlord, more families live in townhouses than apartment buildings, this was unfair to the occupants of townhouses on the grounds of “family status”.
At the time of the hearing the landlord had accumulated 305 charges under the relevant by-law and was also facing 61 outstanding work orders.
Notwithstanding that the decision is lengthy and comprehensive, the court made short work of these two arguments.
The court held that they by-law was intended by the City to be revenue neutral over the long term and to address effectively numerous health and safety issues directly affecting landlords and tenants throughout the City of Waterloo. The court also accepted that the license and renewal fees were calculated by the City based on estimated costs associated with administering the program. The court ultimately held that the fees were not taxes because “their purpose is to defray expenses, not to raise revenue.”
With respect to the human rights argument, the court held that the landlord was unable to establish that the by-law discriminates based on family status (or on any other protected status). The court noted that the by-law applies to low-rise rental properties regardless of whether the property is being rented to a family or non-family, and that it applies throughout the City and does not target any particular person or group of people or whether or not the housing is affordable.
The court ordered the landlord to pay the City $50,000 in legal costs. The landlord, a numbered company, is identified in the decision as the operator of the property. I wonder whether or not the landlord is also the owner, and whether it has assets to satisfy the cost award. Alternatively, I wonder what municipal remedies the City may wield against the landlord’s rental business if the costs are not paid and the work orders not complied with.
The Law Society of Upper Canada ABS Working Group delivered an interim report to Convocation in September. In reading some of the subsequent comments, I was reminded of Nick Robinson’s thoughtful paper When Lawyers Don’t Get All the Profits. As he said in an interview with Cristin Schmitz:
I’ve been amazed in this debate how much each side kind of talks past each other, dismisses the concerns of the other side, or the point of the other side.
In its interim report, the Working Group reported that it would not further consider non-licensee ownership or control of traditional practices at this time. Rather, four other areas would be examined. It was disappointing to have a leading ABS proponent respond to the interim report saying that the “foul stench of protectionism” explained the report and to have another say, less dramatically, that “the outcome in Ontario points to the triumph of politics over principle”.
While it would be naïve to think that strong views will change as a result, I think it important to say for the record that the ABS Working Group, a diverse group[i], worked hard to genuinely address a complex question. The report was a consensus report supported by all members of the working group. Being thought wrong is fair enough especially on complex issues. But I don’t accept the allegation that our interim report is unprincipled. It is not. On the other hand, it has to be admitted that professional self-interest is not an unreasonable concern. Professional self-regulation on issues where the public interest and professional self-interest can diverge is a challenge to be addressed with care. The public interest must govern.
But to the Interim Report. Why not move forward now to majority or control of traditional practices? My own view is principally premised on observations of the effect of ABS in Australia and in England. The first observation is that minority non-lawyer ownership has been broadly adopted in Australia and is the greatest part of ABS licensing in both Australia and England. There appear to be real advantages seen in minority investment for these practices and little or no expressed concern. The second observation is that the largest effect of majority non-lawyer ownership in both Australia and England has been consolidation in the personal injury sector rather than creation of new enterprises delivering new legal services or delivering legal services differently. Recognizing that personal injury work in Ontario is principally available on the basis of contingent fees, it is unclear to me that injured persons would be better or more economically served by large consolidated firms. And it is difficult to imagine reversing a decision which consolidates an area of practice. Watching and waiting for evidence to develop seems the better course to me. It is also material to me that the current personal injury model in Ontario, based in contingent and referral fees, is raising concerns for many. It seems sensible to work through these concerns before considering significant changes.
In England, there have been more innovative practices using majority ownership than in Australia. This is not surprising given the much larger English market and given the importance of London as a capital centre. But significantly, when thoughtful English analysts were asked for their views of the impact of ABS since 2012 when first permitted, the consistent answer was that it is too early to assess the impact of ABS. Waiting a bit seems sensible to me.
Another perspective comes from innovation research and theory. Ray Worthy Campbell’s work has been important in my thinking. Professor Campbell observes that it is very difficult for existing businesses to do things in a fundamentally different way. Building on the work of Harvard business professor Clayton C. Christensen, this is the idea that sustaining innovation is much more likely than disruptive innovation for most businesses. My belief is that many legal needs are unmet is because the only permitted form of business, professional consultancy in which expensive expert time is applied assessing and solving problems, is inherently too expensive to address many currently unmet legal needs. Putting these thoughts together, it seems very unlikely that traditional professional legal consultancies will evolve into something quite different if majority non-lawyer ownership is permitted. It seems logical to think that permitting majority ownership would lead much more to consolidation of existing practices than to transformation of existing practices into something different. It seems likely to me that new technologies and other genuine innovations are more likely to come from new providers than from existing providers. But encouraging evolution of existing traditional practices to deliver more than they now do seems worth-while.
