Un peu difficile de choisir la session quand il y a trois sujets thématiques parallèles..! C'est le cas d'ailleurs aujourd'hui toute la journée, sauf pour les plénières. La session en rubrique est populaire la salle est comble! C'est vraiment un sujet d'actualité qui intéresse beaucoup les participants.

Nicolas Vermeys, de l'Université de Montréal, a ouvert la session avec une mise en contexte. Nicolas mentionne que plus de 7,000,000 de Canadiens sont présents sur facebook, selon le Commissaire à la vie privé, rendant ainsi ce site le plus populaire au Canada. C'est pourquoi sa présentation est principalement axé sur facebook et la jurisprudence en découlant.

Nicolas considère deux scénarios possibles:

• facebook comme élément de preuve, et
• facebook comme lieu de commission d'un acte illicite.

Parmi la jurisprudence recensée et discutée par Nicolas:

• Preuve d'un comportement frauduleux
• Preuve du non-respect d'une obligation
• Preuve de "moralité"
• Diffamation
• Sollicitation / Leurre

L'admissibilité en preuve d'une page facebook et de ses éléments dépend de la façon dont l'information a été obtenue. Si l'information provient d'une page publique ou d'une page accessible par un "ami", l'admissibilité ne pose généralement pas problème. Cependant, quand l'information est obtenue de façon illicite, la jurisprudence est divergente. Certaines décisions assimile facebook à un journal intime (quand le profil est privé), en conséquence, admettre en preuve des éléments d'information obtenus de façon illicite déconsidérerait l'administration de la justice au sens du droit civil au Québec. D'autres décisions assimile facebook à un site web et admette les éléments de preuve provenant du site.

Patrick Gingras, de la direction générale des affaires juridiques et législative du Ministère de la justice du Québec, continue la session avec le cas particulier d'une personne ayant rendu son profil complètement privé. Comment obtenir l'information de la page facebook?

• Faire une demande de préservation de preuve (à facebook)
• Obtention d'une ordonnance judiciaire ex parte
• Exécution de l'ordonnance judiciaire

Certaines informations sont plus difficiles à obtenir de facebook, par exemple, quand une connexion a été ajoutée, l'adresse IP utilisée à une heure précise pour avoir accès à facebook, bref, les informations découlant des interactions avec le site facebook. Combien de temps facebook conserve-t-il les informations d'un compte? Cela dépend si le compte a été "désactivé" ou "supprimé". Dans le premier cas, facebook possède encore l'information. Dans le deuxième cas, facebook garde l'information pour une période de 90 jours après que le compte est supprimé.

Patrick a ensuite couvert plusieurs cas où les tribunaux on émis des ordonnances de préservation de preuve.

La pratique courante de facebook en ce moment exige qu'une ordonnance rendue par un tribunal québécois soit entérinée par un tribunal fédéral américain. Patrick mentionne la possibilité que cette exigence pourrait être contestée.

Fait intéressant: facebook permet maintenant de télécharger l'intégralité de d'un compte par son usager.

(billet aussi publié au CCTJ)

Gordon Ross, Vice-President of ThoughtFarmer, opened his 13:30 session today by asking: "Is knowledge loss really an issue?" The annual average industry turnover rate is 35.7%. When staff leaves you lose both what they know (technical knowledge) and who they know (social knowledge). Intranets are not good for retaining knowledge and enabling users to find it, in one intranet survey asking "does your intranet search usually help you in finding what you are searching for", 85% of professional respondents answered "No".

Typical problems arising from knowledge management include:

• Just because it is captured does not mean it will be found, and
• Explicit knowledge is only the tip of the iceberg.

Gordon presented some solution principles to knowledge loss: remove roadblocks to content creation, and work in the flow – not above it.

He explained how knowledge retention processes typically ignore who is involved and how to get things done. This is counterproductive, because that information is often more important than the final work product captured by Knowledge Management systems. Better solutions include "brilliant people directories", in which people are tied to their expertise and location, and social context is added to content creation.

Dominic Jaar took over the session en francais. Dominic a présenté le principal défi qu'il rencontre, avec ses clients organisationnels, est de trouver et gérer l'information à valeur ajoutée, celle qui inclut contexte et information critique. Ce défi est souvent présent car toute information est peu ou pas gérée, alors trouver une sous-catégorie d'information (celle à valeur ajoutée) est très difficile, voire impossible.

Dominic considère qu'il faut considérer trois facettes pour réussir à mettre en place avec succès de bonnes pratiques de gestion d'information: culture, politique et technologie. Il n'est pas suffisant de gérer la technologie. Il faut mettre en place plusieurs politiques et protocoles (e.g. politique de gestion d'information, politique d'utilisation raisonnable, politique de gestion documentaire, politique de sauvegarde de l'information, protocole de classement, politique d'archivage, indexation de l'information, protocole de destruction de l'information, etc.)

(cross-posted on CCCT)

Moving on to the 10:45am session this morning in Montreal, at the LegalIT 5.0 Conference, James F. Ring from Fair Outcomes tackled the topic of managing and resolving legal disputes online.

James introduced the problem with some thought provoking facts:

• only 5% of cases make it to trial
• the vast majority of cases settle within 30 days of the first day of trial, and
• 80% of cases that do settle do not settle until the day before the trialuntil they are in a "30 days before the first day of the trial" window.

One explanation for the long pre-trial delays and high rate of case settling just before trial consists in viewing the litigation process as an information exchange process, up to and leading to trial, where information on liability and damages has been fully exchanged.

James presented some insights on the litigation process flowing from game theory. The vast majority of cases settle when the parties get to a point where it is in their best interest to settle and when they perceive that the opposing party is in the same position. Before that point, there is "a lot of posturing". James defined game theory as follows:

Game theory is the science of strategy and independent interdependent decision making using principles of logic and mathematics.

Game theory applied to legal dispute resolution stems from the belief that once conflict is understood to be rational, credible ways can be found to reduce and resolve them. James offered a succinct conceptual and historical perspective on topic, and presented some of these "credible ways":

• I cut, you choose: one party proposes a division, the other party chooses
• Ultimatum Game: one party unilaterally proposes a deal, one time only, and the other party is free to accept or reject it. If the ultimatum is rejected, there is no deal and no possibility of further negotiation
• Focal Coordination Game: each party proposes a deal through a third party. The parties involved in the negotiation are not in touch with each other, only the third party receives both proposals. If both proposals match, a deal is made, otherwise there is no deal

James then "showcased" some Fair Outcomes Inc. online dispute resolutions systems, including the Fair Buy-Sell Agreements and the Fair Division System (see also the YouTube video on topic).

Note: corrections were made at the request of the conference speaker.

(cross-posted on CCCT-CCTJ)

Blogging live from the Legal IT 5.0 Conference in Montreal, I am attending the session on crowdsourcing and the law which started at 9:30am, frankly, because I was intrigued by the title… Crowdsourcing the law?! Marcel Naud, from ROBIC, opened the session by defining crowdsourcing as:

The act of taking a job traditionally performed by a specific agent and outsourcing it to an undefined, generally large group of people in the form of an open call

Marcel presented several examples of crowdsourcing, including istockphoto , quirky and innocentive, before the session moved on to how crowdsourcing is pertinent to the practice of law.

David Gold from Spindle Law then took over the session and explained crowdsourcing as a general social phenomenon and some of its most known manifestations, like Wikipedia. David suggested that a good legal example of a wiki would be Wex.

David provided us with some Law specific crowdsourcing examples:

• LawPivot: connecting California lawyers and companies
• Stack Exchange: a Q&A platform with field specific sites, starting to include some preliminary legal sites. The platform includes a reputation system
• Spindle Law (disclaimer – this is the employer of David Gold): currently a US only law site, Spindle law is interested in expanding to Canada and David welcomes any such inquiries
• JD Supra: the site allows its users to create an online portfolio of articles, newsletters, court filings, and presentations, the idea being to get noticed by prospective clients, colleagues and the media, and
• Peer to Patent: this site enable users to help the US Patent and Trademark Office (USPTO) to find the information relevant to assessing the claims of pending patent applications. Community members can review and improve the quality of patents.

Some issues, challenges and opportunities were presented by David, including:

• Contributors are mostly amateurs - The Rise of the Amateur, and
• Crowdsourcing may mean that less lawyers will be needed to resolve any given legal problem, and that overall, less lawyers may be needed.

That last point is sure to raise some eyebrows… which is a good reaction to an interesting session (!)

(cross-posted on the CCCT-CCTJ blog)

Blogging live from Montreal at the LegalIT 5.0 Conference, the Conference opened with a plenary session on the subject topic, by Richard S. Granat, Co-Chair, eLawyering Task Force, American Bar Association, launched in 2001. Richard founded one of the first virtual law firms in North America and is well chosen to speak on topic.

Richard opened the Conference by stating vast trends in the legal world:

• When legal services are concerned, the delivery platform is shifting. What do clients want? Expectations are evolving… One of them is fixed pricing. That pressure alone is putting pressure on law firms to rethink how they package legal services
• Clients want transparency. They want to know the details of how they will be billed, they want detailed, itemized information on invoices
• Clients want convenience
• Clients want better technology, to enable lower prices
• Clients want legal services à la carte (unbundled legal services)

All these trends are accelerated by the new web generation, a generation that does everything online. That latent market is evaluated at $45 billion in the U.S. alone. Richard discussed the Legal Zoom example, a paralegal company providing a turnkey will preparation (without legal advice) service. At 1,000,000 wills, their market share has grown to +$60M in revenue, and they are starting to eat in the traditional market of small law firms.

Only 52% of Solos have a web site in the U.S. this figure is considered by low by Mr Granat. Low, because about half of consumers expect their law firms to provide online access, information and services, going beyond the "passive brochure", allowing an interactive client portal.

Virtual lawyering is much more than having a static web site and communicating by email. It is using Internet technologies to their fullest potential, including web advisors, smart calculators and other client tools. Richard presented several examples of such technologies, including the SmarterWill Web Site example.

In terms of ethical issues, Richard says they are the same for real world lawyering and eLawyering. A law firm has to map their unique expertise into an effective online presence and brand: differentiation of services, remarkable expertise unbundled and a conclusive client experience. Richard predicts that in the next 5 years, every law firm will have some kind of client portal.

To learn more about eLawyering:

• eLawyering Task Force: http://www.elawyering.com
• Virtual Lawyering Learning Center: http://www.directlaw.com/learningcenter.asp
• http://www.virtuallawyerconnect.com

Richard concluded by challenging the audience to learn about these technologies, use them and to occupy our knowledge space in the Internet!

In a previous post, I have outlined a draft Request for Proposal structure (RFP) in relation to courts securing services to develop, deploy and manage a web site designed in accordance with the CCCT IntellAction Working Group Guidelines on Court Web Sites.

In this post, please find our draft evaluation criteria in relation to the RFPs.

Web Content Management System (WCMS) RFP Evaluation Criteria

The following criteria are suggested for inclusion in the WCMS RFP. They should be expanded and tailored to each court and context. Courts should decide which criteria are mandatory, which are weighted and, in the latter case, the weight accorded:

• WCMS – Viability: How extensively is the recommended WCMS used on the web to power comparable web sites (in terms of richness of content / languages / structure / number of registered and concurrent users)? Does it have a large developer pool from which the court could draw for development services? Does it have a regular upgrade cycle? Is it free (the WCMS itself)? Does it have a dynamic and easily accessible developer community in which all problems and concerns are responded to quickly and acted upon?
• WCMS – Autonomy: Once the initial site is delivered and configured, does it provide an easy interface (GUI) for the client to manage user and content permissions, content approval and translations, etc., without having to resort to the developers?
• WCMS – Adherence to Principles: to what extent does the recommended WCMS adhere to each of the principles laid out in Part III of the current guidelines? What development efforts are required to meet those principles – does the proposed WCMS meet them “out-of-the-box”, or significant customization and/or configuration is needed?
• WCMS – Costs: are the development costs fairly predictable and do they provide good value for money? Is the developer willing to stipulate a fixed price contract?

