Slaw

One thing that became obvious at ABA TECHSHOW in Chicago this year was that lawyers are embracing tablet devices like the iPad in great numbers. Some people claimed that iPads even outnumbered laptops at the event. I’m not sure if that claim would have stood up to a head count but it was certainly plausible. The little tablets were everywhere.

So, fine, if you’re thinking about bringing a tablet device into your practice I have some advice for you.

Connectivity

There’s no getting around it – most tablet devices are barely useful without some kind of Internet connectivity. You can’t check your e-mail, can’t log into your cloud-based billing system, can’t research that case law. You know that nifty dictation assistant app you have? The one that tells you what the weather is and helps you navigate to the client’s office? You might as well be speaking Klingon if you don’t have connectivity – all of the popular mobile speech recognition apps require Internet connectivity to translate your words.

Wi-Fi is great, but you can’t always rely upon having good public Wi-Fi. As attendees at ABA TECHSHOW discover year after year even when wireless is provided it can be rather hit or miss. That’s why if your tablet is really a business machine you need to get down to business and get one that supports 3G (or now LTE for the newest models). When you have Wi-Fi access – great, use it. When you don’t (or when it isn’t secure) you’ll hopefully have a 3G or 4G data connection to fall back on.

Virtualization

Tablet devices annoy, irritate and even frighten IT people. Why? Well because users come in every other day with whatever gadget they bought at Best Buy last night and insist the IT guys integrate it into their line of business systems. IT ends up having to support 50 different devices with 6 different operating systems and users aren’t always very understanding when IT tries to explain that the glorified picture frame the user bought won’t run the firms’ entire practice management system. Add to that the consequences when a user leaves a tablet loaded with confidential firm (or worse, client) data in a cab or a bar…there are a lot of really bad things that can result.

So what’s the solution? Inevitably the solution is going to be virtualization. A return, of sorts, to the glass house where all of the data (and most of the processing power) actually lives in a data center much like the old mainframe days. Joe User, on his tablet device, won’t actually be firing up an app to check his e-mail or edit a document – he’ll just fire up his virtual desktop app which (after asking for his username and passphrase) will reach out through that network connection we talked about and connect to one of the servers back in the data center. That server will then provide Joe User with a virtualized version of his desktop – just like on his real computer.

From there he can launch apps, compose documents, handle e-mail, enter his time…almost anything he can do from his desktop machine. Except he’ll be doing it on a 9” screen and may or may not have anything resembling a real keyboard.

Since no data lives on the tablet it’s far more secure. The tablet is essentially just a portal to the virtualized desktop living on the server. Since the remote access apps are either browser-based or at least largely cross-platform there are fewer support headaches for IT (Until somebody comes in with a RIM Playbook or other oddball device).

Better Windows 8 Than Never

Don’t have a tablet yet? You may want to wait just a bit…in the next several months you should start to see Microsoft Windows 8 tablets hit the market. It’s hard to know yet how good they’ll be but if you’ve seen a Windows 7.5 Phone on a decent piece of hardware (like a Nokia Lumia 900 or HTC Titan II) you have to be intrigued by the possibilities. True, they may never have as many apps as an iPad does and if your primary use for the tablet device is to play Angry Birds, well, maybe an iPad is the toy for you. But for actual business users the Windows 8 tablets will almost certainly be worth a look.

You may still end up opting for an Android or iPad device after checking out the Windows 8 tablet, but if you can wait until they arrive to make that call at least you won’t have to look longingly at them and wonder when your colleagues show up with them.

Conclusion

The tablet platform appears to be here to stay. Make sure if the tablet is a tool for you that you get the right tool for the job and that you use it securely. Oh, and give your IT guy a break. It’s hard to already be an expert on a device that didn’t even exist last week.

In the Supreme Court of the United States decision of Kansas v. Marsh Justice Antonin Scalia stated,

It should be noted at the outset that the dissent does not discuss a single case-not one-in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby.

The court was considering the constitutionality of the death penalty in the Kansas, where the statute specifically provided for this punishment where the mitigating and aggravating factors during the sentencing of a murder were of equal weight. The Kansas Supreme Court had found this to be a form of cruel and unusual punishment. After dismissing what Justice Souter described in his dissent as the "risks inherent in capital punishment," the SCOTUS ultimately overturned the Kansas Court's decision and upheld the death penalty.

