Robots and the Law


In my previous posting, Automation in the Legal Market, I discussed the issue of automation vs. augmentation, where I touched upon the issue of the potential changes that might flow from the entry of IBM Watson into the legal sphere with the ROSS search engine. While the issue of automation is one that has been discussed from time to time over the last few years, there has been an explosion of articles in the last while that have addressed the automation and artificial intelligence (AI) robots, either directly or tangentially.

On LinkedIn, Patrick DiDomenico published a posting entitled What the Amazon Echo Taught Me About Knowledge Management (Hint: UX). He notes that, while Amazon’s product is designed for domestic use, there are implications from its adoption that knowledge management professionals can do to harness the benefits of a good user experience.

Ron Friedmann, in his posting on Designing the Law Firm of the Future also looked at the issue of proper design in addressing the client experience. More recently, Ron attended the IBM-hosted World of Watson, and generated two live blog posts entitled Cognitive Computing in Perspective, Transforming Industries, and IBM CEO Gini Rometty on IBM Watson.

In the second of his postings, Ron quotes the chairman of Wayblazer, who noted that “no one understood, early on, that the Internet would be a bank, travel agent, and love match-maker. The inventor of the cell phone could not anticipate the billions in use today. Lesson: you cannot know where tech will take us next.” As well, “disruption starts happening with small steps.”

The last posting is particularly interesting because of its insights as to what IBM is planning. Ron reports that Ms Rometty noted that we are at the intersection of business, tech, and society.

But that leads to the more concrete question as to how law firms are going to grapple with that fact. A very good overview of some of the recent writings is found in a posting at Virtual Intelligence is entitled Robotic intelligence entering the legal market. One the experts quoted there is Richard Susskind, from his article Wired for Success. In that article, Mr Susskind takes a long view on the issue of the applicability of AI. He predicts that AI, which was the subject of his 1986 doctoral thesis, “is unlikely to become widespread within the legal sector until the 2020s.”

Also from The Partner magazine, which published the interview with Richard Susskind, is an article entitled Intelligent Choice. This article highlights the efforts of Manchester-based DWF LLP, which, working in partnership with Watson’s labs in Dublin, “is developing an AI tool that automatically allocates new work sent in by its volume-based clients. To enable the tool to make its decisions, it draws on data contained in the firm’s case management files which, in turn, helps the tool predict a new matters likely legal complexity.”

The article notes that both Riverview Law and BLP Legal Risk Consultancy, an offshoot of UK law firm Berwin Leighton Paisner, are seeking to develop legal AI tool “to ensure that lawyers spend less time understanding what is, in effect, administrative work and more time using their legal skills to offer clients high-level analysis and advice.”

On the Bloomberg BNA Legal Communities site recently was an article entitled Will Powerful Technology Replace Lawyers? The article quotes a University of Vermont law prof who argues that “anything we write in a contract I think can be rewritten in a coded way.”

On Dewey B Strategic, Jean O’Grady asks, Dear Watson – I have a question for you! Watson & Legal Research: We know it can answer, but can Watson ASK questions? The answer to that question is: perhaps not now, but given the Moore’s Law if the experience with cell phones is any indication, the answer is, “Probably soon.”

But perhaps the best, and most in-depth, analysis of the issue of robots in the law is in a long study entitled Civilisation 2030: The Near Future for Law Firms, produced by London, England-based Jomati Consultants LLP. The 33-page report is not generally available but may be obtained upon request to their primary contact on this report, Tony Williams.

The reports starts with an analysis of world population growth generally, and specifically in the world’s largest cities. It discusses what the political and economic implications are from current trends, where developed countries will soon see their populations declining, and the world’s population will ultimately being to decline.

The report addresses the development of AI bots in industry and then looks at the effects in the legal market, including the impact on clients and on firms. Among its predictions are the following:

  • knowledge bots, which can operate 24/7 and learn, will start to replace assistants and junior associates
  • alternative business structures may facilitate adoption of intelligent bots, as many large-firm lawyers are resistant to change
  • those partners who have empathy, creativity, and imagination and who can really win a client’s loyalty will become immensely valuable

If you don’t have the time to obtain and read the full report, a very good summary can be found in an article on the Legal Futures site entitled Report: artificial intelligence will cause “structural collapse” of law firms by 2030.

A Meaningful Mediation Avoiding Remedial Costs

The issue of remedial costs, previously discussed here, posed one of the few checks on the growing power of insurance companies in Ontario for motor vehicle collisions.

The Ontario Court of Appeal recently released its decision in Ross v. Bacchus, reversing the trial judge’s award of remedial costs against the insurer for failing to comply with its obligations under the Insurance Act. Justice Doherty stated,

[51] Insurers, like any other defendant, are entitled to take cases to trial. When an insurer rejects a plaintiff’s offer and proceeds to trial, the insurer risks both a higher damage award at trial and the imposition of substantial indemnity costs after the date of the rejected offer. Both risks came to pass in this case. The insurer paid a significant financial penalty for its decision to proceed to trial. The costs provisions in ss. 258.5 and 258.6 do not address those risks, but instead address the failure to meet the specific obligations identified in those provisions. The trial judge’s assumptions about the insurer’s motivation for rejecting the respondent’s offer and proceeding to trial had no relevance to the determination of whether augmented costs should be awarded under the Insurance Act provisions.

