The Las Vegas System

My criminal law professor was the stuff of nightmares. His name was Christo Lassiter and prior to joining the legal acadme, he was a prosecutor for the United States Marine Corps JAGs. Imagine The Paper Chase’s Prof. Kingsfield with the ability to shoot an M-16. That was our Professor Lassiter.

In the spring of my 1L year, a group of female law students decided to join the university intramural softball league. It seemed like a good way to relieve stress, even if most of us were creaking towards 30 (…ha!) and our opponents were going to be 20 year old sorority girls. Someone got the hilarious idea to name our team “Christo’s Angels” after our feared professor.

Although we were just 1Ls, the lawyerly characteristic of being risk adverse had already reared its head. We decided that we should probably let Prof. Lassiter know that we were going to use his name and make sure it was okay.

Now, I was in this meeting. Even so, I cannot tell you how it came to be that our plan to inform him of our “Christo’s Angels” team name got interpreted as a request for him to be our coach.

A request that he happily accepted.

Oh crud.

My thoughts on the situation could have been summarized as: “Great. So now Prof. Kingsfield with an M-16 is going to be LITERALLY hitting line drives at my head instead of just figuratively. Greeeeeeat.”

Oh, and he took coaching seriously. There were Saturday practices and drills and way more organization than the usual intramural softball team. But there was also laughter and beer and a realization that…shock of shocks…Professor Lassiter was a human being after all! Kind of a nice guy, actually. Almost….silly. Still absolutely terrifying in class but thanks to our softball experiences he ended up being a bit of a mentor to me.

So why this trip down memory lane? Well, I figure that by the time you read this it will be early August. Much too late to make any substantial changes to your class plans or curricula but much too early to start thinking about Spring classes. However, it’s never too late to think about how we interact with our students.

When it comes to stress and emotional toll, law school has a reputation second only to military basic training. It seems that somewhere along the way intellectual rigor has been conflated with an idea that we need to “toughen up” our students emotionally. Personally, I am torn on this issue.

On one hand, law is a serious business. Whether or not you choose to believe the generational studies about “helicopter parenting” and other (negative) traits of “millennials”, I think we can all agree that many of our students are coming to law school without much -if any- professional experience. In short, they’ve never had to act like an adult.

Additionally, depending on practice area, our students will be dealing with real people with real life changing problems. A dispassionate, non-emotional approach will be needed in order to best serve one’s clients. If “there’s no crying in baseball”, then there’s definitely no crying in chambers!

Assuming that the above is true, and that as a professional school, law schools should teach and facilitate professional acculturation (not just black letter law), then it follows that law professors should embody a certain gravitas in their classrooms and prepare students mentally and emotionally for the practice of law.

On the other hand, of all the crises facing the legal profession, none is more deadly and yet less talked about than the mental health crisis. Lawyers have an disproportionately high rate of depression, suicide and substance abuse. Maybe, juuuust maaaaaybe, the existing approaches of law student professional emotional training are not working.

How does one balance these two competing needs? I can’t say that I have a full answer to this question. I absolutely believe that we need to keep enforcing strict deadlines and high ethical standards when it comes to course work. That is non-negotiable for me and I believe they provide good practice for the real world.

I am less convinced that a course grade based on one final exam is either emotionally healthy or an accurate assessment of a student’s understanding of the course material. I am also not convinced that the beloved Socratic method and putting students on the spot for oral answers is good training for most types of lawyering or a good method for learning law. However, changing these two would require a significant overhaul to one’s courses which we’ve established that we don’t have time to do before fall.

So, what can we do right now?

How about this: Be a human being.

Back in my teaching days, this is actually something I had to struggle with on a daily basis. As a youngish female professor teaching a “worthless” legal research course, I had to really work to be respected by students and for them to take me (and, by extension, the skills that I was trying to teach them) seriously. However, outside of class I was their librarian. For that part of my job I needed to be the opposite of intimidating. I wanted them to feel comfortable admitting ignorance and asking me for help.

I eventually settled on what could be termed “The Las Vegas” system. Basically it was like this: whatever happened at the reference desk, stayed at the reference desk. You could also substitute my office for this because, also probably due to my age and gender, I had many students who chose this place as one to have a good cry. And I was fine with that – as a matter of fact, I began to start my courses with mentioning that I had a good supply of tissues and candy if they did want to talk to someone about their law school stresses.