In the aftermath of the Michael Rafferty trial there is enormous anger and outrage. Even Mr. Justice Thomas A. Heeney concluded his comments at the sentencing this past Tuesday saying,

Only a monster could commit an act of such pure evil. You, sir, are a monster.

The strong swell of emotions has given rise to some calls for restoring the death penalty in Canada. If not for Rafferty, then for people like Paul Bernardo, where there are clear videos that appear to dismiss any doubts about their guilt.

The death penalty was abolished on July 14, 1976 in a close vote of 130 to 124, with certain exceptions retained under the National Defence Act retained which were later removed in 1998. Yet a 2012 Angus Reid public opinion poll indicated that 61% of Canadians supported reinstating the death penalty for murder in Canada, and Prime Minister Harper himself indicated he supported the death penalty in 2011.

The problem with perception that it rarely operates in certainties. And as compelling as a video may appear to be, mistakes can happen in identification. And a recent study out of Columbia Law School has just demonstrated that not only can mistakes happen with the death penalty, but that they do.

Sorry, Antonin.

On December 8, 1989, the State of Texas executed Carolos DeLuna for the murder of Wanda Lopez. He consistently professed his innocence, as many on death row do, but also had the name of the man he believed actually committed the crime – Carlos Hernandez. Spanish culture has a word for people who share the first name, tocayos, and the two were referred to as such in their community in Corpus Christi, Texas.

But the two men shared more than just a given name. They were the same height and weight, and were often mistaken as twins. DeLuna was convicted based on the eyewitness testimony of Kevan Baker, who had seen the assault at a gas station which turned into the murder. The problem was that both Hernandez and DeLuna happened to be in the same location, and Baker acknowledged he had trouble distinguishing Hispanic people.

DeLuna was the one that police apprehended. Prosecutors refused to believe that Hernadez even existed, and suggested that DeLuna had simply made him up, even though Hernandez had an extensive criminal record. Forensics were never conducted.

Professor James Liebman recruited a dozen law students four years after the execution, and revealed a mountain of information which seems to demonstrate that DeLuna was innocent as claimed. The Columbia Human Rights Law Review (HRLR) has devoted the entire Issue 3 of Volume 43 of the journal to their findings, which are also detailed on a website, Los Tocayos Carlos.

Liebman details just some of the many things that went wrong with the trial:

There is bad eyewitness identification; an incomplete and imperfect [police] investigation – they spent two hours at the scene that night [and never returned during the day], and they missed all kinds of things or didn’t bring them up at the trial,” including bloody footprints inside the store. There was also ineffective lawyering by court-appointed counsel, possible prosecutorial misconduct – including the suppression of police audio of the manhunt for the killer that suggests the bulk of the 40-minute chase was spent pursuing a man fitting Hernandez’s description, and not De Luna’s – capped off with “not very thorough” post-conviction appeals.

The medieval rabbinical commentator Maimonides stated in Sefer Maitzvot,

It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.
[translated]

That single innocent may have been located. If there's a rooftop in Canada where the lobby for capital punishment can be rebuffed you can expect they'll now be shouting the name of "Carlos DeLuna" at every turn.

Toronto will be the first court in Canada which will have a formal policy for the kirpan, a ceremonial dagger worn by observant Sikhs. Other courts in Canada may allow the kirpan, including the Supreme Court of Canada, but do not yet have formal procedures in place.

The arrangement came about through cooperation between The World Sikh Organization of Canada, the Ontario Human Rights Commission, Toronto Police, the Toronto Police Services Board and the Ministry of the Attorney General.

Curtis Rush of the Toronto Star explains,

The policy was developed as a settlement of two separate human rights cases.

The first one involved a Sikh who was to attend a mandatory class trip to the victim/witness assistance program at the Old City Hall courthouse. That student was denied entry because she would not remove her kirpan.

The second instance involved a Sikh man who was summoned for jury duty at the University Ave. courthouse and was allowed to enter with his kirpan in the morning, but denied re-entry after the lunch break.

Those following the US antitrust litigation against Apple and five of the big publishers in respect of ebook pricing by now will have seen Judge Cote's decision to deny the defendants' motion to dismiss the class action suit by consumers. The Opinion & Order, In Re Electronic Books Antitrust Litigation 11 MD 2293 (DLC) makes for quite interesting reading. I read a PDF of the Opinion last night, and the Opinion's also been uploaded to Scribd.