He conceded that these sections are intended to penalize insurers for their failure to comply with statutory obligations, but indicated that the facts here, where an insurer states they are not prepared to settle a claim on the even of trial, does not fail meet the statutory requirement for the penalty to “attempt to settle the claim as expeditiously as possible.”

Justice Doherty distinguished this case from Keam v. Caddey, where the insurer had declined two requests to participate in the mediation, and a mediation was never held. He stated that a strong position while entering a mediation does not preclude meaningful participation in the process. Submissions from the appellants stated that the trial judge could not have known the reasons for the insurer’s position without potentially violating the privilege attached to communications for the purpose of settlement.

Mandatory mediation was introduced to Ontario as a pilot in 1999, and then made part of the Rules of Civil Procedure in 2001. The purpose was to reduce cost and unnecessarily go to trial. The principles under the Insurance Act, though enacted through a different mechanism, were intended to serve the same goal.

 

Ontario’s experience with mandatory mediation has been a mixed one. Although there were some reports of earlier resolution and greater satisfaction, there were also complaints of additional costs and unnecessary delays. This is particularly true when a party is not properly prepared for mediation, is simply going through the steps and a procedure, and has no real intention of resolving the issues.

The failure of FSCO to mediate the accident benefits component of personal injury claims in a timely fashion has been a particular concern for the personal injury bar. In a rather scathing decision in Hurst v. Aviva Insurance Company, Justice Juriansz stated,

[28] Relying on this characterization of the purpose of the legislative framework, the appellants urge that the words of the various relevant provisions be interpreted to hold that insured persons cannot commence a court action until mediation between the parties has actually been attempted and failed, and a mediator’s report has been issued.

[29] In my view, the appellants’ identification of the statute’s purpose is incomplete. No doubt, it is an important purpose of the legislative framework to make mediation mandatory. That, though, is not the whole story. Reading the provisions in their entire context makes clear that the purpose of the legislation is to make mandatory a mediation process that is timely and effective. The timeliness aspect of the mandatory mediation process is evident from s. 280(4)’s requirement that mediation be conducted within the time prescribed by regulation and s. 280(7)’s provision that mediation has failed when the prescribed time for mediation has expired.

[30] The purpose of the legislative scheme of dispute resolution is to mandate a speedy mediation process, conducted and completed on a strict timetable, in order to settle disputes quickly and economically. The speedy mediation process enables insured persons to receive the benefits to which they are entitled without delay. When the legislative purpose is properly characterized to include the timely resolution of disputes, there is no reason to resist the grammatical and ordinary sense of the legislation. Therefore, I do not accept the premise on which the appellants’ entire argument is based…

Determining the intent of an insurer when taking a hard nosed approach in a mediation will always be impossible without violating privilege. Reducing the interpretation of ss. 258.5 and 258.6 to applying on to those cases where an insurer refuses to mediate means that insurers will feel compelled to attend a mediation, without any need for negotiations in good faith.

Hard-nosed bargaining, and even a refusal to settle out of an interest to dissuade a plaintiff from proceeding to trial, can now be perfectly acceptable.

 

An effective mediation is one where the parties actually seek to address the issues. A meaningful mediation, where an insurer makes genuine efforts to resolve the claim without going to trial, is the only reasonable interpretation of the Act, and the best way to ensure that claims are processed expeditiously.

 

 

Summaries Sunday: SOQUIJ


Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

PÉNAL (DROIT) : Si la juge avait correctement qualifié les délais et tenu compte du faible préjudice subi par l’accusé ainsi que de sa large part de responsabilité dans les délais, un arrêt des procédures n’aurait pas été prononcé; par conséquent, l’appel est accueilli et la continuation des procédures est ordonnée.

Intitulé : R. c. Rioux, 2015 QCCS 1669
Juridiction : Cour supérieure (C.S.), Montréal, 500-36-007148-144
Décision de : Juge Catherine Mandeville
Date : 22 avril 2015

PÉNAL (DROIT) — procédure pénale — procédure fédérale — arrêt des procédures — droit d’être jugé dans un délai déraisonnable — appel — norme d’intervention — qualification des délais — délai imputable à l’accusé — décision correcte — préjudice — question mixte de fait et de droit — erreur déterminante — continuation des procédures — conduite avec facultés affaiblies — alcoolémie supérieure à la limite permise.

Appel d’un jugement de la cour municipale ayant accueilli une requête en arrêt des procédures. Accueilli.