Solution Provider RFP Evaluation Criteria

The following criteria are suggested for inclusion in the Solution Provider RFP. They should be expanded and tailored to each court and context. Courts should decide which criteria are mandatory, which are weighted and, in the latter case, the weight accorded:

• hosting platform – robustness: How secure is the proposed hosting environment in terms of confidentiality (preventing unauthorized access to the server), integrity (preventing unauthorized changes to web site information) and availability (ensuring a hosting architecture providing high availability to users)?
• solution provider – WCMS knowledge: Does the Solution Provider have internal resources that are knowledgeable about the court web site WCMS? Please note: If web site problems are experienced, they can be due to the WCMS itself, the hosting environment or both. If the Solution Provider is knowledgeable about the WCMS itself and provides end-to-end support services (covering both WCMS and server) for the web site, the Court can ask the Solution Provider to be accountable for web site end-to-end troubleshooting and resolution, which is ordinarily not possible with straightforward web hosting services
• solution provider – Service Level Agreement (SLA): Does the SLA reflect a clearly accountable Solution Provider for court web site troubleshooting? Does the SLA provide for a timely resolution of reported problems?
• solution provider – costs: What are the fixed yearly costs for maintaining a secure, up-to-date hosting environment? What are the fees for WCMS ad hoc development services, if available?

The guidelines have the following objectives:

• to enable a common understanding and context of what modern web sites offer and how they are powered (Part I)
• to identify and review issues that are specific to court web sites, as opposed to web sites in general (Part II)
• to develop a principled approach to court web site development (Part III)
• to make specific recommendations on the modernization of court web sites based on modern web site context, court web site issues and selected principles (Part IV)

Part V of the guidelines facilitates adoption of the recommendations in Part IV by providing tools to help courts make the best decisions and secure the right resources, especially if a new platform (software) or solution provider is deemed necessary to power the court web site.

Below, I am sharing our draft on topic. As usual, I'm grateful for any comment or suggestion you may have – merci!

Court Web Site Requests for Proposals (RFP’s)

If a change in web site platform is desired in order to meet the current guidelines, there are two potential RFP’s to consider:

• a Web Content Management System RFP
• a Solution Provider RFP

The Web Content Management System RFP is necessary if the court wants a new platform to run the court web site. The objective of this RFP is to secure the services of a team of developers that will deliver a complete web site adhering to the principles laid out in the current guidelines. Once the web site has been developed, that team of developers should no longer be needed.

The Solution Provider RFP is necessary if the Court wants to outsource the hosting, backup, management, operations and maintenance of the court web site. The Solution Provider can be, but does not have to be, the winning bidder of the WCMS RFP.
Courts that are prepared to internally host and manage their web site do not need a Solution Provider, but they will need dedicated resources to manage the web site.

The Web Content Management RFP and the Solution Provider RFP suggestions below are provided with the following assumptions in mind:

• the court needs a new platform to manage its public web site and wants a Web Content Management System to provide this platform (in accordance with recommendation #1 of the current guidelines)
• the court wants to choose a stable well known platform with a large number of developers experienced in applying, implementing and maintaining it in order to: (a) prevent any lock-in or dependency towards a particular Vendor; and (b) ensure that many hosting options are, and in the future remain, available

Web Content Management System (WCMS) Request for Proposal (RFP)

The CCCT recommends that the WCMS RFP contain the following elements:

• overview section: purpose of the RFP, summary of requirements and approximate value of contract
• background section: stating the court web site history and its current modernization objectives
• contact section: court web site contacts with details of their roles in relation to the court web site project
• submission format and timeline section: specifies to interested bidders the proposal format for submission, the timetable for responses and clarifications, evaluation period, contract award and contract start and end dates
• client knowledge section: specifies to interested bidders how many “internal knowledge workers” and resources will be committed to this contract to work hand-in-hand with the chosen developer. This section is necessary because it lets bidders know how to prepare and adjust their proposals accordingly. The proposal can vary significantly if in-house technical resources are identified to work with the developer from the beginning. If no such resources are available, this should be specified
• requirements section: outlines to interested bidders what their proposal must contain. This section should ask interested bidders to include in their proposal
  • the proposed, named Web Content Management System and why the bidder recommends this particular product
  • their approach and work plan for this contract
  • how their development efforts will minimize later update and upgrade costs
  • 3 design / theme proposals (if wanted by the court) – note: this is the look and feel of the court web site
  • evidence of capability – bidders to provide at least two examples of similar complex sites successfully delivered to clients willing to act as references
  • resources – bidders should name and present the team who would be committed to this project
• deliverables section: outlines the deliverables due under contract and the associated timetable. Deliverables should include:
  • a Theme Proposal (proposed visual depictions of the web site, typically shown to the client as mockups, and which precede any theme development)
  • a Web Site Proposal (presentation outlining proposed web site functions, characteristics, content types, navigation system, user and content permission system, interactivity features, etc. – this precedes any coding of the web site)
  • a Theme (completion of the theme as per client approval of one proposed mockup)
  • a Web Site (completion of the web site as per client approval of the web site proposal with adjustments, if applicable)
  • a Final Report (the information needed to perform future updates, upgrades, further development and/or customization, transfer of site to alternative hosting platform, backup and restore strategy, etc.)
• search Engine Optimization section: requests bidders to outline their approach to correctly provide web site content to search engines (or to not expose some content – if so desired by the court – e.g. judicial decisions)
• migration of Content and Users section: if the court wants the bidder to include efforts related to migrating content and/or users from a legacy court web site or other information source, the RFP should ask the bidder to outline their approach in this section
• terms and Conditions section: bidders are to include the contract value in terms of fixed price and/or hourly billing, payment terms, copyright in works delivered and warranty and support conditions
• evaluation Criteria: see section C, Part V of the guidelines.

Solution Provider Request for Proposal (RFP)

Upon completion of the above contract, the Court is in position to inherit a fully functional court web site. At that point it may prefer to host and manage the new web site internally, or to outsource the hosting and management to a third party herein referred to as a “Solution Provider”.

In the latter case, a distinct RFP containing the following sections should be issued:

• overview section: states the purpose of the RFP, summary of requirements and approximate yearly value of the contract, if known
• background section: details the court web site platform, content, usage and hosting specifications
• contact sections: Court contacts and their roles in relation to the court web
• submission format and timeline section: specifies to interested bidders in what format the proposal should be submitted, the timetable for responses and clarifications, proposal submissions, evaluation period, contract award and contract start and end dates, with renewal options
• a client knowledge section, specifying to interested bidders how many “internal knowledge” and resources will be committed to this contract, if any, to work hand-in-hand with the chosen solution provider. If no such resources are available, this should be specified
• a requirements section, outlining to interested bidders what their proposal must contain. This section should ask interested bidders to include in their proposal
  • the proposed hosting environment and why the bidder recommends this particular one
  • their approach and work plan for this contract, including one-time web site migration efforts to the new hosting environment
  • how the recommended hosting environment will provide the desired security
  • backup and restore strategy
  • evidence of capability – bidders to provide at least two examples of similar complex sites successfully hosted and clients willing to act as references
  • resources – bidders should name and present the team who would be committed to this project
  • proposed Service Level Agreement(s) – how bidder intends to provide support services to the client
• a deliverables section, outlining what are the specific deliverables due under contract and the associated timetable. This list of deliverables should include:
  • Migration Proposal (steps leading to the complete migration of the web site from its former hosting environment to its new one
  • Migration (completed migration report certifying the site is operating as planned under the new hosting environment)
• a Terms and Conditions section, including the contract value in terms of fixed price and/or hourly billing, payment terms, copyright in works delivered and warranty and support conditions
• the court may optionally include a “development services” section, allowing the court to call-up ad hoc development services from the Solution Provider to further customize its web site beyond its initial configuration. If this section is included in the RFP, the bidders should present development costs and evidence of capability on providing such development services
• an Evaluation Criteria section, as suggested in Part V of the guidelines

Note: the draft evaluation criteria will be presented in the next post.

This post concludes with the last two draft recommendations of the CCCT IntellAction Working Group on Court Web Site Guidelines:

• Site Features – Keep It Simple
• Publication of information – Make It Simple

The previous draft recommendations can be found here:

• Court Web Site: Use a Web Content Management System
• Court Intranets: Use the same Web Content Management System
• Recommended content of court web sites
• Search, Navigation & Taxonomies – Keep It Simple

Grateful for any comments and suggestions that you may have – merci!

Recommendation #5: Site Features – Keep It Simple

Aside from content, search, navigation and taxonomies; the last puzzle piece to consider is “site features”. In other words, what actions should each category of users be able to perform on the web site (aside from searching which is considered separately above)? For example, should lawyers and other practitioners be granted elevated publishing rights and be able to comment on Notices to the Profession? Should practitioners and researchers be able to comment on court decisions? Should web site users be able to create personal annotations related to content found on the web site? Should they have the ability to subscribe to content according to category or keyword or both?

Amidst all the possibilities offered by modern Web Content Management Systems (WCMS), one can quickly get lost and overwhelmed by the range of possible features. Striving to implement a large number of features often carries an underestimated price in the longer term as the site becomes more difficult to update and upgrade. For this reason, the CCCT recommends only one feature available to users of court web sites in the first iteration of the site:

• subscription (RSS and/or email) to content based on categories (for example all “Notices to the Profession” in family law, authorship (for example all decisions by a particular judge)

Note: this feature list does not take into account e-filing (the electronic filing of court documents) which is a topic handled by another CCCT report.

Recommendation #6: Publication of information – Make It Simple

The timeliness, relevance and accuracy of the information published on court web sites will depend, to a large extent, on the willingness of court managers/administrators to implement a few changes in the roles and responsibilities of selected personnel. These changes are described in Part V.

In short, court staffs that currently have responsibility to prepare and finalize a given type of information should also be made responsible to publish that information on the web site without any other intermediary. For example, administrative assistants to judges routinely type and format court decisions before the decisions are “signed” and approved by a judge. The same administrative assistant should be given the necessary rights to log onto the site and publish the court decision as soon as it is endorsed by the judge, or after the decision has been sent to the parties, as appropriate.

Modern Web Content Management Systems offer a simple interface to publish content, and minimal training would be necessary to empower court staff to directly publish on the court web site.

Last Saturday, I shared on Slaw the first two recommendations of the CCCT IntellAction Working Group on Court Web Site Guidelines. In this post, I'm sharing our draft recommendations 3 and 4.

(note: in the next few days, I will share our two remaining recommendations, 5 and 6)

As usual – your comments and suggestions are welcome! Please let us know if you think we are in the right direction…

Recommendation #3: Recommended Content

Although each court may end up with more or less information published on its web site, there are categories of information deserving of publication by all courts, because courts are in a better (if not unique) position to ensure the timeliness and accuracy of published information, and because the information relates to the fundamental mission of the court.

Such categories include:

• court decisions (integral)
• rules of the court
• notices to the Profession
• guidance to litigants (lawyers and self-represented litigants), including contact information and alternative dispute resolution information

In addition to the above information, the following categories of information should also be made available:

• docket information
• current list of judges (with links to biographical information, pictures, contact details)
• role of the court
• annual reports of the court, if published
• guidelines for serving as a juror, attending court, accessing court records, etc.
• frequently asked questions

Finally, the following information would be a welcome addition to court web sites:

• historical and general information about the court (creation, important historical moments, judges over time, pictures of the court buildings and courtrooms)
• court fees
• court forms
• educational materials

Recommendation #4: Search, Navigation & Taxonomies – Keep It Simple

When several categories of information are published on a web site, “search, navigation & categories (or taxonomies)” issues always arise. The question becomes: how can the right information be made available to each audience intuitively, taking into account the various backgrounds of court web site users (lawyers, self-represented litigants, researchers, etc.)?

The answer to that question has three facets. The first facet is navigation. When navigation is considered, “usability” is key. Usability is a disciplined approach to web site development. It can ensure that complex sites are easy to use. The CCCT recommends that the top navigation be structured along top-level navigation portals for at least the following audiences:

• members of the Public (general)
• self-represented Litigants
• practitioners: Lawyers, Paralegals, Stenographers, Translators, etc.
• researchers: Law Professors, Law Librarians, Law Students

Resources permitting, the following top-level portals are also recommended:

• journalists
• law Publishers

Below the top-level portals, there should be second-level content categories. Some of these content categories can be common to more than one top-level navigation portal. For example, “court decisions” is a second-level content element that is likely to be found on all top-level navigation portals. Most commercial and open source Web Content Management Systems can handle sites with such a flexible content architecture.

A note of caution on annotated content. Court resources are limited. Courts, both historically and traditionally, are not in the business of annotating and/or organizing court decisions the way law publishers have been doing for decades. The CCCT recommends the publication of court decisions, subject to publication bans and privacy rules, but does not recommend that courts start annotating such decisions (for example augmenting decisions with headnotes or cross-references to other court decisions).

