Slaw

At a press conference on February 6, 2012, Steve Woodworth, backbench Conservative MP for Kitchener Centre stated that he tabled a motion in Parliament calling for the creation of a special committee to study medical and scientific evidence about when a child can be considered a human being separate from the mother. He also wants that committee to examine the legal impact of denying full human rights to an unborn child and provide options to update the law.

Woodworth expects his motion to get an hour of debate in March and another hour in June.

As stated in my previous post on the topic, it seems as though Woodworth is taking an indirect approach to reopening the abortion debate, and many agree.

In question period, however, Justice Minister Rob Nicholson responded to Woodworth’s motion and questions from the opposition about reopening the debate on abortion:

Private Members’ motions are considered in accordance with the rules of Parliament. The Prime Minister has been very clear; our Government will not reopen this debate.

Even if the Prime Minister and the government do not want to reopen the debate on abortion, even if this motion is going nowhere, Woodworth’s actions are bringing the debate back into the public eye! It is a thought provoker, and it is making people think and the media talk about the law that defines a human being (section 223 of Canada’s Criminal Code), about the state of abortion and about whether that should change.

Regardless of any new science on the topic of when life begins, the issues of access to abortion and the human rights of unborn children remain inherently political. If we confer a right on an unborn child, we must also remove a right from the woman carrying that child. Some believe this trade-off is worth it. Others do not. Until we solve this dilemma, we are unlikely to reach a fully satisfactory conclusion on the issues at hand.

It will be interesting what further discussion comes out of the hour long debates set for March and June and eventual vote. And to see what Harper will do next to stop any and all discussion on the motion before it goes too far.

John is bored. His firm just hasn't been busy this month and instead of the usual big transaction work all he has are small bits and pieces of corporate matters. Even though none of it is complicated he just can't get down to doing any of it and is wasting time surfing the net instead.

Terry is deadline driven. Every day is about putting out fires and meeting last minute deadlines. He knows he should plan ahead and get to his projects done before the last minute but he has gotten use to the adrenaline rush and just can't get motivated to do anything without the pressure of a short deadline.

What do John and Terry have in common? They are both procrastinators.

As a coach one of the number one questions I receive from lawyers is about how to deal with procrastination. A friend recently introduced me to a useful resource, Dr. Piers Steel's book "The Procrastination Equation." Dr. Steel's book offers an unflinching look at why people procrastinate, types of procrastinators and easily actionable tips for reducing procrastination in your professional and personal life.

What is procrastination? Procrastination is not taking action on something when you know very well that inaction has potentially harmful circumstances.

It helps to know what kind of procrastinator you are. If you are like John you might be easily distracted. You find it hard to take action on things that are not inherently valuable to you or are not pleasurable. For instance, boring or repetitious tasks might be really hard for you to take action on when there are more interesting things to do.

If you are like Terry you might be impulsive. You are more likely to seek immediate then delayed gratification. In terms of work you find it easy to focus on anything that requires immediate attention but have a hard time with longer time lines. The result is that your habitual choice to do what is urgent and ignore the rest means that you are caught in a cycle of putting out fires and last minute work.

There is a third type of procrastinator with low expectations who I will call Mary. Mary lacks confidence in herself and has learned to expect failure. She procrastinates on projects that she fears she may not succeed at, or follow through on. Mary was given a gym membership for her birthday but doesn't go because she knows she has never managed to establish a regular physical fitness routine and thinks working out just once in a while has no value so "why start?"

Do any of the above scenarios sound familiar? If so let me assure you that you are not alone. According to Steel about 95% of people are self-confessed procrastinators. I am also a procrastinator. This article will be submitted one day late because I didn't schedule it in my calendar early enough and focused on my many other deadlines instead.

What are we procrastinators to do? The good news is there is a lot we can do. As a coach I have made great strides in curbing my inner sloth and so can you. First, identify what kind of procrastinator you are, then implement some of the tips from the list below. The goal is not perfection but simply reduction. Try and start by reducing procrastination in either your personal or professional life by 25% and then build from there. For a comprehensive list of procrastination-busting strategies pick up a copy of Dr. Steel's book and prioritize reading it. (As I type this I am thinking to myself that there are a number of procrastinators out there who will buy the book and never get to reading it!)

Top tips for curbing your inner procrastinator:

• Make your workspace a zone for focused concentration. Eliminate the distractions. One of the worst distractions is a messy office. Take advantage of the periods of low energy and concentration that arise during the day to organize and tidy your space. Just 15 minutes a day can make an enormous difference.
• Use your computer at the office for your professional work exclusively. Do your web surfing and personal email on another device and preferably in a different space. Consider buying an IPAD or Netbook for personal use instead of your office computer.
• Turn off all the computer distractions – the audio alerts and mailbox pop-ups. Dr. Steel's research indicates that professionals are 10% more effective with these alerts disabled.
• Bring visual cues for focusing your attention into the office. For example if you want to be productive during the day so you can get home to walk your dog then put a photo of your beloved pooch on your desk where you can see it.
• Reserve your morning and mid-day peak performance hours for your most difficult tasks.
• Break up distant deadlines into a series of milestones. Schedule time for working on these milestones instead of waiting until the last minute to start on the project as a whole.
• Work in focused intense sessions of 30 to 90 minutes without checking email and handle email in scheduled blocks of time.
• Talk to your client. If you have a client file with dust on it that is keeping you up a night then immediately after reading this article prepare what you want to tell the client about it, pick up the phone and call them. Tell them when they can expect to have a response from you. Apologize for the delay. I have many clients who have made these dreaded phone calls and the results have been positive.
• Keep a to-do list and review it daily. Take just a few minutes to set your goals for the day. Get one thing you are procrastinating about on the list and done.
• Deal with the dog file first. As a former litigation partner now a judge once told me, each day do the piece of work you like least first. Get it out of the way before you go on to other more interesting matters.
• Break complex projects into concrete next steps and set up milestones to work towards rather than simply working with one final deadline. For example, if you have a presentation to prepare, set a goal for developing the outline by a certain date. Then set a goal to have the handouts prepared by a particular date. Finally set a goal to have the PowerPoint completed and all materials sent in a week prior to the event.
• What gets scheduled most often gets done. Schedule time for tasks you are procrastinating on.
• Establish a routine of doing certain tasks at a certain time of day. Start the day with a coffee and review of your task list and goals for the day. If you want to build a habit of going to the gym schedule a set time and days of the week to go.
• When you feel stuck identify the biggest task you are procrastinating on. Then think of some other tangential tasks you are also procrastinating about. Trade off by taking action on the one you will find most enjoyable. In some cases this will mean taking 15 minutes to tackle tidying your office.