La juge de la cour municipale a prononcé l’arrêt des procédures à l’égard des accusations de conduite avec les facultés affaiblies et une alcoolémie supérieure à la limite permise portées contre l’intimé pour cause de délais déraisonnables. Entre la date de son inculpation et celle de son procès, 57 mois et 15 jours se sont écoulés. La juge a estimé que, globalement, ce délai était déraisonnable. Sans se prêter à l’exercice de qualification des délais et se fondant sur un tableau remis par la poursuite, elle a retenu que seuls 11 mois étaient imputables à la poursuite et aux ressources institutionnelles.

Décision
La norme de contrôle applicable à la qualification des délais et à l’omission de prendre en considération l’intérêt de la société à ce que le procès soit tenu est celle de la décision correcte, alors que l’évaluation du préjudice requiert plutôt l’application de la norme d’intervention d’appel relative aux erreurs mixtes de fait et de droit. En l’espèce, l’omission de la juge de faire sa propre qualification des délais a teinté l’ensemble de son analyse et l’a incorrectement conduite à prononcer un arrêt des procédures. En effet, la juge a eu l’impression que le délai de 57 mois était excessivement long et déraisonnable et qu’il avait nécessairement causé préjudice à l’intimé. Elle n’a pas analysé la conduite de ce dernier. Or, il s’est écoulé près de 23 mois entre la dénonciation et la fixation d’une première date de procès parce que l’intimé a demandé à 6 reprises des dates pro forma et, à la journée prévue pour l’audition du procès, il a demandé une remise pour attendre la décision de la Cour suprême quant à la constitutionnalité du projet de loi C-2 (Loi modifiant la Loi réglementant certaines drogues et autres substances). Or, l’intimé ne peut invoquer les délais qui découlent de ses propres actes ou de ses choix. En examinant le délai en fonction du seul délai attribué à la poursuite ou du délai global en soi, sans se questionner sur les raisons justifiant les quelques 46 autres mois écoulés et sur le préjudice réellement causé, la juge de première instance a commis une erreur dans son analyse qui requiert l’intervention du tribunal. Quant au préjudice subi, une erreur déterminante a été commise. En outre, la juge n’a pas analysé en quoi le délai attribué à la poursuite était responsable des préjudices subis par l’intimé. Elle n’a pas fait de distinction entre le préjudice qui résulte du seul fait d’être inculpé d’une infraction et le stress de même que les inconvénients résultant d’un délai déraisonnable dans la progression du dossier judiciaire. Or, cette distinction était particulièrement importante en raison de la contribution considérable de l’intimé aux délais dont il s’est plaint. Enfin, la juge n’a pas fait l’exercice de soupeser les intérêts de la société à ce que le procès ait lieu alors qu’il s’agit d’un exercice important qui doit être fait avant d’ordonner l’arrêt des procédures.

Le texte intégral de la décision est disponible ici

It’s Not Just Them: The Social and Economic Consequences of Family Conflict

Busy family law lawyers, myself included, live in a bubble of immediacy, a shroud of crisis that moves with us as we go forward in time and cross entry after entry off our calendars. This often has two consequences. First, it discourages us from enquiring into the past, into the roots and evolution of the law on domestic relations, for example, or the delightful but sadly defunct matrimonial torts, and from seeking to decipher the meaning of important statutory passages such as this:

Subject to this Act, a guardian of the estate of a child has all powers over the estate of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24, and 49 and 50 Victoria, chapter 27, section 4.

Secondly, it reinforces the time-honoured tradition that the interests we serve when acting for a client stop at the client.

It occurs to me, as we struggle to cope with access to justice issues and the rising tide of litigants without counsel, that our myopic focus on the present has allowed us to overlook the broader impacts that family law disputes have on separating families and on Canadian society as a whole.

(In this post I am, of course, not talking about parents who separate amicably and never darken the door of counsel or court, but those engaged in mid- to high-levels of conflict. To give some idea of the prevalence of such conflict, Joan Kelly, a prominent American child psychologist, says that:

  • 20 to 25% of children of divorced parents lived with parents in highly conflicted marriages before their separation;
  • about 30% of separating parents report being in a “great deal” of conflict; and,
  • 20 to 25% of parents remain in conflict with each other three to four years after separation or divorce.

We also know, from recent research undertaken by the Canadian Research Institute for Law and the Family, that this sort of conflict only gets worse when one or more parties are without counsel, as a result of taking positions based on principle, having unrealistically high expectations of outcome and the much higher likelihood that trial will be necessary to resolve the dispute.)

In terms of separating parents, family law lawyers will be aware that the effects of their conflict are not confined to the legal arena; understanding the psychology of separation and the grieving process are key skill sets for counsel practicing family law. However, legal issues, particularly for low-income individuals, rarely come one at a time. The Canadian Bar Association’s Equal Justice report is one of many which note that the existence of one legal problem tends to beget others; in fact, a background paper (PDF) prepared for the University of Toronto Faculty of Law’s Middle Income Access to Justice Initiative cites an Australian study which found that 22% of the population had 85% of the legal problems.

