The academic year ended a few weeks ago and as I wrote my regular farewell note to the finalists, I started to muse on the information related facts I hope they carry with them into their academic, professional and online lives post Oxford.
Here is a list I made in my head. I have added hints/links to some points that might be useful for SLAW readers. If you have other golden rules to add to this list, please do. BTW, I use the term ‘Wexis’ to denote commercial legal databases, and not to promote one over another!
- Sometimes there just is no relevant case. The answer can be NO.
- Not everything is on the internet and, amazingly, not all cases are available online.
- Not all books have been digitised (yet…)
- Lots of online legal resources are not free.
- The firm you go to might not subscribe to many commercial resources such as the Wexises; know where to find free online resources, eg in LibGuides
- Google is not the alpha and omega of searching; Google web search does not search everything it has in its database. It has two indexes: main, default index and the supplemental index which comes into play if you have too few results. It changes the algorithms regularly; remember that Google sells advertising space! Look at other search engines like Duck Duck Go, or some of those listed here, such as Bing and Ask.
- Sometimes a book is quicker and easier than the web –for example, a Digest, organised into legal topics by intelligent and knowledgeable humans is often an easier way to find key cases on point than any Wexis search.
- Citators (eg, US , Canadian, Australian , UK examples) are a good way of tracking history of cases, but they won’t tell you if subsequent legislation has invalidated a judgment. Sometimes you have to look beyond the obvious.
- The red flag/green flag for good and bad law on sources such as Wexis is not always right – you actually need to check it out yourself!
- Facebook and Twitter are not private musings; those graduate recruitment folk know how to use them to find out about you. Articles such as this explain this more fully.
- Privacy in searching can be achieved. You can use Google Incognito and not leave a crumb trail of all your searches which can then be mined for advertisers via clever algorithms. You can ‘unpersonalise’ a search. Using the following commands in your browser removes past search and browse history:Chrome – New Incognito window Ctrl+Shift+N
FireFox – Ctrl+Shift+P
Internet Explorer – Ctrl+Shift+P
Opera – Ctrl+Shift+NA good summary of these options, with a video, is here
- There is a hidden web – and not all of it is nasty; eg, any paid for databases are part of the hidden web, because they are not freely accessible.
- Sometimes you just need to deconstruct a section of an Act manually, because the online version can’t go always back to the version at a point in time that you need.
- Official government websites disappear when new governments come to power, and even non-official but useful sites can be taken down with no rhyme nor reason.
- Website are not always what they seem to be – check validity and authority
- The ECJ ‘right to be forgotten’ ruling does not remove information. It just removes links to information (if implemented by the search engines when people appeal)
- Judges expect lawyers to have done the research – see Mary Whistner’s article from 2004 : “Cases in which judges point out weaknesses in lawyers’ research and writing provide vivid examples of the “real-world” impact of lawyering skills (or the lack thereof).”
- Librarians know shortcuts and can save you hours of frustration. If you are lucky enough to have one in your workplace, get to know her/him!
These may all seem common sense to SLAW readers, but it does not hurt to revisit and reinforce that the warning bells which apply to us in our ordinary lives need to be front of mind even more when dealing with the interests of clients.
Ah— ah— ah— achoo!
That’s how we sneeze. (Or fnese, as old English once had it, back when we had “fn” as an initial consonant cluster.)
If we were Polish, however, we’d sneeze “a-psik!” and if Japanese then “hakushon!” And, curious fact, if we were deaf we’d sneeze with no sound at all, revealing that the loud part of this reflex is not reflexive at all but learned.
Reflexes. Wikipedia lists nearly forty of them. They’re helpful short circuits in our neural system, sending signals to the spinal cord, whence action signals are relayed back in what’s known as the reflex arc, bypassing the time-consuming trek up to the brain and back down again. So we don’t decide to sneeze: it just happens to us. Though some of us sometimes can stop the reflex if we sense it approaching; my dad the doctor claimed that you could do this by pushing on the tip of your nose, where there’s a branch of the trigeminal nerve, one that’s implicated in the sneezing reflex.
