In my spare time lately, I have been studying. My partner Patric deserves special recognition for handling the bulk of homestead related activities as I park myself in front of the computer each evening to delve into the specifics of Z scores, standard deviation, degrees of freedom, probability and regression analysis.
It is interesting and also quite challenging to be facing an exam with the practice question: “43.5% of students pass this certification exam. The department head is sending 12 people from your company to take the exam and says that if you all pass you will each receive a bonus trip to Hawaii. What is the probability that you will be travelling?”
Low, very, very low.
A working knowledge of statistics is a very useful item for your legal business toolbox. For example: Business question: Do we need another printer? A predictable answer based on applied statistics might look something like: What is the mean time to failure for the models of printers in this area, the probability of down time for all the printers in this corner of the office, the relationship between ‘missing’ print jobs and the number of people printing to one device.
If like me, you haven’t used applied statistics lately and you need a little help there are resources available. Your local public library probably has Statistics for Dummies or another readable primer. The dummies.com site offers some cheat sheets so that you can remind yourself of basic rules and formulas for business statistics, common statistics, and probability. I am usually just offended by the title of this series of books, but these tools are very handy.
“You need to return on a Wednesday at 9:00am or a Friday at 2:00pm.”
“Oh wait, sorry. You’re client’s last name begins with ‘G’. That’s a Tuesday matter.”
“But I’m back here this Monday…”
“Oops. Hang on. It’s a domestic. Thursdays at 10:00am. Definitely Thursday.”
The above is a pretty faithful recounting of nearly every day in set-date courts across the Greater Toronto Area (GTA) and, perhaps to a lesser extent, across Ontario. I don’t have a sufficient personal sample size to gauge whether the alphabet soup insanity that has infected my home province has spread its viral tentacles across the rest of the country but if it hasn’t, I advise counsel to begin work on the vaccine NOW for the plague is coming.
Earlier this month, just a day after his swearing in as Chief Justice of Ontario, Justice George Strathy remarked, “Having been a lawyer and a judge in this province for over 40 years, it strikes me that we have built a legal system that has become increasingly burdened by its own procedures, reaching a point that we have begun to impede the very justice we are striving to protect.”
Justice Strathy was sounding a call to action to stall the steady deterioration of access to justice in this province. There are a number of ways to skin this cat but with Ministry budgets in a perpetual state of belt-tightening, throwing more money at courts, crowns, cops and (if anyone remembers to save the table scraps) legal aid, only scratches the surface. The system must be proactive in holistically seeking streamlined simplicity at every stage in the litigation process. Strathy’s comments were intended as a broader indictment of the crushing costs imposed upon litigants in an increasingly process-laden system but if the courts are ever to get a handle on spiralling fees in the criminal law sphere, attention must be turned to the daily grind of the local set-date docket.
As it now stands, the date, timing and courthouse location of any given case depends on a dizzying array of factors. Is the Crown Federal or Provincial? Is this a ‘special prosecution’ such as domestic violence, impaired driving, guns & gangs? (I’m still waiting for the creation of a court dedicated to witchcraft prosecutions – in an era of Harry Potter fame that day is surely not far off.) Is the client a youth or an adult? What police division made the arrest? Is the case in the Superior Court, Court of Justice, traffic court, or Provincial Offences court? Is the client appearing in-person or by video link from a local jail? Is the attendance for a guilty plea, crown pre-trial, judicial pre-trial? And, most hilariously but no less important to the magic of scheduling, is the letter that begins your clients’ last name.
Defence lawyers spend so much time juggling the calendaring atrocity of Ontario’s courts, it’s a marvel anyone has any time left to actually address trial issues. The extent of the problem has grown so overwhelming that I predict, only half-jokingly, the defence lawyer of the future will not sub specialize as a ‘drinking and driving’ or ‘homicide’ lawyer but rather as a lawyer for all clients whose last names begin with the letter ‘Q’. It’s about the only way to ensure that you can make it to court for a given case without being quadruple booked.
The road to hell is paved with good intentions and so it is with the path that brought us to alpha-numeric justice. As the volume of cases in the system grew and the quantity of disclosure ballooned, Crown offices were struggling to ensure that the administrative requirements of organizing such cases kept pace with constitutional demands for speedy trials. Thus was “Vertical File Management” (VFM) born. The idea had merit: ensure that Crown attorneys had more hands-on intimate knowledge of their briefs by sub-dividing the deluge of cases flowing through the system into smaller more manageable streams. Each Crown office took a different approach to implementing VFM case management with some opting for alphabetical sub-categories, while others used the offence type or police division as the dividing line.