The second facet of the “navigation, search and categories” issue is searching. Searching on a web site is an experience that can be frustrating or simple, with all shades of effectiveness in-between, and with corresponding implementation costs. A simple Boolean search feature, which returns search results from the entire content database without sorting, categorization or pertinence ranking, can be implemented quite easily. However, this would probably result in more complaints than if no search were available on the site.

At the other extreme, a sophisticated natural language search engine with highly refined usage and lexicological parameters can provide unprecedented effectiveness, but at very high startup and ongoing implementation costs. How can the cost effectiveness balance be found between Boolean searching and sophisticated natural language searching engines?

The CCCT recommends finding this balance using a two-step approach. First, select a Web Content Management System (WCMS) most capable of adhering to the 11 principles laid out in this report. Next, assess the built-in WCMS search module against third party search modules that can be integrated with that WCMS. At a minimum, users should be able to execute multi-faceted search and refinements. In other words, they should be able to selectively search within categories of content.

Finally, the third facet is categorization of content, also called “taxonomies”. When content is published on a site that contains many categories of content, it is customary to annotate the content with metadata, or “terms” taken from a “controlled vocabulary”. This is another way of saying that web site administrators have set aside a number of categories (also called “controlled vocabularies”), each containing a list of terms that can be associated with content. Examples of controlled vocabularies: “Location”, “Topic”, “Jurisdiction”, “Judge”.

Taxonomies are driven and controlled by web site administrators. These administrators decide what terms and vocabularies are to be used, and which ones are made available to what categories of content. When authors publish new content on the site, they can pick terms and thus “categorize” their content. When content is categorized in this fashion, it can be made to appear on relevant pages or in specific search queries.

There is another kind of metadata built on “folksonomies”. Folksonomies are user-driven. As opposed to web site administrators deciding what are the controlled vocabularies and terms within each vocabulary, folksonomies simply allow “free tagging”. Content authors can decide on-the-fly when they publish content what terms (or “tags”) they want associated with their content.

There are pros and cons to using each approach (taxonomies and folksonomies). The CCCT recommends using both approaches, which complement each other. Taxonomies should be used in a limited fashion for the most obvious categories of content, leaving room for folksonomies to evolve over time with the nature of the published content. The ability to add free tagging to content should be reserved for court staff, to ensure a minimum consistency and coherence in developing the categories and terms associated with content.

This posts continues to expose on Slaw the draft Court Web Site Guidelines produced by the CCCT IntellAction Working Group on court web sites. In this post, we present recommendations 1 and 2 contained in Part IV of the guidelines, together with related context information. The context information is taken from Part I of the guidelines.

In short, the CCCT IntellAction Working Group on Court Web Sites recommends to courts using the same Web Content Management System (WCMS) to power their public, internet web sites and to power their internal, intranet web site.

A Web Content Management System is software that is:

• installed on a web server
• accessible to administrators, developers and users via a web browser
• used to create, update and manage web site information
• used to offer a consistent look-and-feel across all pages

Web Content Management Systems vary greatly in features, robustness, quality, cost and usability. Some are sold commercially, others are free and open source. In all cases, WCMS typically pursue the following objectives:

• allow web site developers to design a consistent layout (often called the “theme” of the site). Such layout can be modified in one place and affect all concerned pages
• allow web site administrators to create different user groups, and provide each user group with different rights and permissions to tailor the services and content served to each user group
• allow web site publishers and authors (those who create information) to add, update and delete information on the web site through an intuitive and easy to use graphical interface, without requiring any programming skills
• generally make possible the deployment of web sites that are constantly updated

As you may remember, the complete guidelines are divided in 5 parts:

• Context – It’s a Brave New World: Features & Characteristics of Modern, Forward-Looking and Interactive Web Sites
• Issues – Some Complexities Underlying Court Web Sites
• Principles – Cutting Through Context and Issues: What Principles Should Guide the Design of Court Web Sites?
• Guidelines – Applying Principles to Design: What You Need to Know
• Tools - Resources to Assist You in Following the Guidelines

In Part I, the guidelines present a short review of the evolution of the World Wide Web, of the Internet and of web sites. The objective of this review is the facilitate a shared understanding of what constitutes today a modern, forward-looking and viable web site.

The first excerpt, below, is taken from Part I of the guidelines, whereas the second excerpt contains recommendations 1 and 2. Your comments and suggestions are welcome!

The Internet and World Wide Web distinguished

From the History of the World Wide Web entry on Wikipedia, we find the following distinction between the Internet and the World Wide Web:

The World Wide Web (“WWW” or simply the “Web”) is a global information medium which users can read and write via computers connected to the Internet. The term is often mistakenly used as a synonym for the Internet itself, but the Web is a service that operates over the Internet, as e-mail does. The history of the Internet dates back significantly further than that of the World Wide Web.

When the WWW was in its infancy and early period, there were other Internet services (or “protocols”) that were popular, including newsgroups (nntp), file transfer (ftp) and email. Over time however, the growing sophistication and appealing layouts of WWW pages, accessible through the http protocol, established the WWW as a de facto standard used by organizations to establish an online presence. A browser is a computer program that allows a user to “surf” the world wide web by accessing its pages, either by clicking on links or by typing a specific address, known as URLs.

In the period 1993-2009, the increasing sophistication of Internet browsers allowed web site developers to build sites that were increasingly complex. Sites became a multipage affair with a lot of content to manage and update on a regular basis. As a result, one can observe, in hindsight, three generations of web sites in that period – more information on this (and the diagrams that follow) can be found in Angela Byron et al., Using Drupal (O’Reilly, 2008) at pp. 5ff.

Evolution Axis 1: Three Generations of Web Sites

The first generation of web sites consisted of single or multiple pages coded in HTML. These pages were created, managed and updated individually:

Some web sites still reflect that architecture. Web site developers, webmasters and owners realized that it is very difficult to manage content and layout as the site grows in complexity. For example, to change one menu element across the site, each page had to be manually changed.

To move away from this labour intensive process, second generation web sites leveraged the use of “scripts”, mainly CGI scripts, to pull the content from underlying databases and present content on web pages:

Several web sites are built on that architecture. Although better than a collection of HTML pages, this architecture still presented challenges to maintaining and updating the site. Changes might result in script modifications, in database modifications and/or in HTML code.

These challenges led to third generation web sites. These sites effectively separate content from layout by using a Web Content Management System (or WCMS):

(note: in the first part of this post, above, the term "WCMS" is defined)

Parallel to this generational progression, another kind of evolution took place: the transition from purely static web sites to interactive web sites.

Evolution Axis 2: Transition from Static to Interactive Web Sites (“web 2.0”)

Static web sites are increasingly being replaced by interactive sites. A static site is a web site in which the information cannot be created, updated or commented upon by web site visitors. Interactive sites offer users a more dynamic experience.

Interactivity is one feature of web sites that are categorized as web 2.0. Web 1.0 corresponds to static web sites. Web 2.0 sites are best characterized by the following principles and practices (for more information see O’Reilly’s article What is Web 2.0):

• Strategic Positioning – The Web as Platform
• User Positioning – You control your own data
• Core Competencies -
  • services, not packaged software (“Software as a Service” – SaaS)
  • architecture of Participation
  • cost-effective scalability
  • remixable data source and data transformation
  • harnessing collective intelligence

Web sites such as Facebook, MySpace, Twitter and Wikipedia are classic examples of Web 2.0 sites. Many individuals and organizations have shifted towards web 2.0 sites to attract visitors and build loyalty among visitors because such sites are more engaging and interesting.

(note: this concludes the context information contained in Part I of the guidelines that relates to the following recommendations)

Recommendation #1: Use a WCMS for Internet Court Web Sites

As explained in Part I (“Three Generations of Web Sites”), modern web sites containing frequently updated content are deployed on Web Content Management Systems (WCMS). Courts should redeploy their web sites on a WCMS capable of implementing the 11 principles outlined in Part III above.

(note: these 11 principles have been presented here on slaw in past posts – see Right Information for Specific Audiences – Empowerment – Timeliness (1-3), Notification – Content – Security (4-6), Bilingualism – Accessibility – Interactivity (7-9), Viability – Simplicity (10-11))

The following steps are recommended to create an efficient operational court web site:

1. secure management approval of (1) a court web site project; and (2) permanent organizational changes. Deploying a new or revamped court web site adhering to the 11 principles laid out in Part III requires an accountable project manager, with a distinct project team. In addition, some court organizational changes (see Part V) are necessary in order to support the efficient publication of information to the court web site. These changes should be identified up front, and approved at the same time as the court web site project;
2. select a Solution Provider. In this step, the court issues a Request for Proposal, if applicable, and selects a solution provider that will design, develop and deploy the new court web site. The main headings of such an RFP are suggested in Part V;
3. deploy New Court Web Site. In this step, the alpha, beta and final versions of the new web sites are deployed, user acceptance testing is completed, and the site is published for ongoing use; and
4. handover of Court Web Site Responsibilities. In this final step, the project office is closed and all responsibilities for the operation and maintenance of the web site are assigned permanently to internal employees and/or contractors.

Recommendation #2: Use a WCMS for Court Intranets

When there is a need for internal collaboration and publication of information (within a court), courts should consider using the same WCMS that was selected for the public facing court web site for the internal facing web site. In this case, a different installation of the same WCMS will be needed on a different server – an intranet server as opposed to an Internet server.

The advantages for selecting the same WCMS are numerous:

• reducing the number of different platforms – the same technology is used for two different environments. This means that only one set of skills and expertise is needed to maintain both the internal and external platforms, thereby reducing costs and management overhead, technical maintenance overhead, training requirements, etc.
• a completely different look and feel (called a “theme”) can be used for the internet and intranet web sites, to ensure that users with access to both platforms do not mistake one for the other and commit mistakes, for example, publishing sensitive internal information on the external site.

If a court intranet site is needed, then all the steps laid out under guideline #1 should be followed. In other words, there should be two separate projects, one aimed at the external web site and the other at the internal intranet site. Both projects are very different and should not be confused with each other.

The administrative control of court web sites can be a sensitive issue, because it often cuts across the independence of the Judiciary and resources of the Executive. In consideration of this issue, we felt that our guidelines had to address the issue. The following text is our draft on topic.

All stakeholders and practitioners in the Justice system are well aware of the constitutional division of powers between the executive, the legislative and the judicial functions in Canadian society. In practice however, when it comes to routine court administration, cooperation exists and is needed between the judiciary and government.

Court web sites are a good example of this needed cooperation. Who is or should be responsible for their operation, including funding? Who should have approval authority for the content published in court web sites? Who should decide the fundamental questions of how the site should evolve? Some of these questions are difficult to answer.

The CCCT acknowledges that different models of cooperation exist in Canada in relation to the administration of court web sites. At the same time however, it is not necessary for the CCCT to recommend a specific model of cooperation between the judiciary and governments when it comes to modernization of court web sites. These guidelines make the assumption that someone, or a small group of persons, is ultimately responsible for the court web site. The small group of persons may include members of the judiciary and of the executive branch. Collectively, this small group of persons is empowered to follow and apply the current guidelines, to the extent desired for their court.

In short, although the CCCT acknowledges the delicate issue of administrative control of court web sites, at the same time, the CCCT suggests that modernization of court web sites along the guidelines do not require any “resolution” of that issue, and considers every court and tribunal in a better position to decide how to apply the current guidelines under their cooperation model.

A few days ago, I presented the issue of copyright & licensing of information found on court web sites. In this post, please find – please feel welcome to comment! – our draft on the topic of "Balancing Privacy and Public Access to Court Information: The Need for Confidentiality Rules". Essentially, our recommendation on topic is to follow the Canadian Judicial Council Model Policy on topic.

The growing unease with court-related, internet, search engine powered access to web site information was well framed in a 2008 comment to a slaw.ca blog post about anonymization of parties’ names:

Having an open court today is different than in the past when there were no electronic databases. Previously, in order to see a judgment, a person had to go to the court or to a law library. In some parts of Canada, this meant having to get to another town (thinking of my very small hometown, you’d have to drive for hours to get to a public law library). And then you’d have to have a librarian help you find the case. This meant that, other than lawyers and judges, only those who were exceptionally keen would get the information. Now, all you have to do is punch in some names in a free database and ta da! All your information is there for anyone to see. How fair is it, really, that everything done in a trial can be found by any Joe or Jane Doe just because they felt like it. Some of the information provided by a judge in their judgment is totally irrelevant. I have seen judgments where a parties’ banking account information has been provided! Why should that be available for all to see? We need to rethink how the web changes such things and if we really need all the information we say we do.