And you know what? It went okay. Students were able to separate Prof. Glassmeyer from Sarah the Librarian. Once social media entered the picture, things got a little more difficult, but that’s another blog post for another day.

I encourage you to take a chance. Make yourself available outside of your class and office hours and drop the persona of “law professor.” Have a cup of coffee in the student lounge and sit with some students – and, most importantly – talk about something besides that week’s readings in your class. Pop in on student organization meetings even if you’re not the faculty advisor. Think about calling your students by their first name instead of Mr. or Miss. Encourage them to do the same outside of class. The smallest change may be all that a student needs to become more emotionally healthy.

The Friday Fillip: Paris, the Sights, Sounds . . . and Smells

It’s still August, which means that the locals have left the city and not yet returned — a great time to visit Paris. What’s that you say? It’s just not possible at the moment for you to hop on a plane and plunk yourself down in the city of lights? Tant pis.

But the Friday Fillip to the rescue, if only virtually. Besides, this way you don’t have to exercise your execrable French and get excoriated by the experts. Our trip to la région parisienne is strictly a faute de mieux thing, requiring nothing from you other than a few clicks of the old souris.

Let’s start with the sights, and the way to do that is with a couple of panoramic photos of the city. Panorama 360 by Giles Vidal gives you the long shot, as the city turns slowly beneath your gaze. (Warning: there’s corny concertina cum Chevalier music, but you can squelch it with the available controls.) You can stop the turning whenever you wish and focus on an arrondissement that happens to catch your eye. But for really good, sharp close-up views, I recommend Paris 26 Gigapixels in full screen mode. This site is keyed to the usual monuments and tourist attractions, but you don’t have to take the tour: you can go flying off over the rooftops on your own, if you please. The detail is really quite remarkable.

Having given old Maurice Chevalier the boot, you may want some replacement sound. After all, big cities make noise. It’s all part of the experience. So I direct your attention to Des Coulam’s Soundlandscapes, a website based in Paris that features a number of field recordings of life in that city. Let’s start with the Gare de l’Est, as trips often do. You’ll find a bunch of photographs, some useful history, and just about halfway down the long web page, controls for the sound file. Not into Gare de l’Est? Try the Gare de Lyon, then.

Then you might slip sonically over to the Pont au Double, near Notre-Dame, for a dozen minutes of boats and people recorded under the bridge and another dozen recorded on it. If that pont doesn’t do it for you, try the sounds recorded on and around the Pont de Bercy. There are other soundscapes from Paris on the site, such as noise from the Fête National or the Tour de France. And, shades of Chevalier, a solid fourteen recordings of real Parisian street music, a delightful baker’s dozen plus one.

Speaking of bakers, smell those fresh croissants? You might, in a few months’ time. According to Edible Geography, a Parisian perfumer recently transmitted the scent of champagne and macarons from Paris to New York, using an oPhone, an object not yet generally available. However, if you’re keen you can download an app that will allow you to send smells — even though no one is there to receive them yet. Here’s a video describing the oPhone Duo, made as part of a crowdfunding project for the machine:

Why Checks and Balances Must Come First

In my last post, I posed a question to readers: Do we need a global digital bill of rights? It was also the topic of a fascinating panel discussion I moderated in at the CBA’s CLC in St. John’s last week. Perhaps predictably, there were no definitive conclusions, but there appeared to be agreement that as the World Wide Web celebrates its 25th anniversary, internet users of all stripes are struggling with a dilemma: If private internet companies are watching us, shouldn’t someone be watching them? Presumably the “someone” in question would be the government. But that’s an idea that doesn’t necessarily sit well with those who, with reason, feel they cannot trust the state to look after our best interests online.

What’s interesting about the idea of an online Magna Carta is that it would impose a “constitutional framework” on both public and private actors, unlike our Canadian Charter of Rights and Freedoms. In a recent post over at National, Léonid Sirota reminds us that there are in Canada precedents for a “bill of rights” that imposes constraints on both private actors and public entities. Among them are Québec’s Charter of Human Rights and Freedoms, Ontario’s Human Rights Code and the Canadian Human Rights Act, all of which apply to both public and private institutions (at least in some listed areas).

Even so, Sirota remains skeptical that a global digital bill of rights would be effective. He argues that attempts to codify our digital rights are doomed to fail – at least in the short term. Technology and the laws and regulations that govern our lives online evolve far too quickly, he writes. Imposing a “rigid” constitutional framework to protect our privacy rights would likely produce unintended (and presumably undesirable) consequences:

There is a limit to the ability of any designer to anticipate future needs and to frame a constitution that will suit them.