It's been a long while since I've read one of these, but it's evident from the Opinion that Judge Cote had no difficulty allowing the consumers' antitrust complaint to proceed. At all.

Analysis and review of the ruling abounds this morning. Financial Post via Bloomberg, Thomson Reuters News & Insight give good, non-technical overviews, and good legal commentary, including a blog post from a lawyer-author. (A hat tip to Robert Richards for the latter.)

Now, what will happen in the Quebec litigation?

Big data is a hot trending tech issue. Wikipedia defines big data as "a term applied to data sets whose size is beyond the ability of commonly used software tools to capture, manage, and process the data within a tolerable elapsed time. Big data sizes are a constantly moving target currently ranging from a few dozen terabytes to many petabytes of data in a single data set."

The initial issue with big data is the ability to actually work with massive data sets – how to store, search, and manipulate it. But the tools to do that are becoming more sophisticated, and attention is turning to how to take advantage of big data. This McKinsey report entitled Big data: The next frontier for innovation, competition, and productivity is a good summary of the possibilities. There is potential for increased profit margins for retailers, reduced costs for healthcare, product improvements and more.

This all sounds good. Consider for a moment though that big data means massive databases that include huge amounts of customer information. And the information that governments have on us is massive as well. It will be tempting to amass as much data (including personal information) as possible, as the more data is there, the more information that can be learned from it. That flies in the face of privacy principles that say one should only collect the smallest amount of personal information you need for the immediate purpose, and should not keep it for longer than you need it for that purpose.

It is possible to anonymize personal information to avoid the issue, but that is done on a sliding scale – a little anonymization makes it easy to recombine it with other information and figure out who the individuals are – a lot of anonymization makes the data less valuable.

Big data uses that determine generic things like trends and product features are one thing – but it can also be used for targeting individuals for things like advertising and medical treatment. Individuals may welcome or be horrified by that, depending on the use and personal viewpoints.

Another concern is the creeping (and creepy) trend towards industry and government big brother type uses.

It has been pointed out that big data needs to be complemented by "big judgment" . As this Harvard Business Review article entitled Good Data Won't Guarantee Good Decisions points out, "At this very moment, there’s an odds-on chance that someone in your organization is making a poor decision on the basis of information that was enormously expensive to collect." That sentiment may very well apply to poor decisions on the privacy aspects of big data as well.

Probably the most interesting thing happening in the BC legal world just now is the Justice Reform Initiative launched by the BC government back in early February. The review is chaired by Geoff Cowper, QC, of Fasken Martineau. The terms of reference for the initiative are ambitious. According to the government’s press release: “He [Geoff Cowper] will identify the top issues that are affecting the public’s access to timely justice and what can be done to ensure the efficiencies already underway have the desired impacts while respecting the independence of the judicial system.” The chief justices of the BC courts have taken a very firm stand on the issue of judicial independence; former Attorney General Geoff Plant also had some thoughts on this important issue.

Several other issues are also on the table: the Legal Services Society (that is, BC legal aid) will provide advice on efficiencies that can be achieved, and an outside review of British Columbia’s system for approval of prosecutions will also be conducted. (In BC, criminal charges are brought forward by Crown Counsel rather than the police.)

You can follow the work of the BC Justice Reform Initiative via the chair’s blog. A final report is due in July 2012.

Meanwhile, an international conference, developed by the Hague Institute for the Internationalisation of Law (HiiL) [Ed. note: headed by Slaw columnist Sam Muller], explicitly addressed some of these issues. Entitled “Innovating Justice Forum 2012: Towards basic justice care for everyone”, the conference was held earlier this April in the Netherlands. HiiL was formed in 2005 as a not-for-profit research and development institute for the justice sector. Their emphasis is on making justice work for both people and organizations, with a strong belief in “innovating justice”.

From the conference programme:

Everybody needs basic justice care: access to fair, workable solutions for problems that can become a threat to a person’s livelihood. Access to justice ensures secure, trustworthy and economically viable relationships: at home, at work, on the land, and within the community. The Innovating Justice Forum 2012 is the first attempt to assess how people’s basic justice needs are protected and what are the trends in delivery of legal services to meet these needs across the world.

