December, 2016 Archives – Slaw
Canada’s online legal magazine.

Archive for December, 2016

Defending Rapists

Lawyers who defend people accused of sexual assault tend to be subject to one of two narratives in popular conversations, particularly on social media:

The critical narrative: Sexual assault is a violent and under reported crime. Our criminal justice system further victimizes complainants by treating their claims with unwarranted skepticism, and by degrading them both during the investigation of the crime and during the trial of the accused. Lawyers who represent an accused in sexual assault cases engage in morally suspect conduct, except in those (rare) cases where the accused is factually innocent. They directly participate in the victimization . . . [more]

Posted in: Legal Ethics

Impending Importance of Patent Office Procedures to Canadian Patent Litigation?

A recent decision of the Federal Court[1] explicitly and repeatedly criticized a lottery ticket patentee for taking a “remarkable” “breathtaking” position on construction in an infringement action that was “entirely opposite” with prior representations to the Canadian Patent Office. At the same time, the court refused any inference of a “greater presumption of validity” because the patent had withstood 12 protests over 13 years brought by the impeacher/alleged infringer, and surprisingly (although reluctantly) accepted the patentee’s “new” construction approach in any event. The court found Scientific Games’ patent for lottery ticket codes to be obvious, ambiguous and not infringed . . . [more]

Posted in: Intellectual Property

Police Access to Recordings of in-Home Computer “assistants”

A lot of people now have computers they can talk to and get answers from – Siri, Alexa, Cortona, etc – not to mention interactive talking dolls.

A man in Arkansas was recently charged with murdering another man in his home. The accused person had a number of such devices in his home, including an Echo device made by Amazon. While the device is set up to activate itself when addressed in a particular way, or by name, sometimes they record in other circumstances.

The police have asked Amazon to turn over any recording made during the relevant period. . . . [more]

Posted in: Justice Issues, Technology: Internet, ulc_ecomm_list

Resilience

Resilience is the ability to adapt or ‘bounce back’ from negative experiences such as criticism, rejection or significant sources of stress arising from family issues, health problems and, as lawyers, all of the stressful elements that we face everyday in the workplace.

While each of us is born with a certain degree of resiliency, environmental factors can also influence our ability to move past difficult life experiences and recover more quickly. As a result, some people are highly resilient while others are not, if at all. Unfortunately, studies have shown that lawyers overall have low levels of resilience which likely . . . [more]

Posted in: Practice of Law

Why Face Time Matters More Than Ever

No, not the Face Time app on your iPhone, “face time” as in one-on-one meetings with direct reports and others in your firm.

As organizations pursue efficiency by automating processes, collecting loads of data and creating “lean” teams, more of us are deliberately disengaging from our work.

And we often blame management when things don’t improve. Bad management, to be exact. A 2014 Gallup poll showed that companies fail to hire proper management 82% of the time. Ouch.

What exactly makes a “good” manager? Harvard Business Review recently published a summary of research done in studies of knowledge-based . . . [more]

Posted in: Practice of Law, Practice of Law: Future of Practice, Practice of Law: Practice Management

Tips Tuesday

Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on research, writing, and practice.

Practice

3 Reasons to Embrace Uncertainty in 2017
Jackie Porter

It seems there is never a shortage of bad news going around. 2016 has certainly had its share. Brexit, the unexpected presidency of Donald Trump, corporate restructures, not to mention turbulent financial markets. Most people approach the New Year with excitement and hope. However, what happens after the first bit of bad news hits your world? Whether its job loss, . . . [more]

Posted in: Tips Tuesday

Delay in Adjudicator Appointments: Crisis, What Crisis?

In 2016, there was a small flurry of concern about the delays in appointments of judges by the federal government. In early December, the Ontario Auditor General highlighted delays in the appointments of Order in Council appointees (adjudicative, regulatory and advisory positions) of up to 16 months. This did not receive much, if any, media attention. The impacts on the administration of justice and on access to justice as a result of delays in appointing of adjudicators can be significant.

There are 3,647 appointees in Ontario (as of July 2016). Of these, there are 47 adjudicative and regulatory entities that . . . [more]

Posted in: Dispute Resolution

What Do Title Insurers Expect From Lawyers?

Still relatively new in Canada, title insurance is not fully understood by many consumers. Even certain less-sophisticated lenders lack detailed knowledge of the product. The responsibility for explaining title insurance to those who purchase it – and for supporting insureds in obtaining coverage that suits their needs – falls squarely on lawyers’ shoulders.

Lawyers are also responsible for communicating accurately with the proposed insurer about the details of a real estate transaction, the property to be purchased, and the expectations and needs of the purchaser and lender.

At the Law Society of Upper Canada’s recent Real Estate Summit, LAWPRO’s Vice . . . [more]

Posted in: Reading: Recommended

Monday’s Mix

Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from seventy recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. Administrative Law Matters  2. The Court 3. FamilyLLB  4. Legal Feeds  5. McElroy Law Blog

Administrative Law Matters
Law’s Abnegation by Adrian Vermeule

I have not mentioned as many books and articles as I would have liked to over the course of the year. Let me try to make . . . [more]

Posted in: Monday’s Mix

Malicious Accusations of Lies Against a Lawyer More Than Opinion

The much anticipated appeal in Awan v. Levant was released today by the Ontario Court of Appeal. The Superior Court of Justice decision, now largely upheld on appeal, was important because it deals with defamation against a lawyer, but also provided salient points for understanding the nuance of online defamation in the modern era.

Central to the plaintiff’s claim of defamation was that he was referred to as a liar by the defendant. Justice Feldman, for the court, referred to paras 26-27 of the Supreme Court of Canada’s decision in WIC Radio Ltd. v. Simpson,

[26] … Brown’s

. . . [more]
Posted in: Substantive Law: Judicial Decisions

Reports of the Death of American Law Firms Are Greatly Exaggerated

Data are recorded about much that we do these days. We all leave a digital trail. The resulting data are a rich source of insight, but in their raw form, they don’t tell us much. We need to analyze data properly and methodically to make sense of it.

The recent poor performance of opinion polls in both the UK’s referendum on remaining in the European Union (“Brexit”) and the US Presidential election left me wondering what they tell us about our dependence on data analytics? Sometimes the models, and the assumptions underpinning them, need to be questioned.

In the case . . . [more]

Posted in: Legal Information

Thursday Thinkpiece: Tang on Trauma in Legal Practice

Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

Being Well in the Law: A Guide for Lawyers

© 2016 The Law Society of New South Wales | Authors: Tony Foley, Ian Hickie, Vivien Holmes, Colin James, Margie Rowe and Stephen Tang

Being Well in the Law is a new Australian guide on wellbeing and mental health for lawyers. It has been . . . [more]

Posted in: Thursday Thinkpiece