The applicability of this point to attempts to transplant the idea of constitutionalism generally, or of a bill of rights specifically, into the online world should be obvious. This world― the technology that defines its possibilities and their limits, and the social norms which emerge around these innovations―changes too fast for any designer to come up with a ready-made normative framework for regulating it. An attempt to impose a rigid framework on that world, which is the whole point of a bill of rights, is not likely to succeed. At best, it will be ineffectual. At worst, it will shackle innovation in the service of ideas unknown yesterday, controversial today, and perhaps bound to be obsolete tomorrow.

Fair point. I’m also prepared to recognize that our lawmakers – composed primarily of very middle-aged men with law or economics degrees – are probably not the ones best suited to anticipate the long-term advances of technology. On the other hand, is it really a prerequisite that they be able to peer with certainty into that future?

Sirota reminds us that the Framers of the U.S. Constitution got a few things wrong at first, before incorporating a bill of rights through multiple amendments. Only after a civil war and a century of Jim Crow laws did America manage to “resolve” some of those initial oversights.

But the Framers also got a few things right. It’s hard to argue against the fact that the U.S. Constitution took hold and has survived – albeit not in its original form – for well over 200 years.

Indeed, durable constitutions, imperfect as they may be, are generally built on sound first principles. Chief among them in the U.S. Constitution is the rule of law, but also the dispersion of federal power among the executive, the legislative and judicial branches. Central to the Framers’ belief in this separation of powers was their conviction that the Union needed a system of checks and balances.

I raise this point because among the questions Tim Berners-Lee poses in his call to action to develop a digital bill of rights for internet users worldwide is the following: “How can we build systems of checks and balances to hold the groups that can spy on the Net accountable to the public?”

And that really is the rub in this whole debate. Countries may or may not agree on what should go into a digital bill of rights – net neutrality, the right to be forgotten, the right to online privacy, transparency in data collection… There are several lists of rights out there being contemplated. But many of those rights – or some variation of them – already exist in some form or another under our current laws. Canada already has a Charter of Rights and Freedoms. Our provinces have human rights codes that are binding on private companies. We have privacy laws. Can we notsimply enforce them online? And even if we must add to them, Sirota is probably right to suggest that each jurisdiction experiment first on its own, and borrow whatever has been properly tried and tested from others. Trial and error will win the day.

Brazil and Europe deserve some credit for taking the lead on that front, if only for having fueled discussion about the topic. But it’s also worth noting that to guarantee passage of its bill, Brazil’s government made an important concession by removing a provision requiring global internet companies to locally store data on their Brazilian users. There are many good reasons why Google lobbied hard against the stipulation (not least of which were security concerns), but one wonders how Brazilian authorities are going to effectively enforce the Marco Civil without exercising some level of control over the localization of data? Similarly, critics of the recent ECJ ruling on the right to be forgotten have a point when they say it will be difficult to implement globally.

Ultimately, any discussion surrounding a digital bill of rights always ends up being less about the rights themselves than how to strike the right balance of power among the internet’s various stakeholders – governments, private businesses and the users (who if left to their own devices in their push for an open internet, can also wreak havoc in matters of security and privacy). It all boils down to implementing a governance model in the public interest that ensures that no institution can become too powerful and is kept in check by the others. The rest will follow from there.

Rethinking the Way a Court Formats and Publishes Its Judgments

If you could change the way a court formatted or published its judgments, what changes would you recommend? XML? Typography? Are there any courts whose judgments you think are better (looking) than the rest? Or are there any ongoing initiatives or helpful products/sources in this area you’d like to point out? I would be grateful for your comments, tips, etc. Thanks!

Interesting Take on the Duty to Accommodate

An employer can do nothing and still meet its duty to accommodate, so long as it turns out that the employer could not have accommodated the complainant without undue hardship. This was the decision of the Federal Court of Appeal in the recent case, Canada (Human Rights Commission) v. Canada (Attorney General). Despite finding that an employee made out a prima facie case of discrimination on the ground of disability, the Court found that the employer’s failure to meet its procedural duty to accommodate was not improper since any accommodation would have resulted in undue hardship. The Court reasoned that a standard must be assessed as a matter of substance and not procedure.