Our own David Bilinsky, Practice Advisor at the Law Society of British Columbia, gave a keynote address on “The climate for innovation in the justice sector”. Again, from the conference programme: “Why is it that it is so difficult to bring fundamental change and innovation to the justice sector? The challenges for innovators in terms of funding, integrating innovations in the system, scaling up and many others. What is needed for a better innovation climate?”

HiiL has published draft recommendations and a report on world-wide trends in providing access to justice. Further reports and recommendations are planned.

Closer to home, a promising medical-legal project is underway here in BC. This new initiative is focused on Vancouver’s Downtown Eastside. A group with representatives from the Legal Services Society, CLEBC, UBC Faculty of Law, and Access ProBono is working in consultation with the Downtown Eastside community and an established medical community initiative known as RICHER. RICHER is an acronym for: Responsive, Intersectoral, Children’s Health, Education and Research; this group describes their work as follows:

This program is a community-based primary healthcare service specifically designed to meet the unique needs of children, youth, and families in Vancouver’s inner city neighbourhoods. The focus is on children who are particularly vulnerable because of their material and social circumstances as they are most likely to suffer the consequences of delayed development and poor health.

Our approach provides important links to specialized healthcare services in partnership with families and their community-based support networks.

The new BC initiative is just one example of a medical-legal partnership, in which lawyers are included as essential members of the healthcare team. Medical-legal partnerships are a growing phenomenon in North America. Through direct legal assistance, institutional and systemic policy change, MLPs address factors that have a direct impact on health, such as food and energy security, housing conditions, education, and personal safety. They recognize that legal problems are often linked to or the result of other issues. For example, close links between health issues and legal issues arise in the following situations, where families and those working to support them face a dilemma:

• parents who are homeless, unable to find suitable housing, or face eviction, where the only support offered by the formal system is the apprehension of their children;

• parents living in substandard housing who are told the housing condition (mold, standing water, lack of heating) underlies their child’s repeated hospitalizations for compromised respiratory status and risk being reported for neglect or eviction by their landlord if they complain.

If one follows through on what frequently happens in each of these scenarios, there is growing evidence of the short and long term health and medical costs of ineffective management. Preliminary research indicates that if a parent and children can be kept together in stable housing and the children supported through early childhood education, there is a direct correlation to significant savings in the health and justice sectors.

This medical-legal partnership movement increases our understanding of factors that affect the costs of the justice system and the importance of taking the broader view. If we consider the justice system in isolation, we may miss opportunities to provide the best and most cost-effective service from a systems and public policy perspective.

I’m hopeful that this good work underway both across the world and close to home can be brought to bear on the work of our BC Justice Review Initiative.

The Quebec Court of Appeal recently rendered a decision clarifying the restriction set out at section 128(1)(a) of the Act respecting the Barreau du Quebec ("Act"), which reads:

128. (1) The following acts, performed for others, shall be the exclusive prerogative of the practising advocate or solicitor:

(a) to give legal advice and consultations on legal matters; […]

According to this section and in order to ensure the protection of the public, certain acts are reserved for lawyers called and registered with the Bar. The illegal exercise of the legal profession reserved to lawyers constitutes a penal offence. Unless a lawyer, providing legal information is permissible, while providing legal advice is not.

In Charlebois c. Barreau du Québec, 2012 QCCA 788 (CanLII), the appellant (not a lawyer), president of the Association des syndicats de copropriété du Québec, an organization providing services to syndicates of co-owners, was alleged to have provided legal advice to an old friend, who was the vice-president of his own condominium association regarding the agenda and running of the condominium's general meeting via a series of emails. At first instance, the judge found that there was a reasonable doubt as to the appellant having committed the offence and as such, could not conclude that the appellant had breached the Act. The Superior Court of Quebec, on appeal, found the appellant guilty of the offence, concluding that he had provided more than just an enumeration of the law and thus had gone beyond the limits of legal information.

The Quebec Court of Appeal was therefore required to ask itself if the emails exchanged between the appellant and his friend constituted “legal advice and consultations on legal matters”, an expression not defined in the Act.

We have discussed on Slaw the mandatory disclosure of information from Facebook pages in civil litigation, and the disclosure of FB passwords to prospective employers. I do not believe that we have discussed the disclosure of information from FB in the course of a criminal investigation.

A German court has recently ordered disclosure of the content of private messages and pictures from a suspect’s FB pages. A write-up of the case appears in International Law Office.