As VFM was touted ‘coming soon to a courthouse near you’ defence lawyers began to squirm. Promises were made and assurances given that the new system would be flexible and respectful of lawyers who race from courthouse to courthouse juggling a handful of clients on a daily basis. While lip service was paid to accommodation and flexibility, VFM quickly devolved into a rigid scheduling nightmare for busy defence lawyers. Today, a lawyer can reasonably be expected to race between three or more courthouses on opposite ends of a traffic-choked city struggling to meet seemingly arbitrary times and dates just to provide a sixty second update on a case as it crawls through the system. Woe be to the lawyer who needs to set a trial date or pre-trial where he or she may be required to navigate a complicated ballet of courtrooms, trial coordinators, and police leave dates while waiting interminable hours for someone to carry the Crown file thirty feet down the hall (defence lawyers being deemed too unsavory and inherently dishonest to handle this lofty task themselves).
Who pays the price for this colossal inefficiency? It’s not the Crown civil servants whose offices are housed in the very same courthouse within a hallway or two of any given courtroom in which they might be required. It’s the defence lawyers who work on increasingly razor thin margins in the criminal law sphere, and their vulnerable cash-strapped clients.
But there is a ray of light at the end of this twisted tunnel. The words of Chief Justice Strathy, themselves echoes of other senior justice officials, are beginning to resonate. There is increasing recognition that the system – and not just its individual participants – shares the responsibility of encouraging and ensuring access to justice. In a digitally connected, smart-phone enabled internet era, there are early signs that the necessity of physically attending monthly set-dates could become as quaint as reading a pulp newspaper while getting your shoes shined down by the old five-and-dime. The time has come for process to take a back seat to the real end-game of our court system – justice.
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.
With DSLRs, it has become very easy to fill your SD or memory card to capacity. Many of us have will have found ourselves deleting pictures when we run out of space. Doing this in the middle of a photo shoot is fine. However, if you are taking a bunch of pictures off a memory card, remember to reformat the card….
Look for Webinar Opportunities
An event reminder by the Canadian Association of Law Libraries about the Substantive Law Webinar Series gets a Hat Tip for providing Today’s Research Tip. The Tip is to seek out opportunities to learn things via webinar. Plenty of associations and organizations, including some law firms, are offering webinars on useful topics that will make legal research in a new or unfamiliar area a little bit easier….
Lawyers and Pricing – Part 5
In the four prior posts in this series, we looked at how price is just one of seven components of the legal marketing mix. Part 2 discussed the product mix – and how changing your product mix may result in a great match between your services and the needs of the clients. Part 3 looked at who was on your team and how they deliver your services – and how this can have a big distinguishing effect on how clients view your services against the competition. …
In an unusual case, Justice Nordheimer of the Superior Court of Justice has overturned the result of a youth soccer match.
The Cobras defeated the Strikers 2 – 1 in the semi-final match of the Ontario Cup in the Under 16 Boys Tier 1 Division.
After the match, the Strikers alleged that the Cobras had improperly used six players as “call-ups”. The Ontario Soccer Association (“OSA”) sent notice of the Protest to the Cobras.
A few days later the Cobras received another email from the OSA raising a new issue regarding the semi-final match. In particular, the OSA was raising the eligibility issue of another one of the Cobras’ players, Tristan Borges.
As it turns out, all of the Cobras’ players, including Tristan, were properly rostered for the semi-final match. The alleged improprieties resulted from administrative errors made within the Soccer Association. All of this was made known to the OSA before it rendered its decision on the Protest.
Notwithstanding that the Cobras had done nothing wrong, the OSA, somehow, reached the conclusion that Tristan had been ineligible to play in the semi-final match. They awarded the match to the Strikers.
While the Cobras were in the process of trying to appeal the OSA’s decision, the Strikers went on to win the Ontario Cup final, thus advancing to the National Cup.
When the Cobras were advised that there was no avenue of appeal, they proceeded to the Superior Court for judicial review of the OSA’s decision.
Justice Nordheimer’s decision contains a lengthy discussion of the Superior Court’s jurisdiction to review the OSA’s decision. The test, as set out by the Ontario Court of Appeal in Setia v. Appleby College, can be found here.
After holding that the Superior Court had jurisdiction to review the matter, and finding that the OSA “reached a conclusion that finds no foundation in the evidence that was before it” and that the OSA “has acted arbitrarily, and unfairly, changed the result of a match and has done so for no apparently legitimate reason”, Justice Nordheimer restored the 2-1 semi-final verdict in favour of the Cobras.