Furthermore, the existence of a legal problem often has a spillover effect onto people’s health, finances, relationships outside the nuclear family and general wellbeing. A 2006 study (PDF) by the federal Department of Justice asked litigants about the impact that their legal proceeding had on them; almost two-fifths said that their mental health had been compromised, and almost one-quarter said that their physical health had been affected:

DOJ chart

Similar results were found in the 2009 report (PDF) of the Law Society of Upper Canada’s Ontario Civil Needs Project. In addition to adverse impacts on their physical and mental health, respondents also identified loss of income and loss of relationships as among the more significant consequences of their legal problem:

LSUC chart

Other family members are also affected by separation. Grandparents can lose contact with their grandchildren or, conversely, find themselves suddenly saddled with the grandchildren as their primary caregivers. Nieces and nephews, aunts and uncles can all suffer from the loss or attenuation of important relationships. Grandparents may also find their financial stability and retirement plans are threatened if asked to bankroll parents’ litigation.

The children of separated parents are of course most affected by conflict. Separation is distressing for all children, and certain adverse effects are common, including:

  • mental health issues, such as depression and anxiety;
  • emotional problems like sadness and anger;
  • problems in school, such as falling behind, truancy and dropping out;
  • social problems, such as delinquency and petty criminality; and,
  • higher rates of substance use and abuse.

Although all of these reactions are normal and usually fade with the passage of time, as Dr. Kelly points out, the likelihood of their occurrence, and the severity of their impact when they do occur, increases with the duration and intensity of parents’ conflict.

As if these immediate sequelae of separation weren’t bad enough, researchers like Robert Emery point to serious potential long-term impacts of parental conflict on children’s behaviour, including higher levels of aggression and acting out, problems resolving disputes, and difficulties forming stable, trusting relationships as adults. Amy Baker and Naomi Ben-Ami have found that adults who were alienated from a parent as a child, a phenomenon associated with intense parental conflict, have reduced rates of self-sufficiency, higher rates of depression and insecure adult attachments, and higher rates of drug and alcohol dependence. The Norlien Foundation, through its remarkable Alberta Family Wellness Initiative, has shown that parental conflict and other adverse childhood experiences can actually change the way children’s brains develop, with significant lifelong consequences including a predisposition to addiction.

Pulling the focus back somewhat, this research strongly supports the inference that the effects of family breakdown and family conflict extend far beyond the court arena and have ripple effects that spread from parents to their children, their extended families, their employers and the economy, never mind the consequences to be visited upon their children’s future families.

Our economy most certainly suffers from lost productivity as employees and the self-employed cope with the emotional consequences of relationship breakdown and take time away from work to write affidavits, assemble documents, argue applications, attend examinations for discovery and attend trial. One wonders how many jobs are lost when vacation time is exhausted and employers can no longer accommodate the absences necessitated by the litigation process.

The loss of employment or diminution of income can trigger a cascade of other consequences, including an inability to make payments to mortgages, leases and utilities, an inability to pay car loans, car leases or insurance premiums, and an inability to meet a support obligation. This can result in litigants becoming unhoused or losing their transportation. Child and spousal support enforcement programs can much produce the same result, as well as job loss, when collection efforts deprive payors of passports and drivers’ licences, and impact payors’ credit ratings and ability to obtain loans.

Further predictable downstream impacts include a heavier demand on physical and mental health resources, child protective services, and a higher reliance on social assistance, unemployment relief and housing programs. The Canadian Forum on Civil Justice has been researching the costs to the state of civil litigation since 2012, and has summarized some of the initial results of their work in a recent post on Slaw:

“Beyond the impact on the individual, everyday legal problems can potentially lead to considerable ‘knock-on’ costs to the state. That is, they can increase the cost of publically funded services and programs … over the three years covered by our study,

  • over 200,000 people reported receiving social assistance as a direct result of their legal problem,
  • almost 1,000,000 people reported losing employment because of a legal problem they experienced, and
  • over 900,000 reported visiting physicians more frequently than usual as a consequence of having an everyday legal problem.

“When these numbers are used to calculate ‘knock-on’ costs to the state, what we see is that unresolved legal problems can potentially result in an estimated

  • $248 million in additional social assistance costs,
  • $458 million in additional employment insurance costs, and
  • $40 million in additional heath care costs.

“When combined this amount is approximately 2.35 times greater than the annual direct services expenditures on legal aid.”

These numbers border on the incredible! I wonder, however, what the final numbers would be if the cost of maintaining the courts, and the abundance of ancillary services necessary to keep them operational, were factored into the equation? Either way, the irony that the state spends less than half on legal aid than it does meeting the added costs incurred as a result of litigation is palpable.

To be blunt, it seems to me that family law lawyers and the family justice system in general, must broaden their understanding of the profound socioeconomic effects of family law disputes and account for them in their day-to-day business.