Is this just another search warrant for a computer? Would courts where you are have any difficulty with an application for such a warrant? (There has been a lot of press in Ontario lately about a computer search being a search of a place not the search for a thing. The request has to be properly framed.)

The German court seems to have directed the order to Facebook itself – in Ireland, where FB controls its European operations, and then to California. The report makes it sound as if FB was not readily complying, though it’s not completely clear.

I think we have noted the US cases about whether law enforcement authorities can require someone to provide them with a decryption key for the person’s computer. Held so far: border crossing authorities can so compel; general police cannot. No US Supreme Court ruling yet. Is a password any different from a decryption key? Does it matter if law enforcement can do indirectly – get the material from the web host or social media company or cloud computing provider – what it may have trouble doing directly? Or is a warrant a complete answer to such concerns?

I attended an excellent session on collection development for law libraries at the Canadian Association of Law Libraries Conference last week. The session was titled "Collection Development in an Era of Shrinking Budgets". The program stated:

Aimed at those involved in collection development in all types of law libraries, this practical session will discuss strategies and best practices for coping with rising prices and shrinking budgets. Our two panelists will share their experiences in courthouse, private and academic law libraries. The session will then be opened up for discussion and comment by all attendees. Come prepared to share your good ideas!

Speakers
Janet Moss, Head Law Librarian, Gerard V. LaForest Law Library
Iain Sinclair, Knowledge Manager, Stewart McKelvey
Rhonda O'Neill, Assistant Director, Alberta Law Libraries

Moderator
Anne Bowers, Librarian, Northumberland Law Association Library

The panelists were engaging and the session was interesting, especially with the mix of approaches that came through from the different library types represented among th panelists. One feature of the session was a chance to share some ideas and suggestions in small groups. Thanks to Iain for providing the notes from the audience so that I could share them with Slawyers.

Collection development symposium – audience suggestions

• Continuous need for re-evaluating your collection, talking to your users and finding out their requirements.
• Resource sharing agreements and relationships. Look to work together with different library units. Divide up responsibility for different topics.
• Negotiate for the portion of the content you want (commentary/analysis).
• Work with the publishers on bundling of the electronic commentary on their sites with pricing and licensing that works for the users.
• Consortia and interlibrary loans.
• Visit vendor booths and give feedback. Request bound formats – talk to authors.
• Needs assessments – feedback from front-line librarians.
• Get your library community involved. Building of relationships and review of collection.
• Communicate and build trust with the vendors.
• Collaboration with other library communities.
• Collection usage statistics are key.
• Implementing rotational cancellation of loose-leaf services.

♫ I know you're waiting and you're so damn nervous
I know you're hoping that I could explain this
Look in my eyes
I will try and show you…♫

Lyrics, Music and recorded by Rains.

Two different articles hit my desk this morning and I thought they provided a sharp contrast into the divisions within the legal profession and ultimately, the future of the legal profession.

The first was from Kirk Makin writing for the Globe and Mail. His article, "Courts turn to Wired Justice in Push to Cut Costs" contained some interesting quotes. The article is about the use of Skype enabled testimony in court in an attempt to cut costs.

On one hand we have the forward-looking comments of Brian Gover:

“The legal system is going to be exposed to ridicule if we don’t move forward with innovative ways of taking evidence,” said Brian Gover, a veteran Toronto lawyer at Stockwoods LLP. “One of the great issues for us in a time of austerity is going to be cost control and delivering justice in an efficient way. Technology has provided an answer to the problem.”

On the other hand is the deeply held beliefs of such lawyers as Steven Benmore, who was involved in a case where Skype was allowed:

Steven Benmor, a lawyer who represents Ms. Paiva’s estranged husband, Michael Corpening, said the Skype arrangement approved by Judge Murray threatens the integrity of testimony.

“The very nature of the right to trial is to allow a judge to see, hear and experience a witness’s demeanour so as to assess not only the answers but ‘how’ they are delivered,” Mr. Benmor said in an interview. “If demeanour were not important, we would have trials by affidavits and paper records.”

As lawyers, we have deep divisions on the use of technology within the traditional court process. We have large groups that are against innovations that would 'tweak' the court process, fearing a negative effect on the outcome of the court process.

However, in my view this type of debate, while heartfelt, is equivalent to rearranging the deck chairs on the Titanic.