A third perspective is practical. We do not have the regulatory infrastructure in Ontario to deal appropriately with significant new forms of non-lawyer owned legal service providers. On the other hand, regulating traditional practices with some non-lawyer ownership is more easily accomplished. An incremental regulatory path is attractive from a pragmatic perspective.
These are some of the principal reasons that caused me to conclude that serious examination of majority ownership or control of traditional practices should wait with examination of minority ownership being a better focus for the time being. I should add franchise arrangements to minority ownership as possibly a way of allowing evolution of existing traditional or consultancies “professional consultancies” to achieve advantages of scale such as branding, business and legal expertise and infrastructure.
Another area that appears to merit examination has been labelled ABS+ acknowledging the contribution of Professor David Wiseman to the ABS discussion. The Working Group will examine allowing and encouraging “civil society” organizations to deliver legal services. One version of this is analogous to multidisciplinary practices (MDP) in which non-legal services can be offered by legal practices. The MDP idea is that “one-stop shopping” can be attractive to clients. Flipping this idea recognizes that there are important organizations already serving other needs, whether for particular vulnerable populations, low income people or the middle class, through which legal needs might also be served. People who won’t go to a lawyer or paralegal’s office could access legal services where provided ancillary to other important services. Another version would harness existing organizations who are trusted in their communities permitting them to provide legal services as well as being intermediaries between their communities and legal clinics.
The fourth area for examination is the least well defined. We know that there are substantial areas of unserved legal need. Yet only lawyers and paralegals are permitted to deliver legal services in Ontario. There is no lack of lawyers and paralegals yet legal needs go unserved. Part of the answer may be innovation by traditional practices. Part of the answer may be better access to legal information so that people can better serve themselves. Part of the answer may be civil society organizations delivering legal services differently. Part of the answer may be that it is counterproductive only to permit licensees to deliver legal services – especially where they don’t. But part of the answer may also be that innovative practices, applying significant capital to technological and business innovation, may be needed. The traditional labour-intensive professional consultancy model has its limits and other business models, with different financing, may be of value to meet unmet needs.
As said at the outset, I don’t expect that those with harsh views on either side of the ABS divide will change their thinking because of this column. But I hope some will find elaboration of a less certain perspective to be of value.
[i] Susan McGrath, Malcolm Mercer, Constance Backhouse, Marion Boyd, Ross Earnshaw, Carol Hartman, Jacqueline Horvat, Brian Lawrie, Jeffrey Lem, Jan Richardson, Alan Silverstein and Peter Wardle
Have you ever found yourself spending hours retyping the same sections in text over and over in one or multiple documents? Learning Microsoft Styles can be one of the handiest tools in your formatting toolbox and learning it correctly has the potential to transform completely how you build your documents.
If you think about it, everything you do in Microsoft Word has a specific style to it that helps you build the document. Whether it is the type of font you use, the spacing between sections, bold, underline, paragraph structure, or bullet points – these are all styles you use to create your documents. Styles in Microsoft are nothing more than another way of saying how the text you write should appear in the document.Why use Styles?
So instead of retyping the same paragraphs used, signature lines or address lines over and over again Microsoft styles act as the architecture for your document and allow you to save the formatted text in the styles section so it can be easily used again. The result? Hours saved so you can get back to turning out documents quickly and increase efficiency.
How To Use Styles to Save Time Formatting (Sponsored) was originally published on Lawyerist.
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.
Research & Writing
Deciphering Legal Citations
Legal citations like to pack the largest amount of information in the smallest amount of space. However, if you are not familiar with the abbreviation for a specific law journal or reporter, it can be tricky figuring out what is being referred to from a few scant letters. …
Map Your Future
“Think Different” was the slogan for Apple, Inc at one time. Steve Jobs said in the “One Last Thing” documentary: When you grow up you tend to get told the world is the way it is and your life is just to live your life inside the world. Try not to bash into the walls too much. Try to have a nice family life, have fun, save a little money. …
Google wants the artificial-intelligence software that drives the company’s Internet searches to become the standard platform for computer-science scholars in their own experiments.