From the point of view of counsel, it is critical to recognize that the extent the interests relevant to our clients does not begin and end with their personal legal interests. Although sociopaths would understandably disagree, we must consider the multifaceted effects conflict has on our clients and, more importantly, on our clients’ children. If children’s best interests is the predominant factor in decisions affecting their welfare and care arrangements – which arguably all decisions in a family law case do – we must manage our clients’ conflict with greater tact, skill and care. The near-term negative outcomes experienced by our clients’ children pales in comparison to the potential long-term effects on their wellbeing and their own future families; surely the effect of family conflict ought not be passed from generation to generation like sickle-cell anemia.

From the point of view of the system, it is long past time to take a holistic approach to legal conflict and recognize that the costs of litigation are not limited to the budget of the various ministries of justice. At a minimum, unbuffered family conflict comes at a massive additional price to our spending on health care, child protection, welfare, employment insurance and human services, and to the overall vigour of our economy.

I understand the territoriality with which government departments husband their budgets and acknowledge that it is a flight of fantasy to imagine that health, education, child protection and human services would ever remit a penny from their budgets to improve the delivery of services by justice. However, in my view the astonishing breadth and depth of the consequences of family law disputes must stir the federal, provincial and territorial governments to finally devote the necessary resources to family justice reform, and, even if not, these issues must certainly be taken into account in developing justice reforms.

We must stop thinking of family law conflict as a private dispute affecting only the separating parents or spouses. An improved, less adversarial justice system will benefit us all.

The Friday Fillip: Carom


For the next while the Friday Fillip will be a chapter in a serialized crime novel, interrupted occasionally by a reference you might like to follow up. Both this chapter of the book and the whole story up to this point can be had as PDF files. You may also subscribe to have chapters delivered to you by email.


 

MEASURING LIFE
 
Chapter 12
Carom

Mitman stuck his head around the office door. “I’ve checked the timing on the alarms and lights and all, and it’s fixed.”

Rangel didn’t look up. “I know. You’ve told me twice already.”

“Right . . . right. It’s just that I didn’t want you to worry.”

“Do I look worried?” Mitman said nothing. Rangel looked up. “Now you’re going to say that I should be worried. But not to worry. Have I got that right?” Mitman withdrew his head.

“Go back to work,” he called from the far reaches of the front room. “Honestly, you’re flightier than a fart in a hankey.”
 


 

“THAT’S A LOT OF WORK.” Ronnie Dabord smiled at Jeannie Pastor and patted the file she’d put onto his desk. She wasn’t sure whether he meant her work in coming up with the documents or the work that had gone into search for Jared Willoughby a dozen years ago. In neither case would it be true.

“All it took was a couple of phone calls,” she told him. “The provincials managed to come up with it eventually.” In actual fact she’d had to badger them with half a dozen calls. But that was pure excitement when compared to sitting at her desk and working up the monthly Backton P.D. Newsletter.

“Yeah, but I wouldn’t have known where to begin.”

There was something about this that made him anxious, Pastor realized. He hadn’t been chief back then, when Jared disappeared. He’d only just started working for the department. Hardly likely that there was anything in the file that would make him look bad, she thought. Impulsively, she picked it up off his desk. “Tell you what,” she said brightly, “I’d better make a copy to send over to G.R., because you’re going to want to keep the original. No?”

“Sure,” he said. “Sure. Good idea.” And as she swept out of the office she could see his hand reach out to the place the file had been.
 


 

“MRS. TREMAINE, THIS is Gregoria Rangel.”

“Hello Miss Rangel.”

“I’d like us to meet, if possible, to talk about a couple of matters relating to Jared.”

“You haven’t found him, have you?”

“Oh, no. I’m sorry if I gave you that impression. What I have in mind is a meeting so you can tell me as much as you can about Jared’s disability, his cerebral palsy. There’s a slim possibility that it may help to locate him. And I’d like to discuss with you how best to arrange your affairs so that Jared would be looked after upon your death.”

“I’m glad you didn’t pussyfoot around. All this talk about ‘passing on’ or ‘passing over’ or simply ‘passing.’ As if we were bodily waste. Death is death. That’s its name.”

“Indeed. Would a meeting be possible? I’d come to you, of course.”

“No need. Reg Bettleman’s already said he’d drive me into town whenever I wanted this week. It’s my shopping week, you see.”

“Splendid. Would tomorrow at eleven be alright?”

“That would suit me perfectly.

“Oh, and I should tell you that the somewhat elusive office is now located on Orchard Street, directly opposite the D-Lux Café.”

“Thank you. And goodbye Miss Rangel.”
 


 

“HMPH. WHAT BRINGS you to the factory floor?” Dean Nabel wheeled himself away from his visitor and into a private back room in the operations shed. “Shut the door behind you,” he said, as the man followed him in. The room was a soundproofed haven from the dust and constant roar of the gravel mine. Minimalist and modern, it was the antithesis of everything that lay outside it. Daylight poured down through a light tube at the ceiling, and the walls were hung with large paintings. Nabel’s visitor made a point of studying each in its turn, as he always did.