Here is what Justice Corbett of the Ontario Superior Court of Justice had to say recently in Sri Guru Nanak Sikh Centre Brampton v. Dhadda,

[1] It is not open to anyone involved in the plaintiff to dispense with the law because they think they are wise and know what is best. “Tradition” is not a basis for ignoring the law.

…

[4] The plaintiff has a long sad history of conflict. And this just has to stop. It is an embarrassment: the plaintiff is an important religious, social and cultural institution. The conflicts have been riotous, often petty, and are concerned with issues of control, and not the high-minded principles cited as justifications for this lawless behaviour.

[5] Snowie J. stated, roughly ten years ago: a “more business-like approach” to managing the affairs of the plaintiff would be in everyone’s best interests. Methinks Her Honour spoke too softly. No doubt she was moved by the fact that this is a religious and charitable institution, and the members and directors are unpaid volunteers. Apparently her message did not get through to everyone.

…

[11] Some of the defendants have engaged in gross misconduct in the conduct of this litigation. For them apparently, the ends justify the means. It is offensive that some defendants should perjure themselves so blatantly in their evidence. The ends do notjustify the means. Through their misconduct, these defendants have, in the end, only discredited themselves.

[12] Litigation is not some childish game. It is serious process of conflict resolution. It is not acceptable to lie under oath or to falsify documents to try to win a lawsuit for control of a temple.

[13] I understand that these are emotional issues for the parties. Some of the defendants have played key roles in founding and building the plaintiff. Together with some of the plaintiffs, they have built a wonderful and vibrant institution. But they do not own it. And these defendants’ past good deeds and leadership do not justify their misconduct.

With an opening like that, you know the facts have to be juicy. And they are, if not also complex and convoluted, and filled with an emotion.

But there are also some general principles of advocacy worth gleaning from the judgement too,

[290] A factum is written argument. That does not leave it open to deliver a written polemic. There should be a “facts” section of the factum, that underpins the argument. It is currently popular to blend facts and arguments. In my view, when this is done properly, it makes it easier to grasp the argument and evaluate the arguments. Where, as here, the recitation of the facts is the argument, and is not referenced to the evidence, the factum fails in its task to persuade. It creates suspicion in the mind of the judge. And so every controversial statement of fact must be checked to ensure its accuracy.

[291] Conclusions, or inferences, are of no value when stated baldly.

[292] Good advocacy is not the presentation of conclusions of inferences in a patterned argument. That is necessary, of course, but that is the easy part. Good advocacy is the careful selection and organization of facts that lead to the conclusions or inferences that then feed to a particular conclusion. The absence of a clear recitation of facts from which inferences or conclusions might be drawn has left it to the court to review the evidence to determine if there is evidence in the record to support the broad assertions in the defendants’ factum.

And if that doesn't have you reading the case for more, I'm not really sure what will.

A little while ago I blogged about legal bibliographies and highlighted some of the work that John Eaton at the University of Manitoba has done in this area. It is very nice to see that John's work has been recognised as he is the 2012 recipient of the Association of College and Research Libraries Marta Lange/CQ Press Award. This award recognises librarians who have made a significant contribution to bibliography and information service in law or political science. The press release from the American Library Association announcing the award can be found here.

Congratulations John!

As Connie mentioned, our firm launched a new website last week. In this post, I’ll share a few thoughts about the process of creating a new law firm website.

Lawyers tend to be a conservative lot, tend to set a low priority on things that don’t bring short term gain, and tend to want to be in control. That combination doesn’t lend itself well to creating a new website that may be somewhat different. It can lead to analysis paralysis, or a conservative approach that leads to either no new site at all, or one that tries to satisfy everyone.

So what is the best way to approach it? Some of this will sound like project management 101 – it is not unlike the process of building or buying a new home.

• Create a core team to run with the project that will include the CEO, the marketing/promotion manager, and others who believe in the project.
• Go to your internal influencers first at key stages to get early buy in.
• Celebrate the early adopters to get others on board. In our case showing some early examples was key for the candid lawyer photos.
• Seek input along the way – or at least keep the firm informed at key stages – but keep control in the core team.
• Decide who the audience is for the website, and what they would want to see. Depending on the nature of your firm, that could be existing clients, prospective clients, client influencers, or other lawyers.
• Look at different websites to see what you like and don’t like. Look beyond your own industry.
• Create a wish list of things you want to accomplish and what it might look like – knowing that some of those may have to be dropped or deferred for various reasons.
• Don’t forget the basics like your office location and directions.
• Hire well. Engage the right web developers and creative advisers. Check their references and body of work. Anyone can create their own site using online tools, and there are many web developers to choose from – but choosing one that understands web trends, doesn’t create sites that all look the same, and you are comfortable working with will get a better result.
• Listen to the web developer's suggestions and advice, and have regular progress reviews and discussions about direction and costs.
• Stay out of the web developer's way and let them do their work.
• Make sure the website is mobile and tablet friendly.
• Make sure the message and personality of the website matches your firm. It must be genuine.

Here are the three most-consulted English-language cases on CanLII for the week of February 1 – 7.

♨ 1. Reece v. Rumney et al 2012 ONSC 780

[1] This is a motion by the Plaintiff for an Order setting aside the verdict of the jury delivered on December 8, 2011 on the basis that there was no evidence to support the jury’s findings and for an Order that:

(a) the action be retried with another jury; or

(b) a verdict be delivered by the trial judge (the plaintiff acknowledged at the motion that this likely was not a realistic solution).

♨ 2. Howell v. Yourk 2012 ONSC 766

[1] After a thirteen day jury trial on a pedestrian motor vehicle accident case, the plaintiff was awarded damages totalling $481,000. The jury verdict exceeded the amounts set out in the plaintiff’s offer to settle. The plaintiff seeks his costs, inclusive of disbursements, totalling $431,353.12, relying in part on an offer served pursuant to rule 49 of the Rules of Civil Procedure.