Facts of the case and decision

The Canadian International Development Agency (CIDA) employee suffers from type 1 diabetes and is insulin-dependent. She wanted to be a development officer, but she lacked necessary field experience. In order to gain necessary experience, she applied for postings in Afghanistan. In 2007, she completed her first posting in Afghanistan without incident. During her second Afghanistan assignment, in 2008, the employee suffered from a hypoglycemic incident which resulted in the agency curtailing her assignment and, against her wishes, returning her to Canada.

Prior to 2008, agency employees posted temporarily to Afghanistan were not required to have any medical assessment completed prior to being posted. Things changed after the employee’s second field assignment, however: now the agency mandates medical assessments for all workers as a condition of being posted to Afghanistan on temporary assignments. For this purpose, Health Canada also developed the Medical Evaluation Guidelines for Posting, Temporary Duty or Travel to Afghanistan.

The employee applied for other postings in Afghanistan, but she was unable to convince the agency that the new Afghanistan guidelines did not apply to her and she was not offered any other assignments there.

The employee subsequently launched a human rights claim against CIDA and Health Canada alleging discrimination based on the ground of disability contrary to the Canadian Human Rights Act. At the Canadian Human Rights Tribunal, it was found that the employee had established a prima facie case of discrimination against Health Canada because the Afghanistan guidelines provided that no one with a chronic medical condition is allowed to be posted to Afghanistan. Health Canada could not show that the conduct was not discriminatory.

Furthermore, the tribunal found that the employee established a prima facie case of discrimination against CIDA. It was clear that the employee was a competent employee, and if not for disability and the application of the Afghanistan guidelines, she would have been able to be posted in Afghanistan like the rest of her team. Moreover, the tribunal found that the employer did not meet its procedural duty to accommodate the employee to the point of undue hardship. Thus, there was no justification for the discrimination.

That said, in a surprising turn of events, the tribunal also stated that in order to determine some of the remedies sought by the employee, it needed to examine whether accommodation would cause the employer undue hardship. Ultimately, the tribunal found that it would constitute an undue hardship on the employer to have to accommodate the employee in Afghanistan.

Interestingly, the tribunal did not award any damages that would have been directly linked to a posting in Afghanistan. But it awarded certain other monetary amounts and other systemic remedies.

At the initial appeal before the Federal Court, the parties accepted that posting the employee to Afghanistan would impose undue hardship on the agency. However, the employee asserted that the tribunal’s decision should stand—undue hardship or not—because employers have both a procedural duty and a substantive duty to accommodate, and the agency failed to meet its procedural duty. The court disagreed and found that once a finding of undue hardship was made, the complaint should have been dismissed as the conduct was not discriminatory.

At the Federal Court of Appeal, the Court commented that there was no dispute that if the employee did not suffer from type 1 diabetes, or if the Afghanistan guidelines had not been applied, she would have been posted in Afghanistan again. However, the Court found that there is no separate procedural duty to accommodate under the Act that can give rise to remedies where the employer can show undue hardship, and more specifically where the employer can meet the bona fide occupational requirement test set out in Meiorin (British Columbia (Public Service Employee Relations Commission) v. BCGSEU , [1999] 3 S.C.R. 3):

  1. That the employer adopted the standard for a purpose rationally connected to the performance of the job;
  2. That the employer adopted the standard in an honest and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose; and
  3. That the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.

When Meiorin was decided, the Supreme Court of Canada was not intending to create a separate procedural right to accommodate. The Federal Appeal Court stated:

“There is simply one question for the purposes of the third step of the test: has the employer ‘demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer’? Once the employer has established this, then it has satisfied the requirements of the third step…it is a bona fide occupational requirement and it is not a discriminatory practice”

Therefore, the appeal was dismissed.

What can we take from this case?

This case presents some serious issues when it comes to our understanding of the duty to accommodate. For years, it has been generally accepted that there are both a substantial and a procedural duty to accommodate an employee to the point of undue hardship, and if an employer breaches the procedural duty to accommodate, the human rights legislation has been breached.

This case appears to change that understanding; especially the court’s claim that:

“While there are other decisions of human rights tribunals that have found that remedies could be granted for a failure to satisfy a procedural duty to accommodate even though the accommodation of the particular person would impose an undue hardship on the employer, such decisions cannot lead to a conclusion that such interpretation is reasonable or correct if that interpretation cannot be supported by the applicable legislation.”