“You know, Dean,” he said, “ I do believe I’m actually coming to like this one.” It was a series of palely coloured bars done on a field of jade green. “Restful. Your kid do it? Oh, that’s right. You don’t have any kids.”

Nabel refused to be drawn. He’d been down this road many times before and knew where the potholes were. “It’s yours for half a million,” he said.

The man tsk-tsked. “Shame on you, Dean, inflating the price like that. The highest Bush has ever gone is just over three-hundred thousand.”

“Is it now where I’m supposed to say ‘You amaze me, Mr. Tu. I had no idea you were so familiar with the art scene.’”

The man turned to Nabel. “We now say Mr. Vinh. It is the coming way, I’m told. The culture changes. I change with it. I even give my name backwards now, the way it is done here. Tu Duc Vinh. Strange to my ears.”

He took himself over to an exquisite Deco cellaret and poured himself a splash of scotch. He held up the glass inquisitively to Nabel, who shook his head. Vinh was tall and slender, his dark hair swept back and spilling a little over the collar of his expensive suit. He had a widow’s peak that gave him a faintly diabolical look. All in all, it was a studied look, one he clearly enjoyed.

“Apart from providing you with amusement and The Macallan, how might I help you, Mr. Vinh?” Nabel asked.

“She and the lawyer are meeting yet again.”

“Is that so? You’re very well informed.”

“We are — concerned would be too strong a word — interested, shall we say. Intrigued, perhaps.”

“Without need. As you well know, this thing is papered from top to bottom and sealed with a court stamp.”

“May I?” Vinh gestured at a chair.

“Your insincere politeness is irritating.”

Vinh sat and sipped. “Like so many things, Dean.”

“She can do whatever she likes. I have nothing to worry about.”

Vinh took a deep breath and sighed it out. “The ball is in play. Is that how you say it?” Nabel just looked at him. “And it may bounce . . . unpredictably.”

Nabel’s face contorted. “Oh for God’s sake, cut the movie dialogue crap. What exactly is your problem?”

Vinh put his drink down on the floor beside his chair.
 


 

TWO PROBLEMS IN ONE day, Dabord was thinking. Here in dumbass Backton. It made him restless. Tomasini was excited, he could see that. “Nancy,” he said, “it’s possible, I’ll give you that. But it’s literally a slender twig to hang a murder case on.”

Tomasini sprang to her feet without thinking about it, she was that energized. “Yeah, but it’s got science up the ass. Forensic will swear the stick was used to jam the accelerator pedal.”

“Who in hell would bother setting up Eldon Jevvers like that? I mean, the boy was a nobody. Dealt a little dope maybe, but that’s it. You don’t kill people for dealing weed.”

“Exactly!” she said. “So it’s big. He was into something . . . big.” Dabord could see that she was on the point of adding that this was ‘very cool.’

“Autopsy?” he asked her.

Her face fell. “Not yet. They’re backed up.”

“As always.”

“Yeah, but I could let them know that forensic is saying murder.”

Dabord frowned. “Nancy, let’s just let things run their course. See what the pathologist gives us. Need be, we can go back to them with some follow-up questions.”

She was clearly disappointed. He could see it. Hell, she wasn’t even attempting to hide it. There went his ‘Best Boss of the Year’ mug. He liked her and didn’t want her to bail on the Backton PD, though he knew that day would come eventually. “Why don’t you poke into Master Jevvers’ life a bit. See what the loser was up to. Hey?” It was a sop but one that she sucked up instantly.

“On it,” she said. And there was a moment when both of them heard how TV that was. They started laughing at the same time. “Seriously,” she said. “I’m on it.”
 


 

JULIUS SANDERS SAT ACROSS from his lawyer and drummed his fingers on the tabletop. “Bail?” he said, without preliminary. He was running to fat and his belly hung out over the top of his prison pants. Balding, pale as cucumber flesh, slack limbed, Sanders nevertheless gave out a sense of compressed aggressive energy, as if within him there was a loaded matrushka or a grenade with the pin about to fall out.

Peter Main shook his head. “It’s still not worth appealing the refusal. Nothing’s changed. Two convictions under 163.1 make a heavy load for a court to lift.”

“I didn’t do it. Any of it. I’ve told you that. You believe me, right?”

“You have told me, Dr. Sanders. What’s important right now is that we draft your appeal well. And that we’re working on.”

“Yes, but it’s important to me that you believe me. No one else does. I mean, dear God, I live in fear of being bounced off the walls here like a squash ball. You know how they hate the child thing.”

Main said, “You’re still in admin segregation, right?”

“Yes, yes. And that’s almost as bad as having the shit beat out of me.”

“No, Dr. Sanders. No, it’s not.”

“So no hope of bail pending appeal, huh?”

“I’m afraid not.”

Sanders pulled back from the table, his face fallen. It looked as though he might cry. Main hated it when the clients cried. “Sorry I bothered you, then,” said Sanders.

“No, no. It’s your right to talk to your lawyers. And it gives you a chance to speak to the next best thing to another human being.”