♨ 3. Merck Frosst Canada Ltd. v. Canada (Health) 2012 SCC 3

[3] . . . . [These appeals] arise out of requests for information which had been provided to government by a manufacturer as part of the new drug approval process. In order to get approval to market new drugs, innovator pharmaceutical companies, such as the appellant Merck Frosst Canada Ltd. (“Merck”), are required to disclose a great deal of information to the government regulator, the respondent Health Canada, including a lot of material that they, with good reason, do not want to fall into their competitors’ hands. But competitors, like everyone else in Canada, are entitled to the disclosure of government information under the Access to Information Act, R.S.C. 1985, c. A-1 (the “Act” or “ATI”).

The most-consulted French-language decision was R. c. Sault Ste. Marie [1978] 2 RCS 1299

Dans le présent pourvoi, la Cour doit examiner des infractions diversement appelées infractions «statutaires», «réglementaires», «contre le bien-être public», «de responsabilité absolue» ou «de responsabilité stricte». Ces infractions ne sont pas criminelles au plein sens du terme, mais sont prohibées dans l’intérêt public. (Sherras v. De Rutzen[3]) Bien qu’appliquées comme lois pénales par le truchement de la procédure criminelle, ces infractions sont essentiellement de nature civile et pourraient fort bien être considérées comme une branche du droit administratif à laquelle les principes traditionnels du droit criminel ne s’appliquent que de façon limitée. Elles se rapportent à des questions quotidiennes, telles les contraventions à la circulation, la vente de nourriture contaminée, les violations de lois sur les boissons alcooliques et autres infractions semblables. Le présent pourvoi a pour objet la pollution.

Having recently travelled to the UK and the US with my 3G/WiFi iPad 1 as my sole communication device, I thought I would pass on a few thoughts on travelling with an iPad.

1) Roaming Charges Using your Canadian 3G SimCard Outside of Canada: Since I tend to be stingy (not a good quality), I have never tested using my Canadian 3G access while abroad. However, comments from others suggest it can be very expensive.

2) WiFi not as Common as One Might Think: Depending on your hotel chain of choice, I find that free WiFi is not always an option (and you should check in advance – many hotels list "WiFi availability" but it is often for a fee, as much as $15 per day). Free WiFi at airports can also be hit and miss. Likewise, although you can often find coffee shops on the street that provide free WiFi, if you are stuck in the middle of a city where there is no WiFi and need to use Google Maps or some other app, you are out of luck. I have experimented with Boingo to get paid WiFi access, but have not used it extensively.

3) Using a UK SimCard for 3G: While in the UK, I found a large number of mobile phone providers who provided "pay as you go" 3G iPad simcards. I ended up choosing a 1 GB pay as you go simcard from the Three store. The salesperson helped me to install it and set up an app so I could monitor usage. I found it useful to have Google Maps while riding double-decker buses to figure out where I was and where I was going.

4) Using a US SimCard for 3G: While in the US, I found it more of a challenge to acquire a US 3G simcard since most Internet chatter suggested you needed a credit card with a US mailing address to purchase a pay as you go simcard. However, at an AT & T store a salesperson suggested I could simply put in the mailing address of the US hotel where I was staying. I therefore purchased a simcard (a whopping $15 – I later learned I might have been able to negotiate a cheaper price or one for free from an Apple store, but that was not necessarily a convenient option for me). However, when trying to purchase the 3 GB per month pay as you go simcard, the online payment system would not accept my US hotel address for my corporate credit card. The salesperson then suggested trying my AMEX personal card, which did work (I have since seen some Internet chatter suggesting that prepaid US credit cards may also work). Ultimately, this worked out to being slightly cheaper than the hotel's WiFi and allowed online access while outside of the hotel.

5) Travel apps: There are no lack of iPad apps for travelling: see here, here, and here for some sample lists of travel apps. My most frequently used travel apps include Skype for iPad, WeatherEye HD, the Air Canada app, Yelp, and various subway maps, depending on which city I am in.

I welcome comments and other tips for travelling with an iPad. Of course, if purchasing simcards from abroad, do so at your own risk and make sure the salesperson understands your needs before commiting to any particular simcard or plan.

Now I need how to figure out how to stop the automatic renewal of my AT & T simcard . . . .

The LegalTech 2012 Conference last week was a bit overwhelming for me as a first-time attendee.

As a knowledge management (KM) lawyer / law librarian, my continuing legal education opportunities tend to focus more on conferences related to KM or law libraries, such as the upcoming annual conference of the Canadian Association of Law Libraries / L'Association canadienne des bibliothèques de droit held in Toronto in May.

However, I think it was worthwhile attending LegalTech, although I might not need to attend every year. The main difference for me was the large number of technology vendors exhibiting or presenting their technology.

There were several themes I saw from the conference, including e-discovery and predictive coding, enterprise search, the use of iPads in legal practice (including mobile device management), and working in the cloud. Of these themes, e-discovery seemed to dominate.

Because my technology interests are currently not focused on e-discovery, I found many of the seminar sessions to be less relevant for me. That said, the keynote sessions were interesting and I enjoyed the session called iLove for the iPad: Tips, Tricks & Apps. From that session, I realized I am likely under-utilizing GoodReader for iPad, which – in addition to reading PDF files – also allows you to manage and transfer your files. A number of other PDF apps were mentioned, including PDF PROvider for iPad (which allows you to create PDF files) and PDF Expert (which lets you easily use PDF forms and signatures). The speakers also recommended the Atomic Web Browser as an alternative to the native iPad web browser since you have an option to have this web browser "mimic" your web browser of choice. I also likely taking notes in iWriter, mentioned by the speakers, since it has keyboard "arrows" allowing you to more accurately move the cursor on the screen). The other app I will likely explore is SoundNote, which records the speaker's voice and synchs up the recording with notes you are writing on the iPad. There is of course also the two high-end apps for lawyers, being TrialPad for iPad (which allows trial lawyers to easily use their iPad to present visual evidence to the court) and TranscriptPad for iPad (which allows you to easily review, tag, and annotate examination for discovery transcripts).