The issue of balancing the right of the public to open courts with the right of an individual to privacy was tackled in 2003 in a discussion paper by the Canadian Judicial Council Judges Technology Advisory Committee (JTAC) titled “Open Courts, Electronic Access to Court Records, and Privacy”. The JTAC later built on this discussion paper and published, in 2005, a “Model Policy for Access to Court Records in Canada”.

This Model Policy reduces the issue of access to court information in a few simple access rules, effectively achieving a recommended balance between the right of the public to open courts with the right of an individual to privacy. The CCCT recommends the application of this Model Policy to court web sites, including the recommendation about preventing indexing and cache storage of judgments from web robots and search engines.

About a year ago, I announced the creation of a Canadian Centre for Court Technology (CCCT) “IntellAction” working group with the mandate to promote the modernization of court web sites in Canada by way of producing guidelines on topic. We have now finished our first draft and invite you to take a look, in upcoming weeks, to selected parts of the guidelines. Your comments and suggestions are welcome!

The complete guidelines are divided in 5 parts:

• Context – It’s a Brave New World: Features & Characteristics of Modern, Forward-Looking and Interactive Web Sites
• Issues – Some Complexities Underlying Court Web Sites
• Principles – Cutting Through Context and Issues: What Principles Should Guide the Design of Court Web Sites?
• Guidelines – Applying Principles to Design: What You Need to Know
• Tools - Resources to Assist You in Following the Guidelines

The principles have been presented on slaw last summer (post 1, post 2, post 3 and post 4).

Next, we wish to present to you, in the next series of posts, the following issues in relation to court web sites:

• Facilitating the Flow of Information: Licensing Information Found on Court Web Sites
• Balancing Privacy and Public Access to Court Information: The Need for Confidentiality Rules
• The Administrative Control of Court Web Sites: A Sensitive Issue

This post is about the first issue: Facilitating the flow of information and licensing information found on court web sites. The following text is our draft on topic.

The information published on a court web site may come from a variety of authors: judges, court staff (e.g. employees of courts administration), the justice department/ministry, public servants, lawyers (e.g. if factums are available on the court web site), etc. Unless a clear copyright and licensing policy is published on the court web site, it may be difficult for users to ascertain the copyright or licensing status of the various types of information. For example, to whom does the copyright of judicial decisions belong? Can those decisions be re-used in a commercial context, or not?

The CCCT recommends that each court web site displays a link in its footer, or other readily accessible place, pointing to a Copyright & Licensing Information page. This page should explain to users of the web site:

• what is the copyright status of each type of information found on the site
• what is the licensing status of each type of information found on the site
• practical examples of what can be done, and not done with the information subject to copyright and licensing terms

The copyright of information produced by or under the direction and control of the Crown is governed by the Copyright Act, c. C-42, s. 12:

Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty (…)

According to s. 12, above, information produced by public servants is subject to Crown copyright. The executive branch in each Canadian jurisdiction (provinces, territories, federal) is free to enact its own copyright and licensing policy in relation to the work product of its public servants, and so does in a variety of ways, some more permissive than others (see Noel Cox, “Copyright in Statutes, Regulations, and Judicial Decisions in Common Law Jurisdictions: Public Ownership or Commercial Enterprise?” Statute Law Review, 27(3), 185 at pp. 193ff).

When it comes to judicial decisions, it is not clear if copyright in “works” produced by the Courts vests in the Crown by operation of s. 12, because the wording of s. 12 relates to works “prepared or published by or under the direction or control of Her Majesty or any government department”. On the other hand, one might ask, if it does not vest in the Crown, who owns copyright in judicial decisions? Unlike the United States, Canada does not have a legislative and case law basis confirming that judicial decisions are in the public domain, so copyright does attach to judicial decisions in Canada.

In any event, this issue appears to have been settled by the Reproduction of Federal Law Order, SI/97-5, P.C. 1996-1995 (19 Dec 1996):

Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version.

Whether this order is ultra vires of the executive branch (in relation to judicial decisions and reasons for decisions) is beyond the scope of these guidelines. These guidelines assume that courts have no difficulty with the substance of this order in relation to judicial decisions.

In short, there are three types of information likely to be found on court web sites, and corresponding copyright & licensing frameworks:

• Judicial decisions. According to the Reproduction of Federal Law Order, quoted above, a license attaches to judicial decisions allowing their reproduction and re-use provided that (a) their integrity is maintained; and (b) they are not represented as an official version.
• Information authored by public servants (Justice department/ministries, courts administration, etc.). The copyright & licensing policy of the applicable jurisdiction applies (federal, provincial or territorial). In some cases, for example at the federal level, a decision can be sought to attach a license to Crown-copyrighted materials (from the Public Works & Government Services Canada – PW&GSC – Copyright & Licensing Office).
• Information authored by third parties (e.g. litigants and their counsel). Court documents provided by third parties that are part of a court case, not subject to a publication ban and available on a court web site (e.g. factums) could not be subject to an inferred license because one cannot infer a license when copyright attaches. There may be an inferred right for the Court to publish such information on a court web site, but that right does not extend to users of the web site.

Are you interested in finding out what's going on in our courts… in terms of technology? If so, you can help the Canadian Centre for Court Technology (CCCT) developing an online clearinghouse on topic with just a few minutes of your time.

You can provide your input by filling this brief questionnaire:

http://ccct-cctj.ca/launch-of-the-clearinghouse-questionnaire/

On behalf of the CCCT… Thank you!

This post concludes a series of post on the subject topic:

• Presentation of the CCCT IntellAction Working Group on Court Web Site Guidelines (21 Jan 2010)
• Presentation of the Working Group selection of principles included in the subject guidelines; principles 1, 2 and 3 explained (The Right Information for Specific Audiences, Empowerment, Timeliness – 17 Aug 2010)
• Presentation of Principles 4, 5 and 6 (Notification, Content, Security – 20 Aug 2010)
• Presentation of Principles 7, 8 and 9 (Bilinguism, Accessibility, Interactivity – 25 Aug 2010)

As always, your comments and suggestions are welcome.

Principle #10: Viability

Viability is a large concept and embodies several ingredients:

• Cost effectiveness in the long run, or Total Cost of Ownership (TCO)
• Effectiveness of the web site platform in delivering the desired features and characteristics
• Efficiency of the web site platform in delivering the desired features and characteristics
• Sustainability of the web site platform (i.e. the underlying Web Content Management System): is it being kept up to date? Are security patches issued on a timely basis? Is the upgrade cycle regular? Is there a large base of knowledgeable developers that are familiar with the platform?
• Flexibility of the web site platform: is it providing a way to easily customize the site to add or modify features that are not part of the core Web Content Management System? Is an Application Programming Interface (API) available and easy to leverage?

All these facets of viability need to be assessed when selecting a Web Content Management System (WCMS) to power the court web site.

Principle #11: Simplicity

Last but not least, the overriding, overarching important principle of simplicity.

In the context of the present guidelines, simplicity should guide courts when they are making the following decisions:

• What Web Content Management System (WCMS) should the court select to power its web site?
• How much customization of the selected WCMS should occur to address the full range of requirements and desired features?
• How much integration between the selected WCMS and corporate applications / legacy systems should be implemented?

When Information Technology is concerned, complexity is a disease, especially when it comes to Web Content Management Systems. Courts should make technology decisions that will result in a simple environment for content creators, content consumers and web site custodians.

Customization and integration often lead to complexity. Governments and large organizations with well-funded Information Technology budgets routinely invest large sums of money to add customization and integration to their initial IT investments. This leads to several, well-known problems in the long run. For example, when a specific version of a Commercial-and-Off-the-Shelf (COTS) enterprise software is customized to provide additional features and integration with corporate systems, the requirement to re-customize and re-integrate is bound to re-occur for every release of a new version of the COTS software, often costing millions of dollars to organizations that have made those initial choices. This need for additional customization and integration typically allows the software to meet 98% of the requirements instead of 80%, for example.

Courts should carefully evaluate, before heading into the direction of expensive integration and customization, whether the additional upfront and recurring costs is worth the additional features of the web site? This question should be evaluated only after alternative means to meet the additional features have been considered. In many cases, human workflow adjustments can accommodate very well the requirements that are not met with the core Web Content Management System, in a much more cost-effective manner.

Earlier last week, I presented the CCCT IntellAction Working Group selection of principles that should guide the design and organization of court web sites and further explained, in a later post, principles 4, 5 and 6 on notification, content organization & search and security. In this post, I further explain the next three principles:

• Principle #7: Bilinguism
• Principle #8: Accessibility
• Principle #9: Interactivity

Comments and suggestions are welcome!

Principle #7: Bilinguism

Canadian courts need to offer bilingual web sites, as a minimum; and wherever appropriate and desired, even offer additional languages. The bilingual requirement covers both the web site interface and web site content. Users should be able to switch from one language to the other from any page on the site. Each content type offered on the site should be reviewed and guidance issued by the court to web site administrators as to what content should be offered in what languages. In addition, the web site should ideally

• provide the ability for content authors to notify translators that content is ready to be translated
• allow translators to open a session on the site and quickly identify the content that needs to be translated
• allow content authors to review translations before they are published

Principle #8: Accessibility

Web accessibility is an important principle and the corresponding entry on Wikipedia deserves to be quoted:

Web accessibility refers to the practice of making websites usable by people of all abilities and disabilities. When sites are correctly designed, developed and edited, all users can have equal access to information and functionality. For example, when a site is coded with semantically meaningful HTML, with textual equivalents provided for images and with links named meaningfully, this helps blind users using text-to-speech software and/or text-to-Braille hardware. When text and images are large and/or enlargeable, it is easier for users with poor sight to read and understand the content. When links are underlined (or otherwise differentiated) as well as colored, this ensures that color blind users will be able to notice them. When clickable links and areas are large, this helps users who cannot control a mouse with precision. When pages are coded so that users can navigate by means of the keyboard alone, or a single switch access device alone, this helps users who cannot use a mouse or even a standard keyboard. When videos are closed captioned or a sign language version is available, deaf and hard of hearing users can understand the video. When flashing effects are avoided or made optional, users prone to seizures caused by these effects are not put at risk. And when content is written in plain language and illustrated with instructional diagrams and animations, users with dyslexia and learning difficulties are better able to understand the content. When sites are correctly built and maintained, all of these users can be accommodated while not impacting on the usability of the site for non-disabled users.

Web site developers rely on Web Content Accessibility Guidelines (WCAG – currently version 2.0 and published by the World Wide Web consortium) to design accessible web sites. Depending on the conformity to several objective criteria defined in the WCAG 2.0, a web site can claim to be level A, AA or AAA compliant with WCAG 2.0, level AAA being the highest level of conformity.

Canadian courts should offer at least level A web sites to all audiences for all web site pages, except administrative pages of the site that are only consulted by internal staff. A higher level of compliance is encouraged and should be reported on the site.

An accessibility feedback mechanism should be put in place, such as a contact email or a forum where users with special needs could address their requests and critics related to accessibility issues.

Where a document cannot be represented in XHTML 1.0 Strict or a language described by WCAG 2.0 – the court must include an Accessibility Notice on the same page, immediately preceding the inaccessible element(s), that informs site visitors how to obtain accessible versions.

Principle #9: Interactivity

Interactivity takes many forms. It refers to the ability to perform the following actions on a court web site:

• Commenting
• Form Filling
• E-Filing

With regards to commenting and for each type of content offered on the court web site (see list under Principle #1: Comprehensiveness), decisions should be taken by the court on the following:

• whether users should be allowed to comment on content (the comments are typically listed in a flat or threaded fashion underneath the content)
• who (which user groups) should be allowed to comment
• who should be able to view the comments and under what circumstances (for example only users that are logged in could view the comments)
• what strategy, resources and tools will be put in place to prevent or minimize inappropriate commenting and spam

Form filling refers to the ability for users of the court web site to fill online forms and also to submit them online. Some forms are interactive and provide information back to the user, for example, child alimony forms. The topic of such forms is beyond the scope of these guidelines.

E-Filing refers to the ability for lawyers (and sometimes self-represented litigants) to submit court documents online according to specific formats (among other uses). This topic and associated guidelines are handled by another IntellAction Group of the Canadian Centre for Court Technology (CCCT) and are therefore not covered in the present guidelines.