It may seem puzzling that a court can find an employer has breached its duty to accommodate but that the defence of undue hardship nonetheless applies, when the question was whether the employer accommodated the employee to the point of undue hardship.

This is a case that may find its way to the Supreme Court for further clarification, as it could influence how human rights cases are decided. The court will have to reconcile this confusing matter made at the end of the decision:

“…there may be another situation where the application of the Afghanistan Guidelines could result in a particular employee being denied a posting in Afghanistan even though the needs of such person could be accommodated without imposing an undue hardship on the employer. However, this is not the case in this matter and the Tribunal did not identify any such particular situation. The Federal Court Judge also noted that Health Canada was planning to revise the Afghanistan Guidelines…”

Should there be an appeal, we will keep you posted.

Do Less Marketing

That headline sounds like heresy coming from someone who runs a legal marketing agency for a living, but hear me out.

Try as I might to remain benevolently immature until the end of my days, there are some telltale markers of adulthood (nay, perhaps even middle-age) creeping into my subconscious of late. There are external indicia of course – one’s offspring earnestly advising how fat and bald you are, strangers calling you “sir” straight to your face with nary a hint of sarcasm – but I purposely adopt a stance of willful blindness regarding those. No, what I notice now are the internal mental recalibrations that come with the passage of time. The ability to find joy in silence – or solitude. Less focus on the price of something and more on its value. An appreciation for simpler, more enduring things.

Many of us spend a good chunk of the first half of our lives in the rambunctious pursuit of “stuff”. Then a switch flips somewhere along the way and we spend the other half trying to de-clutter. GreenTarget’s 2014 State of Digital Marketing and Content Survey for Law Firms has reinforced my recent thinking that we are collectively arriving at a similar sort of switch-flipping point when it comes to the marketing content law firms produce.

Technology advancements over the last decade – blogs, social media, easily-updateable website content management systems like WordPress – have democratized content publishing and helped level the playing field, so that smaller firms can better compete against larger ones by showcasing their expertise. But as an ever-larger number of firms produce more and more material, it can be harder than ever to capture the attention of your desired audience.

From the GreenTarget survey:

“First the digital era made everyone a publisher, giving marketers and bloggers, advocates and experts a dissemination platform that had long been the exclusive province of the mass media. Then the mobile era brought devices that made all this new content available to consumers anytime, anywhere. Today we are in a new era, one marked by constant access and endless communication. Welcome to the era of information overload.

The legal world is no exception. For years, law firms have been publishing a steady stream of alerts, newsletters, articles and other forms of content. With the advent of digital media, that stream has become an ocean – one that threatens to drown out all but the most compelling voices.

And really that last passage – drown out all but the most compelling voices – is at the crux of my thinking. Because in a hyper-connected, media-saturated world, the relative value of generic content diminishes, but the ability of really great marketing to connect, circulate and reach a much larger audience is enhanced. Real-life example: amidst the usual deluge of corporate holiday well wishes last December, WestJet went miles beyond the ordinary with their “Christmas Miracle” video. Chances are high you’ve already seen it. They set up an interactive video booth where departing passengers in the Hamilton and Toronto airports told Santa their Christmas wish, only to find their dreams realized upon landing in Calgary by a crew of Santa-helping WestJetters who had stormed the malls in a fulfillment-frenzy while the flight was en route.

WestJet had set a public goal on their blog to attract 200,000 views for their video. But when you come up with something this unique, this good, and execute it this well, you create the potential to blow the doors off even your optimistic projections. In WestJet’s case, the video has surpassed 36 million views at the time of writing. That’s more than the entire population of Canada.

Now I’m not saying your next law firm YouTube video is going to hit that stratosphere; without question it will not. But I do believe the underlying premise of striving to do something remarkable is entirely apt. Because the firms that deliver content and marketing well beyond expectation – be it a client seminar, practice group blog, or alumni event – will be disproportionately rewarded relative to those that produce “average” outputs, even when the extra cost and effort required to doing something special is factored in. In baseball terms, firms and their marketers should be looking to increase their home-run count, rather than pursuing increased base hits. In a crowded market, it is the stars at the very top of the game that shine brightest. Bringing that back to the firm level, that means re-examining the state of your current marketing mix. If you’ve only got limited time and budget for your marketing (and you do), focusing on improving your signature stuff – even if that means sacrificing somewhere else – makes more sense than ever.