Ultimately, however, I found that perhaps the most useful thing to do was to meet with vendors and find out about their technology.

The Supreme Court is scheduled to hear the appeal in Clements (Litigation Guardian of) v. Clements, 2011 BCCA 581, reversing 2009 BCSC 112; leave to appeal granted 2011 CanLII 36004 (SCC) on February 17, 2012. The Supreme Court’s summary of the issues in the appeal suggests that that all the Court was asked to do is clarify the meaning of the Resurfice material contribution test for proof of the causation requirements in causes of action in negligence and, then, determine the correct result in Clements based on that test. See http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=34100.

That is an accurate enough summary of what was in Ms. Clements (the appellant’s) leave to appeal factum. It is not an accurate summary of what is in her factum. The appellant (Ms. Clements) has explicitly asked the Court to decide if the causation issue ought to have been decided in her favour on the bases of the but-for test, in particular the “robust, pragmatic, common sense” approach mandated by Snell v. Farell [1990] 2 S.C.R. 311, 1990 CanLII 70. The parties’ factums are available on the Supreme Court’s web site. See http://www.scc-csc.gc.ca/case-dossier/cms-sgd/fac-mem-eng.aspx?cas=34100. That is not a problem because the Supreme Court’s mandate, having granted leave, is to make the decision that ought to have been made by the lower court from which the appeal comes; or order a new trial if that is the proper decision (if the decision appealed from was “against the weight of the evidence); or remand the appeal or any part of the appeal to the court appealed from for additional consideration in accordance with the direction of the Court: the Supreme Court of Canada Act, R.S.C. 1985, c. S-26, ss. 44-46.1.

The Supreme Court panel in Clements could have three judges who were appointed to the Court after Resurfice was decided. It will if the panel is the full 9 member court. It will have at least 1 new judge if the panel is composed of seven judges. Justices Cromwell, Moldaver and Karakatanis are the new appointments. Justices Bastarache, Binnie and Charron have retired. Only Justice Cromwell has expressed a judicial opinion on the meaning of Resurfice in reported reasons for judgment. Only Chief Justice McLachlin and Justice LeBel J. remain from the panel that decided Walker Estate v. York Finch Hospital, [2001] 1 S.C.R. 647, 2001 SCC 23. Only McLachlin C.J. remains from the panels that decided Snell and Athey v. Leonati, [1996] 3 S.C. R. 458, 1996 CanLII 183.

A colleague’s comment about the granting of leave in Clements was “here we go”. My immediate reaction was to add “again”. I hope I am wrong.

On the other hand, the Continuing Legal Education Society of British Columbia's (CLE BC) first "Causation in Tort" conference was held in Vancouver in June 2008, about 1 year after Resurfice. "Causation in Tort II" was held in Vancouver in June 2011. It will probably be late 2012 or early 2013 before the Clements reasons are released, assuming that Supreme Court concludes that the case requires something more than a brief oral judgment. Assuming the Supreme Court does attempt, again, to clarify the jurisprudence, it will probably take a year or so before the Clements reasons will have been considered often enough by the provincial and territorial courts that clear trends will be apparent. So mid 2014 will be just about time for "Causation in Tort III" in Vancouver, in May or June. (If you've spotted a trend, you're right.)

For those who care about such things, the materials from both "Causation in Tort" conferences are very good* and reasonably priced. They are available through the CLE BC web site store. (No, I don't get direct kickbacks but if enough people by the material that'll probably hint at some reason for the next conference.)

(*Full disclosure – I was involved in the preparation of some of the materials in both conferences. The "Causation in Tort II"  material includes sample factums for a mock appeal to the British Columbia Court of Appeal that was part of the "Causation in Tort II" programme. The factums cover a wide range of issues. The unfortunate plaintiff – an otherwise successful British Columbia lawyer – somehow managed to develop both AIDS and mesothelioma, then be killed in a rather complicated motor vehicle accident while on his way to an appointment with one of his doctors. The appeal dealt only with liability.)

Social Media – networking and sharing of breaking news, gossip, pictures, videos, music, and just about everything else – has become a part of daily life for many people. Social media sites house this information about you, your firm, your clients and their businesses. Even if you don’t actively participate in social media, the information can be vital in fact gathering and monitoring. Let’s look at some of the available tools to make that happen.

Social Media Search

For researching what people are doing, saying, and revealing about themselves, searching social media sites is imperative. Blogs, YouTube, Twitter, Facebook, LinkedIn, Bebo, MySpace, Plaxo, and most other popular social media sites offer built in search tools. Lawyers should not forget these as valuable places to search, though they must be careful to avoid “pretexting” or using means to coerce or deceive someone into giving access to a private social media profile. Google’s primary search engine will pick up some social media content, primarily blogs and public LinkedIn information, as do Bing and other search engines. Google’s new Search Plus Your World adds content from your Google+ streams, if you are logged into Google. However, there are other ways to search multiple social sites en masse which may offer different and possibly better results.

While aggregate social media search engines are in their infancy, there are a few out there to explore. One is Whos Talkin, which aggregates search from many popular social networking sites. Another is Social Mention, offering a similar search function, and is significantly speedier and more effective than Who’s Talking.

For more focused social media searching sites like YourOpenBook (note: quote including profanity from Marc Zuckerburg on this page) that searches Facebook information that is not marked private, gives a deeper dive into Facebook. Similarly Twazzup and Topsy search Twitter, and Blinkx searches video content in Hulu, YouTube, as well as news and media outlets (note: adult filter is on by default).

Other sites offer people searches, and focus on finding people results in white pages, public records, business records and social media sites. These search sites include ZoomInfo, PiPL, YoName, Folowen, Snitch.name and Spokeo. Keep in mind that you will need to do additional research, as these directories match against name only, which is an inexact science. Additionally, similar “reality checks” need to be followed if you choose to use any of the public records searches available with some of these tools.