I raise this last point because we all may need to learn how to frustrate a sneeze — at least when it’s about to happen in public. My thinking goes like this: once, not that long ago, spitting in public was acceptable and, indeed, common. But somewhere in the decades around the turn of the nineteenth century, spitting in public began to be regarded as socially unacceptable, and after the terrible influenza epidemic of 1918 it generally died out as a social practice. Indeed, ever since bourgeois Dutch wives made men take their mucky boots off at the door, we’ve been on a slow roll towards ever more social . . . hygiene, I suppose — cleanliness, certainly — as propriety increasingly forbids the public production of bodily functions and fluids. Public urination is long gone; spitting a thing of the past; and think of the fact that in one or two generations the use of daily showers and anti-perspirants have all but eliminated the (disapproved of) odour of the other from public congress.
Already there are campaigns encouraging us to sneeze into the crook of our elbows, if sneeze we must in public. And, indeed, a sneeze is a powerful distributor of droplets, each of which might contain germs. So our concern with the presentation of self in everyday life now has a strong germ phobia attached to it, something that’s actually led to serious suggestions we stop shaking each others’ hands and adopt the fist bump form of greeting instead. The elbow smothering of a sneeze might soon be insufficient for the new fearful, which is why I suggest you practice dampening that reflex.
This will be tricky and might serve to distinguish the adept from the ordinary person, tricky because it would be wrong to try to stop a sneeze that’s already in full swing: blocking the nose or mouth might harm your sinuses or eardrums. No, you’ll need to learn to control the action of your parasympathetic nervous system. Pressing the tip of your nose may work for you, as my dad recommended. Other techniques include pressing your tongue against the roof of your mouth, pressing the bit of the upper jaw just below your nose, or squeezing the little indentation in your forehead just above your nose. Best of all, of course, would be the ability to stop a sneeze simply by willing it to stop, demonstrating a form of tantric control over the body that will be bound to identify the superior citizen.
British legal publisher Justis is offering a free download of a document entitled Court Structures of the Common Law World(free registration required):
“Understanding how and why different courts operate can be a time-consuming, headache-inducing task.”
“It doesn’t have to be, though. We’ve done the legal legwork for you and crammed it all into an easy-to-read 59-page eBook, Court Structures of the Common Law World.”
“Download your free copy and discover:
- The judicial hierarchy of 20 jurisdictions, including the UK, Ireland, Australia, Canada and Jamaica – all illustrated in handy diagrams
- The historical and political backgrounds to these case studies
- How key cases have laid the foundations for constitutional change”
Back in March, Tim Berners-Lee — who invented the world wide web, no less — issued a call to citizens in different countries to pressure their governments to produce a bill of rights to ensure net neutrality and protect the rights of web users worldwide.
It’s a far cry from the heady days, not so long ago, of cyber-libertarians rallying around A Declaration of the Independence of Cyberspace. But then again, we live in different times. The growing evidence of abuses committed by intelligence services (south of the border obviously, but here at home as well) are only among the most obvious concerns about privacy violations.
True, there is pushback against state violations of privacy rights. In a unanimous decision handed down in June in Riley v. California, the Supreme Court of the United States ruled that police must first obtain a warrant to search the contents of someone’s cell phone in all but the most extraordinary circumstances.
Similarly in Canada, our own top court in R. V. Spencer declared that police who want access to the personal information associated with an IP address must first get a court warrant before approaching the internet service provider.
So if our courts have our backs when it comes to privacy, we can count on them to enforce our rights… Right?
Trouble is, we need not worry only about the state. Section 8 of the Charter may prohibit unreasonable search and seizure committed by law enforcement. But how are the activities of private actors – Facebook, Google and Amazon – shaping the future of privacy and free expression? These internet giants are making a mint off collecting our personal information. And though privacy watchdogs regularly give them a hard time – at times the courts have a hand in it too – there is growing impatience with insufficient oversight over their data-mining techniques. No doubt Mark Zuckerberg has found religion on privacy, now that he seems to be changing his tune, but let’s call it what it is: a pivot that is neatly tailored to a self-regulated business model.
So the question remains: Do we need a bill of that limits the gathering and use of data on internet users, along the lines of what Brazil enacted in April? And given the cross-border nature of internet traffic, is there any value in adopting a shared document of principle that would serve as an international standard?