So make fewer things if you must, but make them better. We must be getting older…

Clio Conference More Than Food Trucks and Yoga

When my company started working with Clio back in 2008, I had a gut feeling they were onto something. But frankly, I never would have predicted the immense success this cloud-based software start-up would see over the next six years. Even without my admitted bias, I think most would agree that today, Clio has evolved into a major player in the legal software sector and one of the most engaged companies within the North American legal community. And by many accounts, they’re also the brains behind one of the most unconventional and enjoyable legal conferences we’ve seen to date.

It is my great pleasure to share some details on the upcoming Clio Cloud Conference, which will be held in Chicago this September 22nd and 23rd. With the tagline “Where forward-thinking lawyers and cloud technology converge,” the conference includes speakers whose names are pretty recognizable:

…plus many others whose names you might not know (yet), but whose insights and expertise will be of value. I attended last year’s inaugural conference and must admit, it was far more than I had expected. The programming and speakers were on par with other major conferences, but the ecosystem and scale surrounding the conference were far more intimate — one-on-one and small group conversations seemed to be taking place everywhere.

This year’s agenda includes three tracks: Business, Technology and Clio University, as well as what I considered the hidden gem last year, the “unconference” portion. While it’s billed as a user conference, I think there’s something for everyone here, regardless of whether they’re a Clio client. Session topics include:

  • tech trends for law firms
  • BYOD
  • customer service
  • accounting and billing tips and best practices
  • digital and content marketing
  • paperless offices
  • virtual communication and collaboration
  • entrepreneurship
  • career development
  • workplace culture
  • social media (both for personal use and legal process serving)

Also like last year, expect Clio to bring “the fun”. At what other legal conference have you done sunrise yoga, played pickup basketball, had a food truck breakfast, or caught a game from a skybox at Wrigley Field? After attending last year’s event, Mitch Kowalski remarked, “I’m still trying to figure out what I just witnessed—other than what I hope is the future of legal conferences.” That kind of head shaking was going around. Some of “the fun” was on the agenda; and some of it was intentionally held back as a surprise factor for attendees.

Finally, our friends at Clio have generously offered Slaw readers a $400 discount on registration (use discount code “CCC2014-SLAW” when you register). If you would like to learn more, visit

If You Think Our Red Tape Is Bad…

We often get frustrated with seemingly unnecessary red tape and arbitrary rules – but every once in a while we run across requirements from other countries that are mind boggling. For those who have never encountered this, it goes something like this.

A government agency or business in a country your client does business in requires a copy of a document. If they were here, they may not need that document in the first place, but even if they do it would be a simple manner of scanning and emailing a pdf.

But no, they require a notarial copy – still simple enough. Then they say the document needs to have a corporate seal as well. Explaining that most Canadian companies don’t have corporate seals because they have not been required here for decades doesn’t help – its easier and cheaper to just buy a corporate seal.

But they won’t accept a notarial copy on its own, it has to be consularized, meaning the document has to go to that country’s embassy or consulate to be vetted and stamped or formalized in some way. So you look up the process for that on the consulate web site and see that they have very specific rules about things such as what time of day they will accept documents, what ID has to be provided by the requesting person, and the need to bind the document together in a way that avoids substitution. It may suggest methods such as sealing wax or an eyelet. No staples allowed. So the firm gets canvassed to see if there exists anywhere an eyelet/rivet tool that some lawyers used decades ago to fasten wills together. That fails, so you end up sending the document to a print shop to be bound.

Before the bound document goes to the consulate, it has to go to the provincial Ministry of Government Services so they can sign the document to confirm that the notary who signed it is really a notary. Then it goes to the consulate where they add their official seal for a modest fee.

But we are still not done. All of this is in English, so you have to send it to be translated by a certified translation agency or law firm in the country it is going to.

Then it can go to whomever requested it.

By the time this is all done, that document copy has been certified/stamped/sealed by: originating company, notary, provincial official, consulate, official translator.

The task that would have taken 5 minutes here has stretched into hours of work, various fees, and an elapsed time that might be measured in weeks.

Verdict a Victory for Defamed Professor and Defamed Justice System

In June a jury awarded my uOttawa colleague Professor Joanne St. Lewis a stunning $350,000 verdict in her defamation lawsuit against blogger and former University of Ottawa professor Denis Rancourt. The jury’s verdict not only vindicated St. Lewis but also the entire justice system because the defendant had impugned the integrity of most of the judges who participated in the proceedings and the integrity of the Canadian justice system.