Social Media Monitoring

Social media management tools like Hootsuite, Social Oomph, and TweetDeck will help you monitor activity by keywords and account names in multiple social media channels. However, if your monitoring needs are infrequent or changeable, there are a number of social media search tools that offer alerts via email or RSS. In Addictomatic you can do a keyword search, and results are displayed in boxes for each of the social media outlets. You can even rearrange the boxes to put the sites you are most interested in at the top. Then simply bookmark the page in your browser and visit it again to see updated results. Kurrently searches only Facebook and Twitter, and offers an RSS feed for your saved searches. Social Mention offers alerts, and Whos Talkin has an iGoogle gadget.

Backing Up Social Media

While there are many ways to get back into social media content, the information is vast and fleeting. You may have a need to capture and keep social media content, either for your firm, or your client, as backup, as a record of interactions, or to ensure compliance with a social media policy. You may have heard of the “Wayback Machine” aka The Internet Archive, which records pages of certain webpages and archives them. The problem with this site is that it is inconsistent as to which sites it archives, and for how long. For lawyers who want to take control of monitoring and storing webpage content, enter Iterasi. This tool bills itself as a corporate compliance, litigation protection, compliance, and brand heritage tool. It is not free, but for lawyers and companies who need this type of service, it can be invaluable. It is a web archiving tool that will “scrape” the screens of even complex websites, as well as capturing RSS feeds, topics discussed in social networks, and any website the user happens to visit. The company provides several discrete products, one web archiving tool, a social media monitoring application, and a “notary” tool to archive individual pages on the fly. Similar to Iterasi, NextPoint’s Preservation Cloud crawls and archives specific web properties – blogs, social media sites, webpages. You can tag, export, and search the data collected. Like Iterasi, this is a “cloud” tool, so the data is stored on external servers, which does introduce some risk in using the service, while making it easy to sign up and get going as there is no installation or configuration.

Conclusion

Whether or not you are using social media as marketing or networking tool, lawyers can’t ignore the vast amount of information stored in these portals. Whether your needs are fact gathering, monitoring, or current awareness there are plenty of tools in the social media ecosystem to help you stay on top of the game.

I spent last week at LegalTech in New York. It was a huge, thought provoking, intimidating, useful, connected, and intriguing experience. I was sent to the conference to investigate software in some specific market segments for my firm, and it was very useful for making connections with vendors and surveying the landscape of available products. There were very few librarians in the crowd.

The LegalTech experience could lead someone to believe that the most important technology function in our industry is eDiscovery. Predictive coding was another theme that bubbled to the surface multiple times along with cloud computing solutions.

Contrast themes from LegalTech with CanLII's recently released Strategic Priorities. Simon outlined this document for Slawyers last week, but today the Edmonton Law Libraries Association hosted a lunch with Colin Lachance, CanLII President and CEO, follow him on twitter.

LegalTech's recurring themes, at least for me, of eDiscovery, predictive coding and storing and using information in the cloud are all about content, accessing and delivering content in efficient ways. CanLII's first three strategic priorities are all about content, accessing enriched content and delivering content in a manner that encourages continued use of this vibrant service.

My law firm library is about content, access to enriched content, and delivering content in a manner that encourages use of our library services. Legal technology and law libraries appear to be aligned along the same themes. Perhaps it isn't that weird to send librarians to technology conferences.

Early this year, the Department of Justice released, seemingly for the first time, a report titled "Costs of Crime in Canada, 2008" by Ting Zhang [PDF version]. Given the impending omnibus bill on crime and the likely large increase in the costs to the provinces from their associated responsibility for corrections, this report might be of some interest.

It consists, essentially, of a series of "appendices" that set out cost tables for, respectively, the criminal justice system, the victims of crime, third parties, and finally intangible costs (pain and suffering, value of loss of life) associated with crime. The overall costs are conservatively estimated as follows:

In 2008, the total (tangible) social and economic costs of Criminal Code offences in Canada were approximately $31.4 billion.1 This amounted to a per capita cost of $943 per year. . .

In the present study, it is estimated that the total intangible costs were about $68.2 billion in 2008, which increased the total costs of crime to $99.6 billion.

For many members of the general public seeking to understand the law, Wikipedia is the first and perhaps only stop. Others may go further and eventually come across equally accessible but considerably more reliable sources – online or otherwise. In any event, there is often a gulf between where the general public goes to understand the law and where the understanding is available.

Based on observations of a little experiment in contextual-linking, small efforts can go a long way toward bridging that gulf.

Contextual-linking is different from promotional or advisory linking such as is found on the "links" page of so many websites. I'm using the term here to describe links that pertain directly to the subject matter of the text in which the link appears. As I describe below, small efforts in building contextual links can redirect an engaged and curious person to valuable material.

There is no discovery or originality in my observation. In fact, I'm pretty sure Google and others are on to the idea. Innovation, if any, would come in the application of the concept to public legal education and, hopefully, in the scale of that effort.

A wee Wikipedia experiment

On December 23rd, I went to the Wikipedia article for the Criminal Code of Canada and in the "structure" section of the page where a prior editor had helpfully listed title of each of the 34 major parts of the Code, I embedded a hyperlink pointing back to the appearance of that part in CanLII's version of the Code.

It took about 15 minutes and had an astonishing impact.

December page view referrals from that article to CanLII were the highest of any month in 2011 of any of the over 2000 Wikipedia articles referring web traffic to CanLII. Relative to the Criminal Code article itself, December CanLII page view referrals:

• were three times greater than the prior most active month;
• equalled 45% of the Jan-November 2011 total; and
• represented over 1/3 of the 2011 total.

The momentum continued in 2012. Barely six days into the new year, total page view referrals from the Wikipedia Criminal Code article exceeded the December total and now demonstrate a daily pace that just prior to the experiment came only monthly.

In an attempt to confirm that the results were attributable to my experiment and not some external event, I examined overall referrals stats for other popular and related Wikipedia articles and saw no similar spikes or other evidence of general increases. To the contrary, as the Wikipedia site stats for article in fact showed lower than average visits since the time of my edits, including no visits at all on December 24th and 25th.

As a further step to confirm the impact of adding the links, late in the afternoon on January 2nd, I added the same sort of links to a different article (this time it only took 3 minutes) and observed an immediate six-fold increase in daily page views and attainment of the 2011 monthly average within 4 days.