Since the final had already been played, and won, by the Strikers, Justice Nordheimer awarded the Ontario Cup championship and a berth in the National Cup to the Cobras, noting that the Cobras “properly stand in the shoes of the Strikers”.
“Diversity” describes the characteristics of a group. When we examine how diversity influences the profession as a whole, it’s easy to lose sight of the experience of being an individual lawyer, with specific identity characteristics, practising law in Ontario. While cultural sensitivity benefits all lawyers, what is it like to practice law when, at least with respect to some aspect of your identity, you are in the minority?
We posed that question to the four lawyers profiled in the in the newest issue of LAWPRO Magazine. While their stories are very different, all four agreed that success depends on building meaningful relationships – whether with mentors, colleagues, or the young lawyers who will eventually follow in your footsteps.
On Saturday The Honourable Louise Arbour‘s star was unveiled on Canada’s Walk of Fame along with those of the other inductees The Band, Jeff Healey, Rachel McAdams, Ryan Reynolds and Hayley Wickenheiser.
— Canadas Walk of Fame (@CWOFame) October 20, 2014
From her bio included with her webpage:
The Honourable Louise Arbour is currently a jurist in residence at Borden Ladner Gervais providing strategic advice to lawyers of the Litigation Group, in particular on issues pertaining to international disputes. Her great legal mind, the wealth of her judicial experience and her in-depth knowledge of major international issues has made her one of the most influencial legal minds in both Canada and abroad.
She sat as a justice of the Supreme Court of Canada from 1999 to 2004, on the Court of Appeal for Ontario and the Supreme Court of Ontario. She has held senior positions at the United Nations, including that of High Commissioner for Human Rights, and is a member of the Global Commission on Drug Policy and of the International Commission Against the Death Penalty. She is also a member of the Advisory Board of The Coalition for the International Criminal Court. She chaired an inquiry commission that investigated certain events at the Prison for Women in Kingston, Ontario, and has also served as a member of the Global Commission on Elections, Democracy and Security.
Justice Arbour has received numerous honorary doctorates and awards. In particular, she has been a Companion of the Order of Canada since 2007 and a Grand Officer of the Ordre national du Québec since 2009, as well as a Commander of the Légion d’honneur, and has been decorated by both Spain and Colombia.
The Walk of Fame tribute show will be televised on Friday, December 19. See the press release for more details.
It’s Open Access Week this week, an opportunity to highlight efforts to promote, facilitate and otherwise support access to cultural, scientific and legal information. If you’re on campus at York University this Friday afternoon Osgoode Hall Law School professor Carys Craig will introduce the screening of “The Internet’s Own Boy” a presentation of the York University Libraries Scholarly Communication Initiative. If you can’t be there Friday I encourage you to watch this wonderful telling of Aaron Swartz’s life story which is also openly available on the Internet Archive.
It’s a sad and tragic story which begins in many ways when Swartz attempts to help with Carl Malamud’s call to liberate U.S. federal court documents and other legal papers from the PACER (Public Access to Court Electronic Records) database.
PACER claims to provide “public access to court information,” and it does, but as Sarah Glassmeyer wrote earlier this year the ‘P’ in PACER doesn’t stand for “public” as in “public library” where “all the information contained within it was free to use”; it stands for “public” as in “public records” meaning “everyone is free to look at them.” So you can look, but because the U.S. Congress “directed the Judiciary to fund the initiative through user fees,” looking at these public records currently costs users 10 cents per page viewed.
Now 10 cents per page doesn’t seem like much, but as John Schwartz writes in a 2009 New York Times article:
“… Pacer adds up, when court records can run to thousands of pages. Fees get plowed back to the courts to finance technology, but the system runs a budget surplus of some $150 million, according to recent court reports.”
These access charges have been improved somewhat since that article was written. In 2011 the fee structure to access documents on PACER was changed so that users viewing less than 150 pages in a given quarter would not be charged a fee and a three dollar cap for “electronic access to any single document” was also introduced. Regardless, it makes you realize just how lucky we are to have CanLII working to provide us with such a fantastic and open service to our Canadian legal documents.
I’ve also been fortunate to work with Louis Mirando and Daniel Demanuele over the past year or so on a project to develop and implement the Osgoode Digital Commons. Officially launched on October 7th as part of the the 125th anniversary celebration of the founding of the Osgoode Hall Law School, the Osgoode Digital Commons,
“… captures, preserves and makes available to the global public the intellectual output of the law school, including faculty research, scholarship and publications; journals and research centres; selected records and archives; and digital initiatives from the Osgoode Hall Law School Library.”