Let me be transparent in exposing my connections to the dramatis personae and my own biases about the case. Professor St. Lewis is a colleague whom I consider a friend and respect and admire, especially for the action that she took in bringing this defamation lawsuit. I have met and briefly chatted with one of the judges involved (the Hon. Robert Beaudoin) and with one of the Masters (Master McLeod). I have never met the trial judge (the Hon. Charbonneau) or any of the other judges involved against whom accusations of reasonable apprehension of bias were leveled. I know some of the other principals involved including University of Ottawa President Allan Rock, some of the lawyers at Borden Ladner Gervais LLP (my former law firm in Toronto) who represented the University of Ottawa on the defendant’s unsuccessful champerty motion. I know Professor St. Lewis’s lawyer, Richard Dearden, on a professional basis which is to say I have seen him at various law events or elsewhere and chatted about legal matters, but not this case. I have never met the defendant.

I am a member of the Law Society of Upper Canada and as those who have read past columns of mine or follow me on Twitter can hopefully attest, at times I am critical of that body and at times praiseworthy. The same can hopefully be said of my writing and commentary about judicial ethics and the administration of justice generally. I take seriously my ethical duties as a lawyer, including Rule 4.06 of the Law Society’s Rules of Professional Conduct, the commentary to which states that:

Where a tribunal is the object of unjust criticism, a lawyer, as a participant in the administration of justice, is uniquely able to and should support the tribunal, both because its members cannot defend themselves and because in doing so the lawyer is contributing to greater public understanding of and therefore respect for the legal system.

It is that ethical duty that led me to write this post. Perhaps I should have written it earlier, when the defendant first started to assail the integrity of various judicial officers who could not defend themselves but I did not want to interject commentary into a process that the defendant was successfully hijacking, nor did I want to give credence to his baseless attacks on the integrity of those judges.

From my brief experience as a litigator in San Francisco and Toronto and my now longer experience as an observer of the justice system, I tell my students that litigation is like war: it is easy to start but difficult to predict how it will turn out. Never was this maxim more true than in this case.

In my last blog, I argued that we need to ration civil justice. This case is Exhibit A in support of my argument. According to the court docket, there were 30 motions between 2011 and the delivery of the verdict in June 2014; the defendant brought 23 of these. CanLII reports 23 judgments in this case.

The defendant unsuccessfully sought to disqualify Justice Robert Beaudoin on the grounds of reasonable apprehension of bias because there was a scholarship in honour of Justice Beaudoin’s deceased son at the University of Ottawa where his son had attended which was funded by the Beaudoin family and the Government of Ontario. In addition, the defendant argued that Justice Beaudoin could be unfairly influenced because the University’s counsel, Borden Ladner Gervais LLP, had named a boardroom after Justice Beaudoin’s late son because he had worked there. The defendant brought this motion without notice and Justice Beaudoin rejected the claim but recused himself nonetheless. Another judge found no reasonable apprehension of bias. Leave to appeal the decision was denied. The Ontario Court of Appeal rejected an appeal and the Supreme Court of Canada dismissed the application for leave to appeal with costs awarded against the defendant and in favour of St. Lewis on a solicitor and client basis.

The defendant also unsuccessfully challenged other judges who heard motions in the case on the grounds of reasonable apprehension of bias. Then the defendant sought to disqualify the trial judge – Justice Charbonneau — because he is a University of Ottawa graduate and donates money to its scholarship fund. Justice Charbonneau rejected this challenge. The correctness of that decision will ultimately be determined on appeal should the defendant elect to do so.

Throughout this three year ordeal, the defendant has demonstrated a pattern of using the Canadian justice system to his advantage when it suits him but then opting out when it displeases him.

The defendant walked out of the trial mid-way through. According to media reports, he “likened the trial to proceedings in the Soviet Union during the Stalinist era.”

Such actions constitute an assault on the integrity of the Canadian system of justice. John Locke wrote that the reason why people decide to quit the state of nature is because of their belief in the impartial adjudication of disputes through the courts rather than resort to violence. The Canadian system of justice is rightly respected and envied around the world. It has its flaws; some like the access to justice problem are very serious. However, the impartiality and integrity of the men and women who preside as judges and judicial officers over legal proceedings in this country must be ranked near the top if not at the top in the world.