Because CanLII is first and foremost a research tool, page views are primarily generated by users already on the site as they carry out their research and growth is therefore dependent on user satisfaction with the resource. Page views generated by referring links represent a tiny percentage of the total (typically in the 2% range) although the actual number of external referring sources is fairly large.

82 637 different external web pages sent traffic to CanLII in 2011 resulting in nearly 1.7M page views. Linked traffic from Wikipedia articles accounted for approximately 50 000 (or approximately 3%) of those page views. So while sizeable, increased traffic from Wikipedia will not move the needle much relative to CanLII's total page views (~80M in 2011), but I do hope people who discover CanLII as a result of a Wikipedia link will find some benefit.

Building bridges to understanding link-by-link

I will never know if the 18 minutes I spent adding legislative hyperlinks to existing Wikipedia text made any difference to the people who clicked on them. The statutes are no less impenetrable; the justice system is no less imposing. But I take some satisfaction in knowing that the engaged and curious people who clicked those links have accessed reliable information and may be one step closer to understanding the law. More to the point, I am now fascinated by the possibility of taking this idea further and enhancing Wikipedia text with links to not just primary law, but to secondary and explanatory sources where actual understanding is delivered through useful and accurate information.

Lawyers, assiduous linkers and charmingly pedantic* in their desire to validate their every utterance by reference to supporting authority for every point made, are natural bridge builders in this context. Imagine the net benefit to those who will continue to make Wikipedia their first stop in knowing the law if there were hundreds more bridges available that could lead people out of the morass? Imagine how easy it would be to do this if hundreds of legal professionals made a one-time, 15 minute effort to improve a Wikipedia law-related article by adding a contextual link to a reliable and freely accessible legal information resource?

If you take up the challenge, be sure to take a glance at Wikipedia's style guide and its rules for incorporating external links lest a transgression come to the attention of a zealous Wikipedian who comes in and erases your footprints after you leave. [I approached this in reverse and only learned of the rules after making edits. As it happens, my edits are possibly offside the rules but have yet to be undone].

Looking for a redirection target? 

In addition to legislative and case links, how about linking to a relevant article found on a government or PLEI (public legal education and information) website? [See my November column for a discussion of the PLEIs.] For general legal terminology and understanding and you might consider an article from the irreverent but thorough Duhaime.org. For criminal law you might consider an article from the site maintained by B.C. crown counsel Henry Waldock (though targeted to police officers as a primary audience, the text is written in plain language and very easy to follow). Maybe you know of other in-depth legal issues websites maintained by lawyers, professors or others?

Why should we care?

Though it probably doesn't need to be said, I will say it anyway. As governments and the PLEIs well understand, access to legal information and understanding is a critical piece in the broader societal goal of ensuring citizen access to justice. This goal should be shared by all legal professionals.

There is no denying Wikipedia's drawing power. If readers of this article set aside 15 minutes to add to a Wikipedia article a few of the missing links could bring its legally-inclined visitors closer to their objective of understanding the subject of their search, we could make a small advance toward our shared goal of ensuring access to justice.

Choose any article you like or drop me a line if you want suggestions from among the 2 237 Wikipedia articles already driving clicks from people trying to learn more about the law.

______________________

*As just such a pedantic lawyer, I humbly present my new favourite joke (sourced from too many places to mention): " A pedant walks into a bar. Well, it's a restaurant with a bar. Technically it's a brewpub since it has an onsite microbrewery …"

Julian Assange's extradition appeal was heard at the UK's highest court on 1 and 2 February. Assange is trying to avoid being sent to Sweden to face allegations relating to sexual encounters there in 2010. The key issue is whether a public prosecutor is a valid judicial authority.

Two things about this appeal illustrate the flexibility of what is wrongly thought to be a crusty, fossilized world. Both barristers in this extremely high profile case are women. And the proceedings were broadcast live from the court room. Here is an extract from the hearing.

And Simon Chester's post today reports an announcement that the court will start official tweets of judgments .

Not all fraudsters are strangers. Even partners, associates, law clerks or other employees may turn to fraud because of financial pressures from a divorce, failed business venture, or other personal crisis. Its usually the last person you'd expect, and often one of your most long-standing and trusted employees.

Here are the red flags:

• Someone never takes vacation or sick leave, works overly long hours, or refuses to delegate work.
• A firm member undergoes a sudden change in lifestyle or change in temperament.
• The firm receives mail for a corporation for which no client file is opened or billed, or minute books are kept in the lawyer’s office instead of with the corporate law clerk.
• Unusual patterns such as a sudden increase in payments to a person or credit card company or government, or complaints about slow payment from suppliers or clients, or an increase in written-off work in progress (WIP).

For more information, and directions on what to do if you have a suspected or real fraud, see “Fraud on the Inside: What to do when partners, associates or staff commit fraud” in the Winter 2008/2009 issue of LAWPRO Magazine at www.lawpro.ca/magazine

Library Boy told us last year about some tentative steps that courts were making to embrace – or to sniff around tentatively – the whole subject of social media. Today's announcement from the UK Supreme Court that it will start official tweets of judgments – this in anticipation of the Assange extradition decision – represents the first wholesale adoption by a final court of appeal.

It overshadows Chief Justice McLachlin's announcement within a speech at Carleton University on the Media and the Courts, that the Canadian judiciary should start to think seriously about social media.

See the Globe, the Star, CTV and the Halifax papers

You can see a brief video clip here.

I understand that the Australians may be thinking about the issues too.

Two weeks ago federal prosecutors in the US shut down MegaUpload, one of the most popular file-sharing sites on the Internet. The site was a widely-used "digital locker" that stored files for millions of users world-wide. Some of those users, however, used the side for illegitimate purposes, turning the site into a hub of what the US prosecutors characterized as "massive worldwide online piracy."

While there's no question large quantities of illegal, pirated material was successfully removed with the MegaUpload takedown, thousands of innocent users have lost access to their files as a result of the takedown. The legality of the takedown has been questioned by lawyers from around the world, and the Electronic Frontier Foundation has promised to take legal action against the US Government if data is not returned to legitimate users promptly.

When considering the risks of storing data in the cloud, becoming collateral damage from an over-reaching takedown order is not something the typical consumer will - or should – have to contemplate. The US Government deserves strong pushback on this kind of action, as other file storage services, such as Dropbox, Box and others – could face the risk of being summarily shut down because a subset of its users choose to misbehave.