Earlier this week, I presented the CCCT IntellAction Working Group selection of principles that should guide the design and organization of court web sites. In this post, I further explain the next three principles:

• Principle #4: Notification
• Principle #5: Content Organization & Search
• Principle #6: Security

Comments and suggestions are welcome!

Principle #4: Notification

The option of subscribing to content (or notification of new content) is often an expected web site feature. This is typically achieved by offering one or several RSS feeds, one or several email subscriptions or, ideally, offering both RSS feeds and email-based subscriptions.

Each court web site audience should be provided with recommended notification channels, thereby increasing the likelihood of the court web site becoming truly interactive.

Selected taxonomy terms (see below, Principle #5: Content Organization & Search) should have their own page on the site, RSS feed and email-based subscription.

Notification further empowers web site stakeholders.

Principle #5: Content Organization & Search

There are three methods to organize content on a web site. All three methods should be used for court web sites:

• Menu Navigation. First and foremost, menu navigation should be tested by users (User Acceptance Testing – UAT) and relentlessly optimized, because it is the primary means of accessing content for web site visitors
• Taxonomies. Taxonomies are terms (or categories) controlled by web site administrators to classify and organize content. Only web site administrators can create and update such terms. These terms, often called categories on web sites, are displayed along content and can usually be clicked on to get to all content belonging to the same category
• Free Tagging. Free tagging (also called “Social Tagging”) allows creators of content to assign terms on-the-fly to their own content and/or to existing content. By contrast to taxonomies, which only allow the addition of categories or keywords taken from controlled vocabularies; social tagging allows any terms to be added to content. This is useful because each person is bound to tag the same content differently depending on their preferences. Allowing free tagging further empowers web site users to retrieve content based on their own keywords

When it comes to searching for content, web sites greatly vary in the effectiveness of their search engine. Some do not offer any search capabilities, others offer a basic keywords search or a full text search, others go as far as providing sophisticated Natural Language Search capabilities for unstructured searches.

In the interest of Principle #10: Viability (especially cost-effectiveness) and Principle #11: Simplicity, these guidelines recommend that court web sites provide full text faceted search, but not Natural Language Search capabilities. Faceted search means that users can restrict search results to pre-defined information categories. Natural Language Search capabilities are more effective, but are significantly (by several orders of magnitude) more expensive to implement. Courts are not in the business of providing sophisticated information search capabilities, this is a field occupied by commercial law publishers and other public entities.

Principle #6: Security

Security has three components:

• Confidentiality
• Integrity
• Availability

In terms of confidentiality, court web sites should be designed in a way that confidential information is adequately protected from unauthorized access. The best method of ensuring confidentiality is always not to put confidential information on the site, whenever this is possible. When the need to put confidential information on the site is unavoidable, because it must be made available to defined user groups (lawyers for example), then an appropriate security audit and security testing should be conducted to evaluate the security risks, and such risks should be formally accepted by senior management. What is and is not confidential information, for the purpose of information published on a court web site, is a topic specifically addressed under the current guidelines.

Integrity ensures that information published on the web site cannot be changed without proper authorization, for example, a user changing the text of a court decision published on the site. In this area there are various ways to achieve this goal, ranging from basic user group permissions to sophisticated public/private key systems (PKI). When it comes to information published on the web site, the only information warranting a higher integrity requirement are court decisions and case information. Until such time as a PKI infrastructure with a centralized approved certificate authority has been chosen by and for Canadian courts, the only viable option is to design the court web site and court decision publishing workflow in a way to minimize risks of tampering with court decisions.

Finally, availability is a measure of the uptime to downtime ratio of the site and of the effectiveness and efficiency of backup/restoral services. A robust site hosted on a reliable platform, architecture and hosting provider will provide higher availability to users of the court web site. As a minimum, courts need to turn their attention to the topic of availability and ensure the site is architected in a way to provide high availability to users.

Back in January, I announced the formation of a working group under the auspices of the Canadian Centre for Court Technology (CCCT). The objective of this working group was to draft guidelines facilitating the modernization of Canadian court web sites. Since that time, we have made progress and expect to have finished a first draft of the Court Web Site guidelines before the upcoming Canadian Forum on Court Technology.

One of the five parts of the guidelines is titled "Principles – Cutting Through Context and Issues: What Principles Should Guide the Design of Court Web Sites?"

In this post I'd like to expose the principles we selected. Your comments and feedback are welcome:

• Principle #1: The Right Information for Specific Audiences
• Principle #2: Empowerment
• Principle #3: Timeliness
• Principle #4: Notification
• Principle #5: Content Organization & Search
• Principle #6: Security
• Principle #7: Bilinguism
• Principle #8: Accessibility
• Principle #9: Interactivity
• Principle #10: Viability
• Principle #11: Simplicity

The first three principles are explained, below. The other principles will be explained in upcoming posts.

Principle #1: The Right Information for Specific Audiences

Users that come to a court web site generally fall under the following categories:

• Members of the Public
• Journalists
• Self-represented Litigants
• Practitioners: Lawyers, Paralegals, Stenographers, Translators, etc.
• Researchers: Law Professors, Law Librarians, Law Students
• Commercial Law Publishers
• Government (Public Servants)
• Staff (employees and judges of the court)

Each audience has its own information needs and expectations. Being able to find the right information means that courts should make a effort, under the current guidelines, to specifically cater to each audience according to a “cost / benefit” analysis.

This analysis is necessary, because it is impossible to meet the entire range of all information needs by all audiences. As a result, the following information scope elements should be clearly defined upfront: what audience will be served under a thematic access, and what each thematic access will provide. It is understood that some expectations for some audiences will not be met by court web sites, particularly when these expectations are met by other content providers. On the other hand, content uniquely authored by the court should be available on the court web site, for example, court decisions.

A majority of Canadian courts do not publish their decisions on their web site, in part due to the fact that court decisions are routinely screened, commented upon in the form of headnotes and made available to members of the legal profession by commercial publishers. Commercial publishers will always have an important role to play when it comes to adding value to raw information produced by courts. For example, lawyers routinely rely on case headnotes and precedent analysis notes found in commercial databases that are sold on a subscription and/or per use basis. This added information is not produced by the court. Commercial publishers also use legal staff to screen decisions and make judgment calls on what decisions should be considered material of precedential value, and therefore be included in their databases.

While fully recognizing the important role that commercial law publishers play, courts are inherently well suited to issue their own decisions to the public in a timely manner, subject to privacy concerns, where applicable.

In addition to court decisions, there are several other types of information that ought to be found on a court web site:

• Court Jurisdiction
• Docket and Court Schedule Information
• Case Information and Files
• Rules of Practice and practice directives
• Notices to the Legal Professions
• Court News
• Court Initiatives and Projects
• Judges Biographies (past and current)
• Self help guides for self-represented litigants
• Alternative Dispute Resolution (ADR) information
• Court hours, location(s) and other contact information
• Web Site Policies (Copyright, Privacy, Accessibility, etc.)
• Court hours, phone numbers, and other contact information for key court personnel

Resources permitting, the following information should also be found on court web sites:

• Court news (initiatives and projects)
• Court forms
• Court fees and fines
• Annual reports of the court, if published
• Frequently asked questions
• Key documents (e.g. child support guidelines; sentencing guidelines)
• Historical information about the court (creation, important historical moments, judges over time, pictures/locations of the court buildings and courtrooms
• Educational materials
• Topical reports, if published (e.g. inquests, commissions)

Principle #2: Empowerment

A key aspect of web 2.0 is the empowerment of the user. The user is in control of the information. Whereas a web site content author would previously have to have the content published through a web site developer, content authors can now publish their content on the web without any intermediaries. This leads to the notion of empowerment. Which stakeholders should be empowered?

Three types of stakeholders to any web site should be empowered:

• Consumers: those who come to the web site in need of information
• Creators: those who come to the web site to publish information, add comments, etc.
• Custodians: those who make the web site available, apply security patches, ensure content backup and restoral services, etc.

The same individual can be a consumer and creator.

Empowering each classe of stakeholders means the following:

• Consumers have several options at their disposal in how they want to experience the site -
  

  – They can register for an account on the site, self-identify with a user category and be presented with a home page customized for their user category
  – They are offered several content subscription options, either by RSS or email (at their choice), matching the content types they are interested in. For example, a lawyer might want to subscribe to content updates matching “Notices to the Legal Profession”, “Rules of Practice” and court decisions in a specific area of the law, but not to other content
  – They know what they can do and not do with the information (in terms of copyright). Ideally, information published on the court web site is put into the public domain or at least assigned a Creative Commons license in order to encourage the free flow of information published on the web site

• Creators can easily -
  

  - create content matching their user category. For example, Judges and their assistants could create and publish new “Court decisions”, whereas other court staff could create other types of content
  – create content through an intuitive, friendly Graphical User Interface on the web site itself. There is no need to send the information to technical staff or intermediaries for the content to be published on the site
  – know what are the rules of the road and best practices when it comes to publishing information on the site. For example, under what circumstances should the names of the parties be stricken out of the decision? Who can authorize the issuance of a “Notice to the Legal Profession”? Creators of content must benefit from clear court guidance on when and how each type of content can be published on the site
  – provide feedback on web site usability and see that feedback acted upon

• Custodians are those charged with the maintenance and technical operation of the web site. Empowering custodians means that they should -
  

  - have access to a competent, reliable and readily available 2nd and 3rd lines of support when they need to resolve technical issues beyond what they ordinarily deal with
  – be provided with a friendly Graphical User Interface to administer the web site
  – be provided with a modular framework, allowing them to add or remove features from the web site in a relatively painless way
  – have access to usability and technical information on the chosen platform to host the court web site
  – be provided with timely security patches to the web site platform

Layering the information is also another facet of web site user empowerment. Layering the information empowers the reader to dig deeply into a subject if they so choose. Layering information typically involves offering short snippets with a link, then longer pieces with a link, then perhaps the full detailed content. A big mistake of websites is to offer too much information at once – the counter to that is to allow the user to scan for information they are interested in, then “empower” them to delve into it more deeply.

Principle #3: Timeliness

Timeliness means reducing as much as possible the time between the following two moments:

• when information is ready to be published on the site (e.g. a court decision is finalized)
• the information is published on the web site

In practice, timeliness is achieved by identifying those who are responsible for finalizing each content type, and empowering them to publish the information directly on the site (without any intermediary).

When Dominic Jaar became the CEO of the Canadian Centre for Court Technology, he immediately set out to constitute several "IntellAction" working groups. One of these groups had the mandate to promote the modernization of court web sites in Canada by way of producing guidelines on topic.

Dominic knew this was an area of strong interest to me, so he asked me to lead the group. We built the membership last September to include fair representation from the judiciary, lawyers in private and public sector practice, the Courts Administration Service, a few other areas and a journalist to represent the interests of the Canadian public. The following are members of this working group (in alphabetical order):

• Louis-Vincent d'Auteuil (Military Judge)
• Alexandre-Philippe Avard (private practice, civil litigation, Woods, Québec)
• Michelle Blanc (Internet Marketing Strategist)
• Yves Boisvert (Columnist, La Presse)
• Patrick Cormier (Government 2.0 Think Tank Inc., President)
• Simon Fodden (Law Profesor Osgoode Hall Law School and slaw Founder)
• Louise Hamel (Manager, Judge's Library, Ontario)
• Dominic Jaar (ex officio member, CCCT CEO)
• Olivier Jaar (ex officio member, CCCT coordinator)
• Pierre-Paul Lemyre (Business & Product Development, LexUM)
• Steve Matthews (Law Librarian & Founder of Stem Legal)
• Yves-Marie Morissette (Judge, Court of Appeal for Quebec)
• John McMunagle (private practice, criminal defense lawyer, Ontario)
• Raphael Papiccio (law student, University of Ottawa)
• Thomas Quine (Manager, Online Communications and Publications, Transparency International)
• Jean-Philippe Ricard (Programmer-Analyst, LexUM)
• Alan Ritchie (Courts Administration Service)
• Chris Walpole (IT Director, Government of Ontario)
• David G. Williams (Judicial Information Technology Office, Courts of Ontario)

In the coming weeks, I will share here on slaw some of our findings, ideas and questions; we welcome any and all suggestions and comments. For the moment I'll just give you a preview into the major headings of our guidelines:

1. Context – It’s a Brave New World: Features & Characteristics of Modern, Forward-Looking and Interactive Web Sites
2. Issues – Some Complexities Underlying Court Web Sites
3. Principles – Cutting Through Context and Issues: What Principles Should Guide the Design of Court Web Sites?
4. Guidelines – Applying Principles to Design: What You Need to Know
5. Tools – Need Help in Following the Guidelines: What You May Want to Use

Looking forward to the online conversation.