Sanders frowned. “Is that a lawyer joke?”

“It is, I’m afraid,” Main said.

“Not really funny,” said Sanders, abstracted now. “Dentist jokes aren’t funny either.” He looked up at Main. “We’re number three, you know.”

“Number three?”

“Dentists. Professionals most likely to commit suicide. Lawyers are way down at number twelve. Pussies.”

Main looked alarmed. He reached a hand out towards Sanders. “You’re not seriously suicidal, are you?” he said.

“Think of it every hour of every day.”

“Please don’t scare me like that, Dr. Sanders. If I think there’s a significant risk, I’ll have to ask that you be put on suicide watch, and then they’ll take away half the things you’ve got now.”

Sanders scraped his chair back even further and got up. The guard looking through the window began to enter the room. “Don’t worry. My . . . self regard is too large for me to off myself. And my anger. Mostly my anger.” They shook hands, a perfunctory male one-two jerk.

Just as Main was about to leave the room through the door on the public side, he turned and asked the departing Sanders on the other side, “What’s number one?”

“Marine engineers,” Sanders said.

“Huh,” said Main.

 

How the Ball Bounces
After all that jumping around — and to help you relax after a long week of work — I thought that a simple falling ball web application might be just the thing. Ball Bowl asks you to click anywhere and watch as the ball you’ve just brought into being, falls, caroms, bounces and finally, jiggling, comes to rest. Do it again. And again. From here. From there. The mindlessness is wonderful.

 
© Simon Fodden

E-Laws Discontinues the Detailed Legislative History Tables – Sign Our Petition Today!

As you may have heard, during the recent E-Laws website migration, the decision was taken to discontinue producing the Detailed Legislative History Tables.

In 2002, Ontario stopped publishing the Table of Public Statutes in the Statutes of Ontario. Instead the SO directed users to E-Laws for these tables moving forward.
The Table of Public Statutes has been published since 1877 as an important historical legal research tool.

Now the tables have been discontinued outright, however the E-Laws team has not yet devised a solution to take its place.

Accordingly, I have prepared a letter and petition to the Ontario Attorney General requesting that these tables be re-instated, at least as long as a suitable replacement tool can be devised.
To sign the petition, please click here. http://www.ipetitions.com/petition/elaws

Please visit this website to view the entire letter.

Please circulate this petition widely. I hope to deliver it by June 15.

Law Firm Succession Planning – Is the Client Too Often the Forgotten Variable?


Recently, I’ve been spending a lot of time with clients helping them with Succession Planning. To put it bluntly, it appears that succession planning is an “issue” for the industry. This shouldn’t come as a surprise to anyone since the youngest of the Baby Boomers will be passing the age of 50 in 2015 (and the oldest will turn 69). The pressures of succession planning can be felt on the shoulders of law firm senior management and they are trying to find solutions – fast.

But are they looking for solutions in all the rights places? I’ve been included in a lot of discussions about factors that need to be considered such as timing, compensation, gaps in lawyer ranks and desire to work past retirement while addressing succession plans. Unfortunately, some firms seem to be forgetting about one key element, an element that I would argue is the most important one in the equation. The client.

A situation I experienced perfectly illustrates this point. As part of a Client Feedback Program I had recently implemented, I was with the Managing Partner (MP) of a large regional firm meeting the CEO of a client. The current relationship partner was a couple of years away from 65 (that firms mandatory retirement age) and the firm had been grooming a junior partner to take over the relationship. The individual had worked on the relationship since he was an associate and was well known by the client.

Now this was a very key client of the firm and to cut a long story short, I brought up the issue of succession planning. The MP was visibly taken aback when the client said that he had been wondering about the issue and asked who was going to take the lead on the relationship. The MP responded indicating that Junior Partner would be the successor at which point the CEO balked. He said that although he liked Junior Partner very much, and he thought he was a fine lawyer, he was not what they were looking for in a relationship lead. They were moving into a major growth phase and needed a lawyer who was aggressive and would aggressive for them. That is, not the Junior Partner, who the firm had been grooming to take over the relationship for a couple of years without ever speaking to the client about what they wanted in a Successor. See the error of their ways?

It seems so simple and yet most firms don’t speak to their clients early enough in the succession planning process (or at all – “Hi I’m your New Relationship Lawyer!”.)

So here’s my advice, no matter what the individual circumstances may be.