Obviously, figuring out how a digital bill of rights would work on a global scale is a real challenge. What provisions would it include? What would make it robust enough to work? How would we give it teeth? Is it even possible to have a global consensus on an internet bill of rights, given our diverse cultural sensitivities? And how would opposition to state surveillance square with enforcement of a bill of rights?
At the upcoming CBA Canadian Legal Conference in St. John’s, National Magazine is organizing a picnic lunch on the topic. We’ve invited five experts (Yves Boisvert, Patricia Kosseim, John Hoben, Norbert Griffin and Mandy Woodland) to spend six minutes each sharing their perspectives on these questions. A moderated discussion with audience participation will follow. If any of you are there, please drop in on us.
And if you’re not, please share your thoughts and questions.
On July 25, 2014, the Supreme Court of Canada released its decision in Quebec (Commission des normes du travail) v. Asphalte Desjardins inc., on the issue of whether an employer who receives a notice of termination from an employee can terminate the contract of employment before the notice period expires without in turn having to give notice of termination or pay in lieu of such notice.
Facts of the case and lower court decisions
In 1994, Daniel Guay started working with Asphalte Desjardins, a pavement company. On February 15, 2008, Guay submitted a resignation letter to his employer announcing that he would leave his employment on March 7, 2008. Guay also indicated he was joining a direct competitor that was offering better pay. Guay provided three weeks’ notice to finalize certain files and prepare an overview of ongoing projects for his successor at Asphalte Desjardins. On February 18, 2008, the company unsuccessfully attempted to convince Guay to change his mind and stay with the company. The next day, it decided to immediately end his employment.
The Quebec Labour Standards Commission (Commission des Normes du Travail) sought three weeks’ of pay in lieu of notice on behalf of Guay pursuant to the Act Respecting Labour Standards (Act) and the resignation letter. It also claimed the monetary value of his annual leave (vacation). The first judge granted the action in favour of the employee. However, Asphalte Desjardins appealed the decision before the Court of Appeal.
Back in April 2013, the Quebec Court of Appeal (2013 QCCA 484) decided the employer acted within its rights by waiving the resignation notice given by its employee pursuant to section 2091 of the Civil Code of Quebec (CCQ). According to the Court, the effect of the employer’s decision to waive such notice is the immediate ending of the employment relationship without any requirement to pay to the resigning employee a termination notice or the salary to which he or she would have been entitled for the remainder of the notice period.
Justice Marie-France Bich decided such a waiver does not correspond to a termination of the employment relationship by the employer as contemplated by sections 82 and 83 of the Act. The employer therefore does not have to compensate the resigning employee.
One of the three judges, Pelletier, did not agree with the approach, arguing that an unscrupulous employer might simply reject an employee’s notice of resignation to avoid the obligation to pay any compensation to the employee.
Supreme Court of Canada decision
On July 25, 2014, the Supreme Court reversed the judgment of the Court of Appeal of Quebec, making it clear that when an employee resigns and gives working notice in accordance with article 2091 of the CCQ, the employment contract is not terminated. Section 82 of the Act provides that a contract of employment for an indeterminate term is not terminated at the time notice is given. The contractual relationship in its entirety continues to exist until the date specified in the notice given by the employee or the employer.
As a result, when Asphalte Desjardins terminated the employee during the notice period, it unilaterally terminated the employment contract without giving sufficient notice of termination, thereby defaulting on its obligation under article 2091 and triggering ss. 82 and 83 of the Act.
As stated by Supreme Court Justice Wagner, J.:
“This means that even after one of the parties to a contract of employment for an indeterminate term gives the other party notice of termination, both parties must continue to perform their obligations under the contract until the notice period expires. This includes the obligation to give notice of termination set out in art. 2091 CCQ, which the other party must meet if he or she wishes in turn to terminate the contract before the notice given by the first expires.”
As a result, the Commission des Normes du Travail can claim on Mr. Guay’s behalf compensation in lieu of notice of termination equivalent to three weeks’ salary, together with the amount due in respect of his vacation, in accordance with the total amount determined by the trial judge.
The gist of the Supreme Court’s decision is that notice of resignation is a protection offered to the employer, and, lacking just cause, the employer may not waive the protection without compensating the employee. The dissenting Justice Pelletier of the Quebec Appeal Court is right: granting employers the right to waive notice of resignation leads to inequitable situations where employees risk losing their salary for the duration of the notice period merely because they wished to fulfil their duty to give reasonable notice of resignation to their employer.