So says Nick Abrahams in his similarly titled post of last week:

Today in what appears to be a first in Australia and perhaps the world, Master Harper of the ACT Supreme Court ordered that a default judgement could be served on defendants by notification on Facebook.

I wonder how long before this happens in Canada? After all, Canada is the country in the world with the highest Facebook penetration, as a percentage of its population… 29% in July 2008! Too bad Facebook doesn't send back read receipts to lawyers serving documents on Facebook.

Me André Allard de l'Office de la Protection du Consommateur nous a présenté les nouvelles dispositions de la Loi sur la protection du consommateur. Entrée en vigueur en 1980, la loi régissait auparavant les contrats à distance mais dans le contexte de l'époque. Depuis 2006 cette loi a connu des modifications pour tenir compte des nouvelles technologies et prévoir des règles s'appliquant sans égard au médium utilisé pour conclure le contrat – par ex. téléphone, courriel, internet.

La nouvelle définition du contrat à distance s'applique aux entreprises visant spécifiquement de conclure des contrats à distance. Prévue à l'art. 54.1, elle se lit comme suit:

54.1. Un contrat à distance est un contrat conclu alors que le commerçant et le consommateur ne sont pas en présence l'un de l'autre et qui est précédé d'une offre du commerçant de conclure un tel contrat.

Le commerçant est réputé faire une offre de conclure le contrat dès lors que sa proposition comporte tous les éléments essentiels du contrat envisagé, qu'il y ait ou non indication de sa volonté d'être lié en cas d'acceptation et même en présence d'une indication contraire.

Me Allard a ensuite présenté les principales nouveautés que le lecteur pourra retrouver aux art. 54.2 et suivants de la LPC.

Après la présentation de Me Allard, Me Catherine Smith (VP services juridiques à Best Buy Canada) et Me Luc Thibaudeau (Lavery, de Billy) ont vigoureusement défendu les points de vue (sensiblement différents!) des commerçants et intermédiaires facilitant les transaction électroniques, respectivement. Ce fut une discussion fort animée!

Pendant la séance plénière du lunch, tout comme l'an passé, nous avons eu droit à une présentation d'un panel judiciaire constitué comme suit:

• Hon. Nicole Duval-Hesler, Cour d'appel du Québec
• Hon. André Wery, Cour supérieure
• Hon. René de la Sablonnière, Cour du Québec

Cour d'appel du Québec

En guise d'introduction, l'Honorable Nicole Duval-Hesler a proposé une réflexion concernant l'évolution certaine que la loi suivra pour accompagner les développements technologiques, sans toutefois savoir, au moment présent, quelle direction prendra cette évolution. Plusieurs exemples historiques confirment comment les nouveautés technologiques ont toujours été accompagnées d'innovations juridiques. À cet égard, on peut se demander quelles innovations juridiques Internet amènera, puisque dans une large part, présentement, il s'agit toujours d'un medium non-réglementé (e.g. par le CRTC).

Dans un contexte judiciaire, il y a des qualités qui s'attache à l'information qui deviennent susceptibles d'analyse plus critique et poussée lorsqu'elle provient d'Internet – notamment, sa précision, véracité, fidélité, qualité; son format, etc… La tâche est souvent plus ardue.

L'exemple de Napster, compagnie trouvée coupable d'entrave aux droits d'auteur, a aussi été soulevé. Bien que Napster ait fait faillite, que faire ensuite concernant les nouvelles méthodes de dissémination de fichiers musicaux comme le "peer-to-peer" (P2P) file sharing? Il n'est manifestement pas pratique d'intenter des poursuites contre des milliers de contrevenants potentiels…

Cour supérieure

L'Honorable André Wery a ensuite pris la relève en évoquant l'image du "6e continent" (les technologies de l'information): un continent où il y a peu de règles, et le peu de règles qui existent sont difficilement sanctionnées; un continent où il y a des trésors d'où on ne revient pas changé… Le continent de la technologie judiciaire. Le juge Wery confirme que la Cour est intéressé, enthousiaste et désireuse de progresser dans ce domaine. Il note toutefois que les recommandations du Rapport Ferland concernant la technologie judiciaire tardent à être adoptées par le Législateur.

Plusieurs effets pernicieux sont notés au passage par le juge Wery:

• L'augmentation exponentielle de l'accessibilité à l'information provoque une surabondance de preuve à la cour, souvent au détriment de la clarté de la cause en litige. Le "trail by ambush" devient le "trail by avalanche" (!)
• La loi de Parkinson – le travail s'étale de façon à occuper le temps disponible…
• "If you cannot convince them… confuse them".
• Dématérialisation du concept espace/temps. Avant l'ère informatique, le travail jurdique était confiné au bureau et les heures de travail étaient restreintes à des heures plus normales. À cette époque, le mot "technologie" évoquait du temps de qualité accru… Le temps et l'expérience ont prouvé le contraire – le technologie permet le travail en tout lieu et à toute heure, ce qui entraîne souvent trop d'attention aux détails et pas assez aux fondements d'une cause. Cette tendance entraîne aussi une diminution de la qualité de vie de la plupart des avocats…
• Dépersonnalisation des rapports entre collègues. Curieusement, au lieu d'être accompagnée de neutralité des sentiments, cette neutralité au niveau du médium virtuel s'est plutôt accompagnée d'une détérioration de la qualité des rapports entre avocats. Le juge Wery note que la culture de l'affrontement judiciaire doit disparaître.

En dépit de ces effets pernicieux, quelques effets bénéfiques sont à noter, incluant:

• La fonction contrôle – e.g. il est plus aisée maintenant de comprendre les temps moyens requis pour chaque type de cause, etc.
• La fonction recherche et présentation: "a trial lawyer's success depends on his or her ability to be clear, simple, and accurate… at the same time"

Le juge Wery, en guide de conclusion, soulève quatre idées en espérant que ces idées seront au coeur de toute réflexion concernant la technologie judiciaire:

• Simplification
• Convivialité
• Cohérence
• Humanisme

Cour du Québec

L'Hon. René de la Sablonnière a conclu la séance plénière des juges avec un survol des technologies présentement utilisées à la Cour du Québec (e.g. réseaux virtuels privés, courriels chiffrés, etc.) ainsi que plusieurs dossiers en cours, incluant le nouveau Centre canadien des technologies judiciaires, le Comité de la magistrature sur la sécurité informatique (COMSI), le projet Intramagis (intranet pour la magistrature) ainsi que le Projet "Conseil sans papier" (CSP) [note: on parle ici du Conseil de la magistrature].

At 9:40 am, the Conference moved forward with three simultaneous tracks:

• Utilisation des technologies dans un contexte de droit transfrontalier (Me Patrick Gingras et Me Philippe Lortie)
• Bridging the Gap: Collaborative Technologies that Bring Lawyers and Clients Together (M. Jordan Robert Furlong, M. Jason Mervyn and Me Dan Pinnington)
• Litigation Management and Support (Mme Luisa Dodaro, M. Joshua C. Gilliland and Me Patrice Morin)

Not being able to follow all tracks (!), I chose to stay in the same room and listen to "Bridging the Gap: Collaborative Technologies that Bring Lawyers and Clients Together". Me Dan Pinnington opened this session by presenting the audience with a variety of tools now can improve communication and collaboration with clients, including:

• Virtual Meetings: CrossLoop (free), gotomeeting (about $50/mth and good for 2-20 people meetings), Adobe Acrobat Connect, WebEx
• IM Chat: Messenger, Skype, GMail Chat, Trillian (can communicate with several other IM clients)
• Collaboration: SharePoint, BaseCamp, WorkShare
• Wikis: pbWiki, TiddlyWikis
• Social Networking: Facebook, MySpace, LinkedIN, Plaxo

Next, Mr Jason Mervyn discussed the business value of his law firm extranets ("Collaborative Technologies: The Experience at Gowlings") and noted the following driving factors for using extranets:

• Support commodity work
• Handle requests from tech savvy clients
• Provide for self-serve clients
• Develop client loyalty
• Develop cross-selling opportunities
• Leverage IT investments

Finally, Mr Furlong gave an example of what would represent a highly valuable lawyer-client model: the automated online legal information and training programs, customized and exclusive to each client, being in effect a custom CLE package with content adapted to each client and updated/refined with each lawyer-client interaction. Although the business case for putting in place such a system might be difficult for law firms to accept at first, Mr Furlong strongly believes that firms that offer such a service will be well rewarded for their investment.

[Note: the health industry is ahead of the legal industry as they already offer, or plan to offer, patient-centric and custom-tailored CLE and post-op online information - see for example HeartCare and Medem]

David T.S. Fraser, from McInnes Cooper, opened his plenary session by emphasizing the fact that the Internet is about relationships – whether one on one (emails), one to few (IRC, chat) or one to many (blogs, Usenet). In this context, the last few years have seen the rapid growth of social networking sites such as Facebook where the success of these sites depends on the voluntary disclosure of personal information by users. If you have a Facebook account… You probably know how the sharing of personal information is easy and attractive when you are "virtually surrounded" by your friends, colleagues and family – and whoever you choose to "add as a friend"! But then, as Mr Fraser notes, which users do take the time to review the privacy settings of their profil on these social networking sites?

By way of example, Mr Fraser mentions that Facebook and Flickr both allow for the easy online sharing of personal information (Facebook) and pictures (Flickr), but their default privacy settings allow other Internet users to see much, perhaps too much of that information – most users are unaware of how to change these privacy settings.

This is highly problematic Mr Fraser notes… "The information [published on the Internet] is persistent and may no longer be under the user's control".

En séance plénière, le Professeur Pierre Trudel, Titulaire de la Chaire L.R. Wilson, a démontré de façon convaincante à quel point le modèle de protection des renseignements personnels (hérité des années '70-'80) est dépassé. Ce cadre n'est plus adéquat pour protéger les individus contre les dangers réels associés aux nouvelles technologies de l'information puisqu'il vise essentiellement la censure des informations publiques.

Le prix d'un cadre juridique dépassé et conçu pour un autre âge est élevé. Il permet la généralisation de pratiques visant à transférer les risques aux Internautes – dans les mots du Professeur Trudel: "le droit de cliquer". En effet, il est maintenant pratique courante pour les compagnies qui vendent leurs produits et services aux internautes de "cliquer" leur consentement à la cueillette de renseignements personnels et à l'utilisation de ces renseignements à plusieurs fins… Et qui prend le temps de lire ces longues pages rédigées dans un jargon souvent… juridique?

Le Professeur Trudel a conclu en formulant le voeu d'un nouveau cadre forçant la justification des usages des données personnelles. Un tel cadre s'attaquerait ainsi directement aux risques réels – l'utilisation des renseignements personnels par opposition à la circulation de l'information privée.

En guise de séance plénière, Me Jennifer Stoddart, Commissaire à la vie privée du Canada, a énoncé deux grands défis pour le Commissariat concernant les technologies de l'information:

• Faire respecter la loi dans un contexte virtuel; et
• Faire respecter les normes canadiennes dans un contexte global.

Me Stoddart a illustré le premier défi avec l'exemple du jeune Torontois interpellé par la police et soupçonné de meurtre: bien que bénéficiant d'une ordonnance de non publication, l'identité du jeune a rapidement circulé sur Internet – que faire dans un tel cas où les contrevenants sont des centaines, voire des milliers de jeunes propageant l'information par Internet, par Blackberry et par messages textes sur leurs cellulaires?

Quant au deuxième défi, Me Stoddart l'a illustré par un incident impliquant Google et le Commissariat. Récemment, Google a, par l'entremise de fournisseurs canadiens, pris plusieurs photos dans les lieux publics de grandes zones urbaines canadiennes dans le but de l'ajouter à son moteur de photo Google Street View. Me Stoddart a demandé à Google d'arrêter cette pratique, puisqu'elle ne semblait pas conforme, dans un contexte canadien, à la Loi sur la protection des renseignements personnels et les documents électroniques.