This so far includes the complete runs of 4 Osgoode journals, the Osgoode research paper series, and a collection of videos documenting many special lectures and events that have taken place at Osgoode. We are currently in the process of acquiring and making available historical faculty scholarship published in many non-Osgoode publications.
So far the Commons has shown remarkable success with, at the time of this post, over 220,000 full-text downloads of Osgoode scholarship worldwide. It’s fascinating to watch this number grow on the real-time readership map found on the Osgoode Digital Commons main page that shows where in the world individual documents are being accessed and downloaded.
In the Guerilla Open Access Manifesto Aaron Swartz wrote:
“Those with access to these resources — students, librarians, scientists — you have been given a privilege. You get to feed at this banquet of knowledge while the rest of the world is locked out. But you need not — indeed, morally, you cannot — keep this privilege for yourselves. You have a duty to share it with the world.”
Let’s continue to fight for open access to our public information and remember the pioneering efforts of Aaron Swartz.
A distinguished Ontario litigator I know has made it a personal rule never to cite a case that was reported before the year he was called to the bar.
The British Foreign Secretary Phillip Hammond might want to enquire whether any of the lawyers he likes to retain harbour any such sentiments. Last week Mr Hammond appeared to entertain the thought of laying charges of treason against Britons who go to fight in Syria and Iraq.
The law of treason dates back to an English statute of 1351.
Guy Fawkes and his co-conspirators in the gun powder plot were convicted of it in 1605. They were hung drawn and quartered.
The last person prosecuted for treason in the U.K. was Lord Haw Haw in 1946 for his Nazi propaganda broadcasts. He got off rather more lightly. He was merely hanged.
Cabinet ministers discussed prosecuting IRA bombers for treason in the 1960’s. There were calls for treason charges following the London bombings in 2005. There were no prosecutions in either case.
Among the discussions now circulating on how to deal with British jihadists, there appear to be 3 main reasons why the existing treason law must not be resorted to.
One is the political fear that treason prosecutions will create martyrs, particularly if the death penalty were re-introduced for it, as some are demanding. A second is that the archaic language and medieval constructs in the 14th Century statute (which addresses harm to the king, his wife and eldest son and daughter, but not other members of the royal household) make it impossible to interpret in the 21 st Century. Third, the statute would have to be interpreted in conformity with the 1998 Human Rights Act.
The consensus seems to be that a new law is needed. Not surprising. Not easy either.
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
Slater Vecchio Connected
Are Fines for Distracted Driving in BC too Low?
Immediate communication has become the norm and many feel obligated to respond to texts and e-mails while driving. Attorney General Suzanne Anton says distracted drivers aren’t taking current penalties serious enough. “I am concerned that distracted driving is the second-largest contributing factor in motor-vehicle fatalities on BC roads,” said Anton. Effective October 20, the number of demerit points associated with distracted driving will increase from zero to three. The existing fine of $167 will stay the same. Is this enough to deter drivers from using their devices while driving?…
“The lawyer should be knowledgeable about title insurance and discuss with the client the advantages, conditions, and limitations of the various options and coverages generally available to the client through title insurance,” states Rule 2.02(10) of the Rules of Professional Conduct. This obligation was brought home in a recent malpractice case where the lawyer did not properly address the protection title insurance would afford the client and did not fully investigate the issue at hand….
On 26 June 2014, the Supreme Court of Canada (“SCC”) agreed to hear an appeal of Commission Scolaire Francophone du Yukon v Attorney General of the Yukon Territory, 2014 YKCA 4 [CS Francophone]. The case concerns a dispute over the control and management of the Territory’s French language education system and is the first time in over a decade that the SCC will render a decision on the scope of minority language education rights in English Canada….