As mentioned in a previous post, a few weeks ago, the Montreal Cyberjustice Laboratory hosted a summer program aimed at demystifying the impacts of technology on conflict resolution in and out of the courtroom. Experts in the field shared their knowledge with approximately fifty students and professionals, all of who were hoping to get ahead of the curb as technology slowly creeps its way into courthouses. As researchers, we found great interest in the numerous questions raised by the students, as they awakened us to new topics that could be explored, as well as made us realize that some of the misconceptions about how technology will affect the legal system are not misconceptions at all, but rather a refusal to make the system better lest it make us lawyers irrelevant.
One of the seminars given during the weeklong class dealt with online dispute resolution and its advantages for solving high-volume, low-value cases or, as we like to refer to them, low-intensity cases. Almost instinctively, one of the students asked: won’t ODR affect lawyers’ possibility to bill and, therefore, their livelihoods? When asked to expand on his question he explained that he saw ODR as a menace to our bottom line and, therefore, as an evil that should be quashed (we’re obviously paraphrasing). This very quickly generated a debate among students as to the role of legal professionals within the legal system. This debate basically opposed those who believe that access to justice is the only true goal (and that if this is gained at the expense of lawyers, so be it), and those who cannot imagine a world without lawyers.
Obviously, we legal professionals have a vested interest in maintaining the status quo since it pays for our mortgages, but change doesn’t necessarily mean that lawyers will go the way of the dodo, but rather that we will need to adapt our skill set to offer legal services in a different manner. This is what those in the legal community who oppose ODR for monetary reasons don’t seem to understand; ODR does not threaten their bottom line, it offers them new possibilities for income.
Case in point: the Quebec Department of Justice’s pilot project for consumer mediation.
As most readers know, the small claims division of the Cour du Québec hears cases where the amount in dispute is no more than $7 000 (section 953 of the Code). Because the amount is so low, parties cannot be represented by counsel. This is not to say that individuals cannot consult a legal professional before going to trial (although statistics show few of them do), just that they have to handle their pleadings on their own. In other words, exceptions aside, lawyers are simply not allowed into the courtroom.
Now, with the advent of the new Code of Civil Procedure, which will come into effect later this year, the maximum amount one can sue for in front of the small claims division will go up to $15 000 (according to section 536 of the new Code). This implies that, although history doesn’t necessarily give credence to such a claim, the number of cases in front of the Cour du Québec’s civil chamber (where lawyers are allowed) should diminish, while the amount of cases in the small claim division should rise. The reason we state that history doesn’t necessarily give credence to this claim is that, as exposed by our colleague Pierre-Claude Lafond, since the last time ceilings were raised (in 2002, small claims caps went from $3 000 to $7 000), the number of cases brought forth before the small claims division has steadily declined.
That being said, this doesn’t change the fact that lawyers will no longer be able to plead in cases where the value in play is between $7 000 and $15 000. In other words, the new Code is technically taking money out of lawyers’ pockets (notwithstanding the fact that, in many of these cases, possible clients are often informed that it would be better to just bring their claim down to $7 000 and cut their losses since lawyer fees alone would eat up more than the extra $8 000 they stand to make).
Enter sections 28 and 830 of the new Code:
28. After considering the effects of the project on the rights of individuals and obtaining the agreement of the Chief Justice of Québec or the Chief Justice of the Superior Court or the Chief Judge of the Court of Québec, according to their jurisdiction, and after consulting the Barreau du Québec and, if applicable, the Chambre des notaires du Québec or the Chambre des huissiers de justice du Québec, the Minister of Justice, by regulation, may modify a rule of procedure, or introduce a new one, for a specified time not exceeding three years, for the purposes of a pilot project conducted in specified judicial districts.