On Monday, Google announced it would turn its machine-learning software, called TensorFlow, into open-source code, so anyone can use it.
“We hope this will let the machine-learning community — everyone from academic researchers, to engineers, to hobbyists — exchange ideas much more quickly, through working code rather than just research papers,” Google announced on its website.
Until now, researchers have had access to similar open-source software: Torch, built by researchers at New York University, as well as Caffe and Theano, are also open to everyone. TensorFlow is meant to combine the best of the three, Jeff Dean, a top engineer at Google, told Wired.
“I think it will be extremely widely adopted by researchers and students in universities and in companies,” Christopher Manning, a computer scientist at Stanford University, told The New York Times. After trying TensorFlow, he described the software as better and faster than the alternatives.
But while TensorFlow is now open-source, Google will continue to manage the project, and some researchers question what that level of control might mean.
“This platform will live or die based on how they handle who controls updates to the code,” Gary Bradski, a computer scientist and president of OpenCV, told the Times. “Can the community have a say, or will Google control the official version by fiat?”
The announcement is “part of a platform ploy,” Oren Etzioni, executive director of the Allen Institute for Artificial Intelligence, told the Times. Google, he said, is trying to attract developers and new hires to its technology.
While the primary responsibility for wellness rests with the individual, nothing is more important to a law practice than its lawyers and staff. The “firm” – Big Law or a solo practice – can do nothing without people; the better those people feel, the more productive they will be, and the more profitable the firm will be. It follows that a firm has an interest in helping its people be healthy and well. How can a firm help?
Reduce Stress: Some stress is inherent and necessary in a law practice. Reducing unnecessary stress, however, will have a positive impact on health and wellness. A feeling of “not being in control” is a major source of stress and is frequently both unnecessary and avoidable with proper communication. For example, when giving work assignments, the lawyer should give clear instructions as to what the recipient is to do and by when; don’t make the recipient guess or stressed by mentioning the next day you needed it by 5:00 yesterday. Don’t dump work on someone’s desk if you don’t know what is already there – all it takes to avoid that stress is communication.
Have firm-wide policies on internal response times. People can get more work done in an hour or two of uninterrupted time than in a day full of interruptions. If you give an associate or assistant a plate full of important assignments, then expect them to answer every email – no matter how trivial – from a partner within ten minutes, you are not promoting heath and wellness – just the opposite. Allow lock-down times.
Help your lawyers with a firm-wide policy for managing client expectations. The client only has one lawyer but the lawyer has many clients. If every client expects to manage the lawyer’s time by getting an instant response 24/7, that lawyer will be facing excessive stress and some disappointed clients. The firm should insist on setting the clients’ expectations on communications and response times in an engagement letter so the lawyer can live (a bit more) happily ever after.
At least one Redditor is trying to reverse engineer the Avvo Rating. So far it looks like the biggest boosts come from adding an LLM to your profile or getting endorsements from lawyers who say they worked with you. Maybe the goat lawyer could learn something. [/r/LawFirm]
The legal sector added 700 new jobs in October. Way to go, legal sector! [The American Lawyer]
Kevin O’Keefe once again predicts the end of traditional legal academic publishing and — wishful thinking, probably — the mass adoption of law blogs by law professors. But I did just read that 40% of law review articles are never cited anywhere by anyone, including their authors. What a waste of time and money! [Real Lawyers Have Blogs]
Mailvelope is software that is supposed to make it “easy” to send and receive encrypted email. That’s why researchers chose it to study whether an average email user could send and receive encrypted email. Survey says:
The study gave 10 pairs of people up to 45 minutes to encrypt, send, decrypt, and read a message via Mailvelope. Only one subject pair was able to complete the task, and it took them the full 45 minutes; in addition, this pair had some previous familiarity with PGP encryption, unlike the rest of the subjects. In other words: The software was nearly impossible for a novice to use.
This is one of the most readable contracts I’ve seen, from a design collaborative and its lawyer, Matt Sherlock. [Superfrend.ly]
These are the worst lawyers. [Slate]
Briefs: Crowdsourcing Avvo, Email Encryption, the Worst Lawyers, Etc. was originally published on Lawyerist.