Le Commissariat demeure vigilant relativement à ces questions puisque déjà plus de 2/3 des Canadiens sont activement présents sur Internet. Cette proportion grimpe dans les zones urbaines et dans les milieux plus aisés. Pourtant, selon les dires de Me Stoddart, Internet demeure toujours "un monde sans loi", et la vie privée des Canadiens devient de plus en plus vulnérable…

La deuxième édition annuelle de la "conférence national sur le potentiel et l'impact des technologies et de l'information pour la pratique du droit" a lieu aujourdhui à Montréal, au Centre Mont-Royal, et il est tout à fait remarquable qu'en si peu de temps la conférence ait acquis autant de crédibilité auprès de la profession juridique. Sous la présidence d'honneur de Madame Jennifer Stoddart, Commissaire à la vie privée du Canada, et du Professeur Pierre Trudel, Titulaire de la Chaire L.R. Wilson; la conférence a inauguré ses travaux avec les mots de bienvenue de Me Bernard Amyot, Président de l'Association du Barreau Canadien et de Me Mathieu Piché-Messier, Président de l'Association du Jeune Barreau de Montréal.

Dans son allocution de bienvenue, Me Amyot a souligné notamment comment plusieurs membres de la profession juridique ignorent encore l'impact des nouvelles technologies sur leurs obligations professionnelles, et comment cette conférence est essentielle pour mettre à niveau les connaissances des avocats dans ce domaine.

Me Piché-Messier a quant à lui dépeint la vision de l'avocat du 21e siècle – branché, informé et pleinement soutenu par les technologies modernes de l'information; et formulé le souhait que le gouvernement encourage le développement technologique dans le paysage judiciaire.

Hello slawyers – here are some pictures of the Leg@l IT Conference in Montreal last Monday… Enjoy.

[this post is the last of a series covering the Leg@l IT Conference]

The last session of the day was the much awaited panel on the topic of e-discovery, featuring Justice David J. Waxse, USA District Court of Kansas City; Me Patrick L. Oot, Verizon Communications; Mr. Robert M. Gerbrandt, TD Bank; Mr. Rafael Gonzalez Caloni, PSS Systems; and Me Dominic Jaar, Bell Canada (Beaudin Legault).

Mr. Caloni put some numbers on the potential importance of e-discovery, noting that in the Verizon v. Vonage case, during 9 months 100 lawyers billed 53,000 hours, 232GB of data as involved, consisting in 2.2 million pages… The "cost of justice" directly amounted to $14M in that case and those costs are still climbing.

Justice Waxse shared some insights with the audience as follows:

• 92% of all new info is stored on magnetic media, primarily hard disks; 8% is on film, paper or optical disks;
• Electronic documents is fundamentally different than paper in many regards – it is virtual, prolific, volatile, free ranging, persistent and has metadata;
• Comparing the burden of keeping paper-based documents as opposed to electrinc documents, he noted that one laptop is the equivalent of 2000 boxes of paper, and one server is the equivalent of 8,000 to 40,000 boxes of paper;
• Types of electronic files range from active, archived, hidden or system files, deleted or residual files, archival files, and metadata;
• There were some recurring problems in the practice of e-discovery, such as data preservation, defining the scope of discovery, form of production, multi-jurisdictional issues, privilege and privilege waiver, shifting or sharing discovery costs, and sanctions;
• The duty to preserve: when does it arise (usually when the notice of claim is served – in the US), what is its scope, and what preservation actions are reasonable under what circumstances.

Me Dominic Jaar commented upon the fact that some e-discovery guidelines are now available, such as:

• Guidelines for the discovery of Electronic Information, in Ontario;
• The Sedona Principles – Canadian Edition (sedonaconference.org – opened for comments now – see the pdf file)
• The BC Columbia Supreme Court Practice Direction re: Electric Evidence (links to a pdf file);
• USA – The Sedona Principles Addressing Electronic Document Production.

Finally, due to the little time remaining, Mr. Gerbrandt was brief (the audience was looking forward to the AJBM cocktail that would follow the conference!), and noted that good records management preventing e-discovery nightmares required moving through definite stages: stage one – thought leadership; stage 2 – early adoption of good practices; and stage 3 – broad corporate integration. He especially noted that it often all comes down to "what is a record", to educating users, and to coach users in making them "let go" of records. As Mr. Gerbrandt puts it, "keep only what you need; and keep it only for as long as you need". Oh… and moving emails elsewhere does not prevent them from being discoverable, from example, from a corporate email account to a personal online email account…

[this post is one of a series covering the Leg@l IT Conference]

Me Yvan Houle, from Borden Ladner Gervais LLP, presented a session titled "La boîte à outils quotidienne: un cabinet virtuel sans papier". His presentation covered the views of a litigator concerning the daily paperless office.

Me Houle took some time to explore the issue of "the importance of paper: myth or reality?" The conclusion was that although paper is not likely to be used any less any soon, less paper will be kept.

He next moved to the case of a national law office with a national clientèle with national needs, using his own firm as an example (BLG). It was highly informative to see the description of the intake process using screenshots, and how software can be of tremendous value to litigators. In particular, Me Houle discussed how litigators at BLG are using Summation, a specialized litigation support software. At the end of his presentation, Me Houle noted that courts are increasingle receptive to new IT approaches.

[this post is one of a series covering the Leg@l IT Conference]

The Judges Panel was the highlight of the conference. I was looking forward to hear the views from the Bench concerning "Judicial IT". The panel included Justice Bastarache from the Supreme Court of Canada, Justice Morrissette from the Court of Appeal of Québec, Justice Wery from the Superior Court of Québec and Justice Waxse from the US District of Kansas City.

Supreme Court of Canada

Justice Bastarache gave the audience many insights concerning the impact of Information Technology at the Supreme Court of Canada. In appeal, some cases are finding their way from the provincial courts to the highest court in various electronic formats, because all provinces do not necessarily use the same standards for electronic court documents. A working Group was formed in 2003 to look into these issues, with the ultimate objective of formulating a plan to improve the "IT-friendliness" of the Court, in consultation with the Canadian Bar Association and the federation of provincial law societies.

In making progress in the realm of Information Technology, the Court is careful, because there is a delicate tension between the need to have tribunals open and accessible and the right to privacy. For example, a court factum, when viewable from the Internet, may contain social insurance numbers, credit card numbers, or affidavit statements that could be considered injurious to a party. The Court is mindful of the need to strick the right balance between open and transparent access to court information and the right to privacy. Many options were considered to achieve this right balance, for example, to strick out the names of the parties and to purge documents of private information.

Justice Bastarache is confident in the capacity of the Court to find solutions to these problems: "Je suis convaincu personnellement que nous allons solutionner tous ces problèmes." This summer, the Court is scheduled to install new equipment in the court room to make it possible for lawyers to plead electronically, for example, by using a Powerpoint slide deck (I guess that DeathByPowerpoint will reach the Court after all!). When the Court resumes its activities after the summer, these new capabilities should be available.

Justice Bastarache announced another change scheduled to occur in the Fall of 2007: factum and memoranda to the Supreme Courtwill become viewable and accessible by the public from the Internet, despite objections by some practitioners related to the preservation of copyright.

Court of Appeal (Québec)

Justice Yves-Marie Morrissette, cartesian as ever, broke down his presentation in three parts: IT and the judge, IT and the Court of Appeal as an institution and the impact of IT on the relationship between the Court and the public.

First, about IT and judges, Justice Morrissette noted that generational resistance impedes IT progress at the Court, because judges on the Court of Appeal (and elsewhere) are, usually, not as quick to accept new work methods leveraging Information Technology. Judges recognize however the increase in the individual ability to conduct online research. As judges increasingly use their computers, they become increasingly dependant on immediate IT support when something goes wrong.

Next, in terms of the institution of the court, currently including 21 judges and 8 supernumerary judges, Justice Morrissette noted the immense advantage of being able to solicit electronic comments on draft judgments as opposed to have a "paper river" betwen Montréal and Québec City where the Court sits (note: all appeal judges are solicited for comments before the final judgment is issued; not only the chosen panel of 3 or 5 judges). Justice Morrissette noted that the court room in Montréal is now ready for teleconferencing ("delocalized") audiences, but the extent to which these facilities are used is limited by the willingness of panel members to use them.

Finally, in terms of the relationship between the public and the Court of Appeal, Justice Morrissette noted that the court's judgments since 1987, practice rules, notices to the legal profession, etc. are increasingly easy to access.

Superior Court (Québec)

Justice Wery, Deputy Chief Justice of the Superior Court, similarly described the evolution of IT in the Superior Court, noting that in 1997, judges had no computers at all – computers started to be issued to judges in 2000 in successive waves. Justice Wery described a number of other improvements, including:

• Audiences are now digitally recorded and recordings are available to judges from their laptops;
• Visual teleconferencing is now possible in the court room; and
• Starting in September 2007, the "requêtes en gestion d'instance" will be heard by phone.

Justice Wery noted that IT appears to have, unfortunately, some negative impacts on the legal profession. Whereas a vitriolic letter used to take 24 hours to get typed and to be available for review by the lawyer before it was sent, thereby offering the opportunity not to send the letter; the 2007 lawyer is quick to fire off rude emails. As Justice Wery puts it, "soyez gentils par courriel – soyez méchant par courrier"! Blackberry's are fine to make an appointment, but he noted that face-to-face meetings are usually much more efficient in letting lawyers find common solutions more quicly, and at a reduced cost to their clients.

On a final note, Justice Wery warned the audience about an annoying and increasing practice of lawyers: "case law dumping" – inundating the court with case law with little or no added value. While IT makes it easier to find relevant case law, it is not because case law is available that is necessarily is pertinent.

The wireless network dropped this afternoon, so I'm resuming the blogging, now not-quite-so-live (!) after a nice Zen AJBM dinner…

[this post is one of a series covering the Leg@l IT Conference]

Me Jean L. Beauchamp presented "Les outils de l'avenir… dès aujourd'hui". His presentation consisted mainly in an overview of suggested tools for the small paperless law office, including:

• Scanning: VRS – Virtual ReScan
• PDF: Adobe Acrobat 8 Pro: to create, combine, collaborate, collect and control
• Telephony: Skype, using the Linksys IP telephone
• File Management: Filecenter (available in French)
• Outlook synchronization in small office without MS Exchange: SynchPst
• Dictation: Philips Pocket Memo 9600
• Voice recognition: Dragon Naturally Speaking, Pro Legal version (note: in a question and comment, Dominic Jaar recommended the preferred version because the added cost of the pro legal version was not worth the differences in features)
• Document Viewer: Rack2-filer

His reference to a Nature article, titled "Ink for Electronic Paper", was also intriguing so I checked it out. Progress never stops!

[this post is one of a series covering the Leg@l IT Conference]

Michel A. Solis, from Solis Juritech, and John D. Gregory, from the Attorney-General Office (Ontario), presented the session titled "Le cadre juridique des TCI dans les provinces de common law". Michel piqued the interest of the audience right from the start with the innocuous question "does an email provide the same legal value as a formal letter?", before he turned the podium over the John.

After briefly referring to 1996 – UNCITRAL Model Law on Electronic Commerce, the 2001 – UNCITRAL Model Law on Electronic Signatures and the 2005 – United Nations Convention on the Use of Electronic Communications in International Contracts; John discussed the legal framework for IT and commerce along the following lines:

• Principles: e-commerce should be neutral with regards to the medium used to conduct transactions and, in addition, be technology-neutral, minimalist, provide equivalent reliability (but not more… fraud exists in paper-based environments; electronic environments should not be subject to exacting reliability requirements that go beyond their paper-based counterparts), consent, security, legal neutrality (i.e. no regulations);
• Rules: no discrimination by reason of the medium, available for later review, signature: intention and form (John noted that in some cases an email header was deemed a valid signature), original: integrity, conservation: integrity and access, sending and receiving: presumptions, correction and rescission, exceptions.

Michel Solis, next, entertained us with a few good stories (I really like his sense of humour!) before he invited us to consider more carefully a variety of examples and issues relating to the formation of an electronic contract, for example, what happens when emails are filtered by a corporate firewall? Michel provided us with a realistic scenario showing how this could lead to litigation. Among other topics, Michel discussed how the LCCJTI (see the Act), s. 3, treated paper and emails as equivalents; and also how the LCCJTI sets presumptions (s. 31) with regards to proof of sending and receiving emails. Michel concluded his presentation with a word of caution: there is danger in too much security – companies must still be able to conduct business; too much security prevents them from conducting business efficiently…

[this post is one of a series covering the Leg@l IT Conference]

Professor Simon Fodden – nice to see you blogging too Simon! :-) – is a well-known founder of the slaw community and recently launched another site for debate and data about the Supreme Court of Canada. He was the obvious choice to speak on the topic of blogging by law professors and judges.