Comparing a trial in Ottawa to Stalinist proceedings is a farce and an attack on the integrity of Canadian judges and the Canadian administration of justice. You cannot “opt out” of the justice system when it does not suit you. Such actions lead to chaos and anarchy and undermine the rule of law which is the foundation of an orderly society in Canada.

Thus, when a jury of ordinary men and women made its award of $350,000, it not only vindicated St. Lewis, but it also fortified the Canadian justice system.

Innovation, Entrepreneurship and Experience: A Young Lawyer Carves Her Own Path

When Carli van Maurik shares her practice philosophy with other lawyers, she’s usually met with one of two responses: raised eyebrows or enthusiastic support.

Carli van Maurik

Carli van Maurik

Thankfully, most colleagues fall into the latter category.

Ms. van Maurik is a lawyer with the British Columbia business law firm Whiteboard Law. She’s based in Victoria, where she honed her legal skills at one of the city’s well known firms before branching out to follow her entrepreneurial instincts.

Most lawyers eventually narrow the focus of their practice or notice that clients could be better served by a different approach. But not many take the extra step of proactively changing the way they work. I recently had a conversation with van Maurik to find out how she’s carved her own path.

Tell us a bit about your practice…
I practice business law exclusively – I work on shareholder agreements, licensing agreements, incorporations, business sales and acquisitions, etc. I work with Jim Mutter, the firm founder who is based in our Vancouver office.

How have you aligned your services with client needs?
Most of my clients are high tech entrepreneurs or professionals; they can’t easily leave their offices for meetings with their lawyer and some of them spend a lot of time on the road.

I meet clients where they are, whenever it’s convenient for them, even if it means setting up a videoconference via Skype.

Do you use alternative fee structures?
Yes. The vast majority of my fee arrangements are fixed or hard quotes. I keep an eye on the time, but only because I want to make sure that I am efficient and fast.

When I’m determining fees, I consider a lot of factors; the client’s financial structure, their long-term potential, the complexity of the issue at hand and deadlines that must be met.

How have other lawyers reacted to your new practice?
I’ve only met one lawyer who blatantly told me I was making a huge mistake. Everyone else is curious and supportive. One senior counsel told me that he thought the way I’ve set things up will be how most lawyers practice in the future (but also that he’s too close to retirement to implement changes now).

Overall, I think most lawyers know that the practice of law needs to evolve.

What about clients? How have they reacted?
Clients love it!

They know they have to be innovative if they’re going to succeed; they can see that I’m trying hard to run my business based on the same philosophy.

I run a “lean” practice, operating with low overhead and efficient technology. This mirrors the way many of my clients operate.

I’ve tried to be very proactive in developing my client relationships. I try to think like an owner, ask a lot of questions and avoid waiting for clients to raise an issue or idea.

What has surprised you about the change in your practice?
It took me a bit of time to decide to make the leap, but I’m glad I did it at this point in my career. Even in eight years of practice, I had developed habits that I’ve had to rethink and reconsider. Now, I step back and try to ask myself “Is this the best way to do this?”

I’ve also learned how well something simple can actually work. For example, some firms will spend $3,000 on a a filing cabinet or purchase an elaborate printer/scanner with so many features that it constantly jams or needs tuning. Think about the wasted time while a staff person or lawyer fiddles with the machine or the wasted money on paper storage. I have a mid-range copier/scanner/fax and haven’t had any trouble with it. I also keep my documents on a secure cloud server.

I also have a different attitude towards quoting fees now. Two experiences last summer really hit home. The first was a quote of $1,500 to do some electrical work at my home. The bill arrived and it was $4,000. This bill included $60 for a “light bulb installation fee”. When I asked for an explanation, the service provider returned the bill to me reduced by $1,000, without any explanation. I could have interpreted this any number of ways, but it really irritated me. And then I thought about how surprised legal clients sometimes are when they receive bills.

The second experience was a conversation with a friend who owns a dog-walking company. She isn’t apologetic about her fees and payment instructions. She is very up front and clear about how her human clients are expected to keep up their end of the deal and the consequences of not doing so. She also knows what she’s worth. She said, “Carli, client service is about doing quality work and remembering that you’re running a business. Lawyers are no different and shouldn’t think they are.”

Any advice for other lawyers thinking about making a similar change?
Case law works on precedent, but you don’t have practice that way. Be creative; nothing in your practice should be immune from change.