830. The provisions of this Act come into force on the date or dates to be set by the Government, except article 28, which comes into force on the date of assent to this Act, in particular to allow the establishment of a pilot project on mandatory mediation for the recovery of small claims arising out of consumer contracts. [emphasis added]
This mandatory mediation for consumer contracts aims at decreasing caseloads for small claims division judges in order to offset the perceived hike of cases brought forth by raising the ceiling to $15 000, all the while increasing access to the courts for litigants, seeing as decreased caseloads should translate into decreased waiting times. It also has the side effect of increasing the demand for court appointed mediators, most of which are lawyers…
Therefore, this is a case where lawyers should embrace ADR in general and ODR in particular (the pilot project is expected to have an ODR component) since they are “losing” access to income they rarely went after (cases where the amount in play was less than $15 000) while gaining a recurring source of revenue in offering mediation services. Maybe the pilot project won’t have the desired outcome, but with the possibility for a lower caseload for judges, more access to justice for litigants, and new income sources for lawyers, why would we not root for it to succeed? In other words, ODR isn’t the enemy; it’s part of a series of tools at our disposal to modernize our profession and, therefore, stay relevant in a changing market.
Apple CEO Tim Cook recently said that 80-90% of his computer time is spent on an iPad.
This comment lead tech journalist Mike Elgan to wonder: “Could 80 percent of the corporate workforce do 100 percent of their work on a tablet?”
His article sets out arguments for and against, but basically concludes that tablets would be sufficient for many.
For me personally, for what I need it for, while you would have to pry my tablet out of my hands, it is not adequate to replace my PC. For too many things it is just not quite good enough, or efficient enough. But depending on what one’s role is, a tablet may indeed be sufficient.
What do readers think? Is anyone using a tablet while their PC gathers dust?
The World’s Columbian Exposition was an influential social and cultural event (“The Devil in the White City” from Erik Larson brilliantly communicates the vibrancy of the preparation of the Exposition). On October 9, 1893, the day designated as Chicago Day, the fair set a world record for outdoor event attendance, drawing 716,881 people to the fair. Electricity occupied a very special place in the White City. An entire building was devoted to electrical exhibits. Electricity powered everything: fountains, a moveable sidewalk, elevators, automatic door openers, and even electric cigar lighters. GE, Westinghouse, Thomas Edison, Brush, Western Electric were showcasing various inventions and technologies. Electricity was shown to provide fun and ease of living, and the Director of Electricity, John P. Barrett, proudly proclaimed that the Exposition “brought electricity to the people in the light of a servant not as an awful master.”
Around those times, large companies owned their own power plants under the responsibility of the Director of Electricity. Later on electricity became a commodity and stopped being managed in the executive suite. Today, only occasionally, during winter time power outages, we spend a quick thought on what life would be without electricity and that thought is quickly gone, knowing that power will be on quite soon.
Back to our turf, in 2002 at the Law via the Internet conference in Montreal the LII movement adopted the Montreal Declaration on Free Access to Law. Even though it had started in the mid-nineties, free online law still generated a lot of amazement (with a mix of reasonable skepticism): All cases from all courts and tribunals would be searchable online without a fee? With judicial history and noteup features? With hyperlinks on parallel citations? Statutes with point-in-time capabilities? Really? Wow!
Today in Canada free access to law is a commodity (no more “wow!”) and it is a great thing that lawyers only think of the importance of free law on the rare occasions when the CanLII site blinks. A dozen tweets and a couple of seconds later everything is back to normal. All this means that the walk to freeing the law has successfully reached its destination. But there is more to come.
This introduction resembles a Georgian toast. And as such, it’s followed by an invitation to join the free access to law artisans at the 2014 Law via the internet conference. The 21 topics ranging from open data platforms and emerging trends of access to legal information to transforming legal process through technology show that there is a lot going on in the field of access to legal information in both developing and developed countries.
This will be the second time that the Law via the internet conference visits South Africa. The previous conference held in Durban in 2009 was a top notch event which attracted a large attendance and outstanding speakers. Getting involved at the international level and collaborating with other countries to move forward the access to law is both generous and selfish, probably more the latter than the former. One always learns from the experience of the others and the more successful they are, the more content is accessible to everyone.
We are living in a time of profound transformation of information. Without trying to list all changes here, it suffices to say that after a century-long sleep the legal information world is now fully awake and moving. The changes that could be observed may not present the materiality of the works of Burnham and Sullivan, but as the electricity, they could be pervasive in our niche universe.