The Strategic Planning Society recently posted on their Linkedin site the seemingly straight-forward question: “What is a good definition for vision?”

Now please keep in mind that this question is being posed within the fraternity of those who have fostered and perpetrated the belief that every organization should have a vision and that the organization’s leader should be a “visionary” – the originator of such a vision. A flurry of responses came from a community who hold titles like Strategic Planning Manager, Senior Resource Planning Manager, Head of Planning and Control, Senior Manager Strategy Solutions, Strategy Execution Advisor, Managing Partner, CEO, CMO, University Professor and so forth and included:

The position or status a company aspires to achieve within a reasonable time frame.

The vision is a concise measurable statement that defines the mid to long -term (three to ten years) goals of an organization. The vision should be external and market oriented and should express how the organization wants to be perceived by the world.

Vision – a smart ability to look behind horizon

The ability to stay in a balloon above your business, to see beyond the operational issues

"Vision" refers to an imagined state of affairs. All else is elaboration.

Vision consists of thinking ahead and ensuring that colleagues address the right issues.

Picture-painting by the Leader: We're going [over there]. We need to be there [by this time during a reporting-period].

These responses are coming from very smart, accomplished professionals. This question generated in excess of 65 postings over a one-month period without any real consensus amongst the 6800 members of The Strategic Planning Society of what a vision really is!

I believe one aspect of this notion of “having a vision” was confirmed by the recent (150 managing partner) interviews conducted by my UK colleague Rob Lees (co-author of When Professionals Have To Manage) where he related, in a discussion with me:

The managing partner of one of the firms we talked to explained how he had come back from Harvard Business School’s Leading Professional Service Firms program with renewed energy and a determination to drive the firm forward. So, he outlined his vision of moving the firm from its regional base to becoming a leading national firm to his partners and talked about what they needed to do to get there. But, to his abject disappointment, nothing happened. To the partners, the vision was just too aspirational; achievable only through a merger, which they felt they would be on the wrong side of. Concerned about the lack of action, the managing partner visited all of the offices to talk through the plans and, during these visits, the partners’ concerns surfaced.

Meanwhile, in his new book Great By Choice, Jim Collins tells us that his findings dismiss several closely held business world beliefs . . . such as the notion that successful leaders are “bold, risk-seeking visionaries.” Rather, Collins concludes that the most successful leaders are “disciplined,” “empirical” and “paranoid,” building on verifiable results and constantly anticipating what could go wrong.

It is my (personal) strong belief that this constant talk about "needing to have a vision" is just NONSENSE and something that managing partners have elicited from various books on leadership. Partners definitely NEED to have some sense of shared direction (where are we going?) and that shared direction needs to be facilitated by an effective leader; but I find that this idea that in order to be an effective firm leader, you need to articulate a vision, is just not grounded in any reality.

Remember mission statements? Mission statements first came into vogue in the 1990’s. A single-page document filled with more platitudes than you’d find in the average prayer book, spelling out your firm’s business mission. No one remembered the darn things, it was business as usual, and the document didn’t have the profound impact on the fortunes of firms that their creators had hoped for. The mission statement exercise was quickly forgotten — except at those few firms who chose to have them laminated as cards for every professional to keep in their wallet.

Then we were instructed on how every firm needed "a vision." It was a new name, but quickly became the same old silly exercise. All your skeptical partners exchange winks and knowing glances. The Executive Committee will have to be indulged one more time. In all cases the result was to be the same — having a vision changed nothing. I am not aware of one single firm (and certainly not among those achieving above-average performance) who have invested partner time in developing a mission or vision statement.

And I have for years challenged lawyers at multiple legal conferences to please give me just one example of a law firm, anywhere, wherein a firm leader proclaimed a vision and had all of his or her partners excited, eager to move forward and behaving in concert with that articulated vision. I have yet to find one real live example.

Looked at slightly differently . . .

Visionaries tend to narrow their attention onto those phenomena that appear relevant and supportive of their visions. They can, therefore, appear impatient, dismissive and intolerant of any information or ideas that may appear to challenge or question their vision (“don’t confuse me with the facts”). While having a vision may be nice – in a complex world, visions require a psychological sophistication that many of us mere mortals lack. A true vision contains a paradox in that it is not an expression of truth, nor is it necessarily right, but your vision must be treated as though “it was right.“ The thing to consider is that a true vision requires that you have a view of the future that isn’t necessarily supported by evidence.

(And with tongue firmly implanted in cheek): I don’t know about you, but my academic education in social psychology taught me that an individual having visions . . . unsupported by evidence . . . was usually a clear sign of someone who had lost touch with reality!

Congratulations to law firm Harrison Pensa in London, Ontario who have just relaunched their website. While launching a new site is not necessarily newsworthy (well, unless you are a member of the firm itself), in this case HP have used some fresh thinking which makes this redesigned site stand out.

A few features of the site:

• the look of the site is bold, personable, and still professional
• rather than stock photos, they feature their own lawyers prominently
• lawyer bios include links to their lawyers on social media sites (notably LinkedIn) and also allow for readers to share the bios across the web with a social media "share" button
• they have three blogs on the site (HP Business, HP Community, and Students), again with share-ability
• they are one of the few law firms taking advantage of the popular software WordPress.

Why is it interesting that they are using WordPress? WordPress is a free, Open Source platform that has become widely adopted around the world both for blogs and for websites as an easy-to-use content management system (CMS). According to Matt Mullenweg (WordPress originator) last August in his "State of the Word" report, WordPress is running on 15.5% of all websites, and accounts for over 54% of CMS marketshare. 22% of domains registered in the U.S. are running WordPress. That is a huge adoption rate, and yet law firms have a tendency to look for something other than this obvious solution. So, kudos to HP for joining the "cool kids" in using WordPress. It makes sense to use something that is widely known, and has a community around it for support.

HP are also tying the launch of their new website in with a campaign to raise funds for the London Food Bank. For every person who "likes" their Facebook community page, they will be donating a pound of food to the food bank. Kudos on this idea to give back!