En ce mois de la sensibilisation à la cyber sécurité aux États-Unis, Larry Magid, l’un des collaborateurs de Forbes Tech , rappelle à tous les internautes l’importance de l’«hygiène de sécurité en ligne» puisqu’elle n’affecte pas que les individus eux-mêmes, mais toute la communauté numérique. M. Magid souhaite ainsi souligner l’importance de porter attention aux situations conduisant à un état de vulnérabilité, laquelle peut mener à la contamination de nos ordinateurs par certains virus et logiciels malicieux (ex : zombies et bots), voire même, à l’instar de toute maladie contagieuse, de devenir à notre tour, porteur et propagateur. …
En matière de reconnaissance et exécution des décisions étrangères, l’article 3155 (4) C.c.Q. prévoit que ne sera pas reconnu le jugement étranger lorsqu’un “litige entre les mêmes parties, fondé sur les mêmes faits et ayant le même objet a donné lieu au Québec à une décision passée ou non en force de chose jugée, ou est pendant devant une autorité québécoise, première saisie [...]“. Dans Lynch Suder Logan c. Wilson Logan (2014 QCCS 4765), l’Honorable juge Catherine La Rosa souligne que cette exception ne peut trouver application que si les tribunaux québécois ont véritablement juridiction pour entendre les procédures déposées devant eux….
*Randomness here is created by Random.org and its list randomizing function.
In November of 2011, I wrote a column on the value of risk management for law firms and put forward the proposition that “[d]espite th[e] considerable grounding in working with risk and counseling clients on methods to minimize and avoid risk, seemingly very few law firms in Canada actually engage in any sort of structured or coordinated risk management activities for their own organizations.” I was recently contacted by a reporter for a legal industry publication to discuss risk management for law firms and thus had the opportunity to reflect on my original statement. When asked a question regarding the growth of risk management in recent years and the adoption of risk management programs by law firms I was reluctantly forced to report the fact that while risk management programs have increased in popularity and use amongst organizations in Canada in general, their adoption in the legal services sector has remained rare.
In an attempt to continue to spark interest in the legal sector in the field of risk management (and in recognition of recent shakeups such as the failure of a significant national law firm), I thought it was time to revisit the topic of risk management for law firms and set out some examples of practical steps that law firms can take in regards to risk. As a starting point for the discussion, it can be generally observed that organizations fall on a spectrum of awareness regarding risk management. At one end of the spectrum is a reactive organization that has no formalized risk management practices and is applying an ad hoc approach to dealing with unexpected events. In the middle of the spectrum is an organization that is aware of risk management and perhaps integrates some level of risk management practice into their everyday business decisions. At the far end of the spectrum is an organization that is addressing risk in a strategic manner through the adoption of a comprehensive risk management program that is addressed in their annual strategic planning process and is integrated into the everyday functioning of the firm.
While there are many different approaches to risk management, a common approach is to follow a step-by-step procedure that begins with establishing the context for the risk management program and ends with the application of what is known as risk treatment. The beginning of any risk management program should entail a consideration of various foundational considerations including establishing baseline definitions of risk for the organization and making clear the goals of the program. The next step in the process is a risk assessment that entails the identification and description of potential risks as well as their evaluation. This is perhaps the most important and time-consuming step. The final step in a basic risk management process includes the development of a plan for the treatment of the priority risks that have been identified. Common treatments include transferring the risk (for example through insurance), terminating the risk (by ceasing the risk generating activity), treating the risk (by engaging in risk reduction activity) or terminating the risk (by ceasing the risk generating activity altogether). While steps above are a considerable simplification of the risk management process, they nonetheless capture the common baseline approach to the subject.
In order to make the above discussion less abstract, it is useful to examine a few of the main categories of risk that may be applicable to an average law firm in Canada and that would be considered in the risk assessment step set out above. A sampling of four of these categories is as follows:
- Economic – Economic risks are those that arise due to changing economic conditions. An example of an economic risk that had a significant effect on law firms throughout Canada was the crash in the global economy that occurred in 2009.
- Regulatory – Regulatory risks are those that are associated with new or changing laws and regulations. An example of regulatory risk was the closing of the tax loophole regarding income trusts that occurred in 2006 that significantly altered many lawyers practices who focused in this area.
- Environmental – Environmental risks are those that are faced due to uncommon, adverse or extreme environmental conditions. An example of an environmental risk that negatively impacted the operations of many law firms in Canada was the ice storm of 1998 in Quebec and Ontario.
- Human Resources – Human Resources risks are those that arise from the management of human resource functions within an organization. The most pressing example of a human resource risk in the legal marketplace today is the failure of many law firms to adequately plan for succession.
As I stated in my original column in 2011 “..risk management has grown to become a multi faceted management discipline that is an important component of the strategic management activities of organizations both big and small.” Unfortunately, in my experience, while lawyers play the role of risk managers for their clients, the legal services industry itself has been slow to adopt formal risk management processes. While the brief comments above only scratch the surface of this complex discipline, it is my hope that they spur some readers on to research the issue further and consider the application of risk management activities to their law firms.