Last but not least, to add to the excitement of the vibrant discussions that will take place at the conference, the host city of Cape Town is bound to enchant you with its pulsating culture, spectacular scenery and fervent history.
Ask any lawyer “How are you doing?” and invariably the response includes a comment to the effect of “I’m too busy.”
Being overly busy seems to be a kind of occupational hazard for lawyers. Many of us possess a “can do” kind of attitude that leads us to agree to take on tasks whenever we’re asked to do so. While this makes lawyers desirable as volunteers for many non-profit organizations, it also results in many lawyers feeling overburdened and sometimes, overwhelmed by all that they need to accomplish.
One obvious solution to this problem is to develop and implement a rigorous personal time management program. Many excellent resources are available on this subject but time is a finite resource and even the most careful management of it cannot ultimately create more.
An underused but effective technique to manage an overlong To Do list is one that my pre-teen has completely mastered – just say “No” (or better yet, “No, thank-you.”) While not all requests can be met with a negative response, it is nonetheless an option to consider the next time someone asks you to review a document, sit on a committee or attend another function.
Take a moment to peruse your To Do list and consider: which items could you eliminate by simply saying “no thanks?” Take another moment and think about the matters in which you may have been procrastinating a little, or the “dog files” in your office that you’re hesitant even to open.
What if you had the foresight (or fortitude) to say “no thanks” to those clients when they first sought to retain you? Would you now have more time available to devote to more profitable and satisfying tasks?
A related time management technique is to develop and maintain a “Don’t Do” list. This is a list of items that you want to prevent yourself from doing (i.e. things you know you should say “no” to). Standard Don’t Do list items include tasks you have delegated or should be delegating, tasks that distract from your priorities and other tasks that are either not productive or don’t fit your skill set or expertise.
You should also consider adding a few loss prevention tips to your Don’t Do list. For example:
- Don’t act for relatives.
- Don’t take on clients who have already changed lawyers several times.
- Don’t go into business with your clients.
Being overly busy isn’t a necessary part of being a lawyer. It is the result of choices you make in the course of each and every day. While you may not be able to see the results immediately, applying these strategies will help you to find your way through the busyness to a place where you have more control over your schedule and your obligations.
Based on an article of the same title originally published by Canadian Lawyers Insurance Association in Loss Prevention Bulletin Issue No. 39, Winter 2007.
Have you noticed how many law firms have won awards for their workplace strategy? In the quest to attract and retain talent, many law firms build an “employer brand” through the pursuit of third-party recognition.
This seems like a no-brainer for any organization. What firm wouldn’t want to be known for having satisfied employees? And who wouldn’t want to work for one?
A lot – not all, but a lot – of these rankings measure how engaged your workforce is.
Employee engagement focuses on attitudes. Do people feel good about working for your firm? Are they happy with their experience and their interactions with colleagues? Mutual commitment, loyalty and belief in the core purpose of your firm are hallmarks of an engaged workforce.
These measures are important. But they might not be enough.
In a flat or turbulent market, firms need to reconfigure their capabilities to stay profitable. For example, they might develop innovative operational processes or diversify the work they’ll pursue. This requires a workforce strategy that pivots on alignment.
Employee alignment focuses on behaviour. Are employee efforts in line with your overall goals? How are those efforts measured, rewarded and, if necessary, adjusted? Do you regularly help people develop the capabilities necessary to succeed?
According to Cees van Riel of the Reputation Institute, alignment presumes that people at your firm know what your overall goals are and why they are being pursued.
This might be a tall order in some organizations. It’s worth pursuing if you’re serious about improving value, though.
“Every 10% improvement in alignment increased an employee’s effort level by 6%, which in turn generated a 2% improvement in the employee’s performance.”
That could add up to some pleasant profitability reports, not to mention reductions in employee turnover and recruitment expenses and a boost to your reputation.
Alignment is about more than showing up to work every day and feeling good. It’s about doing the right work in the right way (and, yes, feeling good about it). It offers a more holistic approach to workplace strategy than engagement.
Next week, I’ll continue the discussion by illustrating ways to start measuring employee alignment – what to look for, what to prioritize and how to create a system with integrity. If you have any relevant examples from your firm or others that you’d like to share, please comment here or send me a note in the meantime.