  • Instill a Client Focused culture in your firm. It should be about what’s best for the client – the rest are all internal issues that can be addressed internally.
  • Incorporate Client Feedback into your succession planning. Discuss the idea of transitioning the relationship with the client before it even becomes an issue wherever possible and don’t presume that just because you would like a practice to be assumed by one lawyer that your client feels the same way. This way the transition should be a smooth one and revenue shouldn’t be impacted.
  • Succession isn’t only an issue for law firms. If your client contact is coming up to retirement age, you want to allow for that conversation, and their successor, in your plan. You’ll be less likely to see the new guy bring in his “own lawyer” if you are part of the client’s transition plan.
  • Put a policy in place that states that all partners need to have a succession plan. The plans may vary in depth and content based on the seniority (and age) of the lawyer involved but it should be a mandatory part of the individual partner planning process. Ensure that the culture of your firm reflects that client relationships should be transitioned at retirement and that it is the role of the senior partner to mentor their replacement.
  • Ensure that compensation related to succession is tailored to the lawyer involved. Some partners may feel that retirement means just that – retirement. They want to transition their clients and leave to relax in peace. To others it may mean transitioning to an Associate Counsel role where they continue with client work as if they had never “retired” from the partnership. Others still may want to move into an ‘elder statesman” role becoming a part-time face of the firm. Whatever choice is made “for the good of the firm”, the client should still be considered.

If you consider these factors into your succession planning process, you’ll have the opportunity to make choices that work for your client as well as your firm. If you don’t, well maybe your client will simply take those choices out of your hands entirely.

Web Site Accessibility Standards in Ontario

The Regulation on Integrated Accessibility Standards under the Accessibility for Ontarians with Disabilities Act (AODA) provides, in s. 14, that ‘large organizations’

‘shall meet the requirements of this section in accordance with the following schedule:
1. By January 1, 2014, new internet websites and web content on those sites must conform with WCAG 2.0 Level A.’

Are your clients or other large organizations you know of complying with this obligation? Have they sought your advice on how to comply?

I ask not in order to send in the forces of order (‘not my department’, as we say in government), but because a private correspondent suggested to me that clients have not been paying much attention to this obligation and wondered if that experience was general. Or are most web sites already compliant?

You probably know of various lawsuits in the US by accessibility advocates that have successfully imposed such standards on private-sector enterprises with respect to their web sites. The regulation under the AODA might support similar suits (class actions?) here.

…..

Some definitions:

“large organization” means an obligated organization with 50 or more employees in Ontario …

Web Content Accessibility Guidelines” means the World Wide Web Consortium Recommendation, dated December 2008, entitled “Web Content Accessibility Guidelines (WCAG) 2.0”

“new internet website” means either a website with a new domain name or a website with an existing domain name undergoing a significant refresh;

You Can Vote for the 2015 Harper Lee Prize for Legal Fiction

Members of the public have until Friday, June 5 at 11:59 p.m. to vote online for the winner of the 2015 Harper Lee Prize for Legal Fiction.

The prize, which is sponsored by ABA Journal and the University of Alabama School of Law, is intended to recognize a work of fiction that best exemplifies the role of lawyers in society.

The three finalists this year are:

There is a judging panel of four:

  • Roy Blount Jr., author and humorist
  • Wayne Flynt, author and Alabama historian
  • Mary McDonagh Murphy, independent film and television writer and producer
  • Michele Norris, NPR host and special correspondent

The public vote will act as a fifth judge.

The 2015 prize will be awarded Sept. 3 at the Library of Congress in Washington, D.C., in conjunction with the Library of Congress National Book Festival.

The award is named after author Harper Lee, whose novel To Kill A Mockingbird, won the Pulitzer Prize in 1961.

Previous winners include John Grisham, Michael Connelly and Paul Goldstein.

 

When Unions Fight

Headlines get made when employers and unions wage labour war. Teachers fighting provinces, police officers fighting cities and postal workers fighting Canada Post all make for great news. Inter-union fighting makes less noise but is also fascinating when it ends up before labour tribunals. A recent case provides a great example of what happens when unions “raid” each other (“raiding” is when one union attempts to sign up members represented by another union).

The story seems to start here, with the International Association of Machinists and Aerospace Workers (IAMAW) talking to its membership (Toronto area airport screeners) about “harassment” and raiding by the Canadian Airport Workers Union (CAWU) . The situation escalated, resulting in Garda Security Screening Inc., 2015 CIRB 764, a decision of the Canada Industrial Relations Board (CIRB).

In short, CAWU filed a formal application to the CIRB to “take over” the representation of a group of airport workers from the IAMAW. The law allows raiding only at specific times and in specific circumstances (depending on the jurisdiction), but suffice to say that CAWU had met all the criteria and only needed to show that it had sufficient support from the IAMAW members to take over representation. IAMAW argued that its members had not truly defected and that there were “irregularities” in the process.

The CIRB agreed, finding that:

[19] … on the basis of the results of the investigation… there were numerous improprieties in the membership evidence filed in support of the certification application. In the Board’s view, the nature and the extent of the improprieties that were found have the effect of tainting all the membership evidence submitted in support of the application to the extent where the Board is not prepared to accept its veracity and to rely on it to order a representation vote.

Essentially, the CIRB found that a number of employees that the CAWU had alleged to have signed valid membership cards and paid dues (both requirements) had indeed not done so. The CIRB dismissed the application. The moral of story? Labour disputes aren’t just between employers and unions – union can also be extremely competitive with each other. It just generally doesn’t make headlines.