For a more in-depth discussion of why the Harrison Pensa website is significant, see also Jordan Furlong's post on the Stem Law Firm Web Strategy blog from February 1st.

Back at the end of the last millennium, the Centre de recherché en droit public (CRDP), along with colleagues from the Centre de recherches informatique et droit (CRID) and the Centre national de la recherche scientifique (CNRS) obtained a research grant from the European Commission’s Directorate General for Health and Consumers to develop what would become the ECODIR (Electronic Consumer Dispute Resolution) ODR platform.

Launched in Brussels in October 2001, the ECODIR platform was well received by the various stakeholders: consumer associations, professional associations, industrial groups, the public sector, the European Commission, etc. The technical aspects of the application were praised, as was its user-friendliness and the ease with which the parties can negotiate directly with one another, without the intervention of a third party. Yet, despite these facts, the ECODIR Project has never really taken off. Hosted at the Faculty of Law of the University College of Dublin, Ireland, the ECODIR platform is still available on the Internet, but only handles a handful of cases annually.

Although the European Commission made what we believe were a series of mistakes in the early stages of implementing the platform – such as diverting funds towards third-party projects that never came to fruition or not following through with its original plans, which including labels and partnerships with major European commercial sites –, all of which have undeniably had a role to play in the lack of success of this enterprise, ECODIR mostly serves as a cautionary tale regarding the issue of funding online dispute resolution systems. In the early part of the first decade of the new millennium, many websites claiming to offer online dispute resolution services appeared. Yet, aside from SquareTrade, which was able to take advantage of a captive market in the form of the formidable armada of buyers and sellers on eBay, few of these services found the necessary financial backing to develop functional ODR platforms and to make their systems strive.

There are only two viable ways to address the ODR funding question. The first is to have the ODR provider be financed by a benefactor, whether public or private. Public models are popping up in certain areas of the world, the small claims experiment in British Columbia being one of the latest examples of this trend. But, since the Internet is transnational in nature, it remains difficult to see how a single state can offer this type of service to cross-border disputes, especially when neither litigant has any connecting factors (to use the terminology set forth by the Supreme Court to establish competence for online disputes) with said state. Furthermore, even if foreign litigants chose to use a platform offered by, for argument’s sake, the Canadian government, it would be difficult to justify such an expense to Canadian taxpayers, especially in these difficult economic times. The burden of funding ODR therefore rests on the private sector, which, as the last decade has shown, doesn’t seem keen on investing in the field. Other than eBay — whose system is incorporated into its auction service, and therefore reserved for its members — major Internet stakeholders have yet to agree to open their wallets to facilitate the establishment and operation of online dispute resolution systems.

Since ODR operators cannot count on public or private funding to cover their costs and generate a profit, the only remaining option seems to be to have participants pay user fees. This business model is currently being used by most "classic" ADR services, yet doesn’t seems to be well adapted to high volume, low value cases such as those put forth in online B2C cases. Why would consumers chose ADR when the value of the dispute is less than the cost of arbitration? Of course, this only applies for those few cases where parties cannot resolve their dispute themselves through the help of the platform and, therefore, would need to rely on the intervention of a third party to decide the outcome of said dispute (a scenario that is relatively uncommon if one relies on statistics regarding ODR). However, even if arbitrator salaries do not come into play, operating costs relating to hosting services, system administrators and general upkeep still need to be factored into the equation. Furthermore, since there is strong opposition from the international community to the idea of consumers having to pay even a nominal fee to have access to ODR services (this position seems to have been adopted by most delegations taking part in the UNCITRAL Working Group on Online Dispute Resolution for which the CRDP has observer status), there is only one option left, and that is to have the online business community bear the blunt of ODR costs.

As Michael Geist demonstrated back in 2001 in his “Fair.com” paper, this option, of course, raises serious questions regarding the neutrality of ODR providers and administrators. If one party pays all of the provider’s bills, there is a risk of partiality. This problem was more recently brought to light with the National Arbitration Forum scandal regarding credit card disputes where “Only 0.2% of consumers won their cases in California when NAF was involved”, a situation many commenters attributed to the fact that corporations with controlling interests in the NAF were also linked to a debt collection agency.

A similar argument could technically be made against what is often referred to as the most successful example of ODR, i.e. the eBay Resolution Center (the system which replaced SquareTrade in 2008). Since eBay funds its platform through monies received from its sellers, one could argue that the service could show a bias towards the later (although we know of no statistical evidence supporting this claim). However, we submit that such an argument remains farfetched since eBay members can both sell and buy, and therefore the line between merchants and consumers is not as well defined as it would be in classic ecommerce situations. Furthermore, as eBay has millions of members, it seems doubtful that even the biggest of PowerSellers could have that much influence on the website. Of course, since some Courts no longer view eBay as a neutral marketplace (in France for example), but rather as a partner to its sellers, there is a risk that, whether it is warranted or not, consumers start to feel that the deck is stacked against them…

In 2012, there are few that would still claim ODR is not a useful tool to solve online commercial disputes, especially with regards to high volume, low value disputes, such as those most commonly seen in B2C cases. Most courts recognize ODR settlements as binding, platforms such as SquareTrade and ECODIR have demonstrated that the technology can actually help reach a settlement more easily and at a much lower cost than classic ADR services ever could, and the steady climb in computer literacy and cross-border ecommerce suggests that more consumers should chose this means of settling disputes in the near future. All that remains for ODR to prosper is to settle the financial question.

More than a decade after funding the ECODIR project, the European Commission is getting back into promoting ODR with a Proposal for a regulation of the European Parliament and of the Council on online dispute resolution for consumer dispute. According to the Proposal, the Commission would develop and host "an interactive website offering to consumers and traders a single point of entry for the resolution of contractual disputes arising from cross-border e-commerce transactions". The site would serve a hub where consumers and retailers could choose an ADR provider to settle its case. Although the platform itself should be funded by the European Commission, it remains to be seen how ADR providers who chose to take part in the endeavour will find a way to develop systems that can interact with the platform, offer competitive ODR services and make money considering the low values at stakes. Hopefully, unlike with the ECODIR project, the European Commission will find an economic model to ensure the overall system prospers. Otherwise, as the song goes, it's all just a little bit of history repeating.