When he stepped on the podium and began his presentation, Simon was very candid in sharing his views to the effect that professors are often too ponderons and lawyers are too careful when it comes to blogging: they miss the opportunity, and reality, of blogging as a medium for sharing views more candidly. "Blogging can be fun", says Simon – "it allows people to formulate their thoughts and make them tangible".

The audience was very interested when Professor Fodden demonstrated, live on the Internet, how easy it can be to create a blog by creating one on blogger. It only took a few minutes, and he was able to create a new blog, online and ready, using his gmail account. The best way to learn about blogs is to experiment, advice to the wiser…

Simon concluded by insisting on the importance of RSS feeds and predicted that the Supreme Court of Canada will offer RSS feeds at some point in the future for its decisions and for new content.

[this post is one of a series covering the Leg@l IT Conference]

Me Bernard Brun presented the session titled "Le blogue: équilibre délicat entre communication et responsabilité". This is a topic of particular interest to lawyers, as they may be called upon to provide legal advice on the responsibility of blog authors.

Before the issue of responsibility was considered, Me Lebrun explained what is a blog, situated the "blogosphere" in context of other media, noted that the blogosphere counts as many as 75 million blogs and is still growing at a fast rate.

Blogs come in many themes – some are personal; others can be professional, political or corporate. The latter type is of special interest to lawyers, as companies have varying attitudes concerning blogging by their employees. The following topics were discussed and simplified:

• A blogger should be considered an editor, or a member of the media?
• The topics, considered in a blogging context, of free expression, dignity, honor and reputation; the impact of posts and comments;
• The control of an author (on content) being a factor that courts consider when evaluating responsibility;
• The permanence of posts on the internet being considered an aggravating factor by the courts, in some cases.

Me Lebrun concluded by asking "would-be bloggers" to be careful of not sharing privileged corporate information, as the sharing of such information can have significant legal repercussions.

[this post is one of a series covering the Leg@l IT Conference]

After the session led by Professor Poulin, Professor Vincent Gautrais, from the Law Faculty, University of Montréal, presented a session titled "techniques du droit du technique".

After a few witty remarks about palindromes and the title of his session; Professor Gautrais discussed the impact of the Loi concernant le cadre juridique des technologies de l'information (LCCJTI), R.S.Q. c. C-1.1 (An Act to establish a Legal framework for information technology) – in particular:

• Article 5 ("The legal value of a document, particularly its capacity to produce legal effects and its admissibility as evidence, is neither increased nor diminished solely because of the medium or technology chosen")
• Article 7 (" It is not necessary to prove that the medium of a document or that the processes, systems or technology used to communicate by means of a document ensure its integrity, unless the person contesting the admission of the document establishes, upon a preponderance of evidence, that the integrity of the document has been affected")
• Article 35 ("A party that offers a product or service by means of a pre-programmed document must, on pain of non-enforceability of the communication or cancellation of the transaction, see to it that the document provides instructions that allow users to promptly advise the party of any errors or contains means that allow users to avoid or correct errors. Similarly, users must be provided instructions or means to avoid receiving unwanted products or services because of an ordering error, or instructions for the return or destruction of unwanted products")

In 20 minutes, Professor Gautrais could only touch upon a few topics and stimulate the audience to find out more about the Dell case (can a contract possible result by clicking a hyperlink on a web page?), "lex electronica" as grey litterature and an increasing source of contemporary legal information, and the notion of "usages" in Legal IT, and their implications, with the following examples:

• Sedona Princples
• Cobit and Sarbanes-Oxley
• Dissemination of financial information
• Security and ISO 17799

Professor Gautrais concluded with many suggestions on how to recognize "les bons usages", and briefly discussed the Nexx Online decision (45 O.R. (3d) 40).

The Association du Jeune du Barreau du Québec (AJBM) is conducting today an innovative and forward-looking conference on "Legal Information Technology" in Montréal, Québec. The conference is co-presided by Justice Bastarache from the Supreme Court of Canada and Daniel Poulin from the Law Faculty, University of Montreal.

This is the first post of a series covering the conference, live.

Me Dominic Jaar from the AJBM (and blog author of Wines and Information Management) opened the conference. He was followed by Justice Bastarache, who shared with the audience an interesting insight from the bench – lawyers beware: the uninformed submissions of thick appeal reference books containing too many decisions do more harm than good. Justice Bastarache commented upon the fact that because IT makes it easy to find all decisions citing precedents, some lawyers submit en bloc all such decisions, without having read them… This example, and others, provided an interesting lead into the underlying theme of the conference as set by Me Jaar: the better use of IT in support of the practice of law.

The first session was presented by Daniel Poulin and titled "Information juridique: les enjeux de demain". Professor Poulin is well know in the Québec and Canadian Legal IT environment (among other reasons – because of his management of LexUM).

Professor Poulin set the historical context of the conference by recalling the milestones of Legal IT development in Québec:

• 1970's: the practice of law was largely supported by paper codes and the Rapports judiciaires de la Revue du Barreau only publish a few hundred decisions per year, the question arises more and more often: are practitioners sufficiently informed?
• 1976 and subsequent years: SOQUIJ is created, then Wilson & Lafleur, Éditions Yvon Blais - legal information becomes increasingly available.
• 1990's: the Internet is increasingly used, SOQUIJ publishes 3,000 judgments per year; the access to legal information is still considered insufficient by many.
• 1993: LexUM starts publishing decision of the Supreme Court of Canada
• 1997: the Répertoire électronique de la jurisprudence du Barreau (REJB) appears in the Québec legal arena.
• Later: CanLII, after 13 years, offers free access to 400,000 decisions.
• 2000: SOQUIJ offers jugements.qc.ca, thereby offering free access to Québec court decisions.

Professor Poulin concluded on the topic of case law with casting the challenge as follows: because the access to decisions is free and easier, which represents a significant shift from the former monopolies on legal information in Québec; how can lawyers deal with this overabundance of decisions?

About doctrine, Professor Poulin noted that in Québec, "legal best-sellers" sell only about 500 copies. The economic model for the publication of doctrine is bleak. However, new ways of disseminating legal information are now available, for example, blogs and wikis.

I'm putting this here for Steven Bilodeau, Crown Prosecutor (Technology & Internet Crimes Coordinator), Alberta Justice – Special Prosecutions Branch:

The government of Botswana has put out a tender for an e-government portal. One of the requirements is for a "Legal Advisor" to advise on legal issues relating to e-government projects and must be a graduate in law with experience handing such projects.

Do any of you know someone who would fit this description? The person putting the tender together wants to approach qualified candidates.

Please reply directly to Stven, at Steven.Bilodeau (at) gov.ab.ca

[cross-posted on Information Management Now]

Last week, several lawyers from the Office of the Judge-Advocate General converged to Ottawa, at the Government of Canada Conference Center, for a National Retreat on integrated information management. The 3-day retreat opened with a one-hour session on Modern Law Practice led by Dominic Jaar, corporate counsel at Bell Canada. Dominic accepted an earlier invitation posted on slaw.

Dominic treated us with something far better than a vision of a future, modern and paperless lawyer: he simply shared with us how he currently worked and demonstrated his day-to-day practice, including court room practice. From accessing remotely the corporate Practice and Case Management System to sifting, filtering and sorting through thousands and millions of documents in the context of e-discovery in a court room setting; Dominic's demonstration was getting the point across very convincingly: it is well worth the upfront investment to become a true paperless lawyer. Whereas he could manage about 30 to 40 cases concurrently, Dominic estimated he could now manage about 110 to 120 cases, with more ease and pleasure.

He also demonstrated several technologies that are part of his Law 2.0 arsenal:

• VPN conduit to the office, enabling him to remotely connect to corporate resources;
• In addition to a Practice and Case Management System, a distinct application to manage, sort, filter, annotate and generally better manage and present evidence in electronic format;
• Whenever authorized by the Judge, automatic voice recognition and transcription of testimonies in his laptop: as witnesses (or anyone for that matter) is speaking in the court room, testimonies and verbal exchanges are automatically transcribed into text;
• Phone service from the computer also, enabling automatic logging of calls into the relevant cases, etc.

If you need a lawyer as speaker for a seminar or conference that is gifted and that has truly gone the paperless route and is also web 2.0 enabled; consider Dominic. He is a member of Sedona Canada (Working Group 7 of Sedona) and regularly writes in the newsletter for l'Association du Jeune Barreau de Montréal. Participants to my Retreat last week were unanimous: his presentation was an eye opener into the future and was very stimulating. We all want him back next year. Now all that you need Dominic, so people can find you easily (especially if they google you); is your very own claimid page. ;-)

[cross posted on Information Management Now]

Dear Slawer-friends -

The Ottawa Citizen (main newspaper of Canada's National Capital Region) featured today a full two page story in the tech weekly section, written by Peter Hum, on Government 2.0 Think Tank ("G2TT"), a private association dedicated to open source government. This marks the official launch of G2TT. More information on the association can be found in the G2TT Charter.

Aside from the interesting aspects of implementing web 2.0 in governments, I suspect that Slawers may be interested by one of the challenges identified in the first G2TT project – Project Eureka: Uninformed Copyright. By uninformed copyright, I mean the automatic "all rights reservered" that comes with information created by public servants (except in the US). By promoting awareness to the fact that licensing alternatives are possible, such as licensing through creative commons licenses, information created by governments ought to flow back more easily back to taxpayers, whenever needed.

Lawyers like to argue, to write, to publish; that's a known fact. When it comes to blogging, there is something special, something uniquely appealing that ought to be pursued; something that makes the connection between the legal community and society better. And that has been nicely stated by Dahlia Lithwick in The American Lawyer, June 1st 2006 edition:

If you combine a journalist's fear of offering a personal opinion with her even greater fear of boring the reader, the result can be legal writing that is too constrained, while at the same time fixates on the details of the human drama at the expense of explaining the legal dispute. By contrast, legal blogging is wonderfully technical and detailed, but also largely accessible and opinionated. In the blogosphere, the taboo on opinionated legal writing has been lifted. Even better, law professors, who can be exceedingly cautious in print, sometimes become slightly drunk on the Internet's thin air. Whereas legal thinkers once limited their most serious scholarship to law review articles, occasionally nipping out into the dangerous world to write an op-ed, now many of them offer off-the-cuff observations about everything from partial birth abortion bans to their favorite CDs, several times daily. The blogosphere thrives precisely because it exists at the interstices of the ivory tower and pop culture. As a result, it's the most fertile ground for cutting-edge law talk.

Thanks to Ian Best (3L Epiphany) for reporting this.

[cross-posted on Information Management Now]

In a recent decision, the Sixth District Court of Appeals (California) has afforded bloggers the same kind of protection usually reserved to journalists. Here is an extract from the judgment:

The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners’ sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)). Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order.

The interesting part starts at p. 35 of the judgment, about "legitimate" journalism. The court states:

We decline the implicit invitation to embroil ourselves in questions of what constitutes “legitimate journalis[m].” The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish “legitimate” from “illegitimate” news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.

Thanks to Somewhat Frank for reporting this.

PS: for the careful reader… you will note that the court used Wikipedia as a reference, in footnote 16.

[cross-posted on Information Management Now]

From June 21st to June 23rd, at the Government of Canada Conference Center in Ottawa, there will be a Retreat for selected legal officers (military lawyers) in Ottawa. On the morning of Day 1, the schedule has the following two sessions:

• Practice and Case Management 101 (30 mins)
• Web Trends & Technologies 101 (30 mins)

Is there anyone interested, preferably but not necessarily a lawyer in private practice from the National Capital Region, in offering these two sessions? We are trying to vary the speakers during this Retreat. This is a nice occasion for networking. If you are interested or know someone who would be interested, please drop me a line at cormier (dot) patrick (at) gmail (dot) com. Thanks!

Dans l'article "A to Z: 26 trends for the legal profession", à être publié dans la prochaine édition du National de l'Association du Barreau Canadien, 26 tendances affectant présentement la profession juridique sont examinées par Jordan Furlong et Mélanie Raymond. Plusieurs de ces tendances sont directement reliées au phénomène web 2.0.

Les auteurs remarquent avec justesse, à la fin de leur article, que ces tendances ne sont ni hypothétiques, ni futuristes: ces tendances se concrétisent maintenant, à chaque jour, qu'il s'agissent de juges qui bloguent, de savoir juridique qui se "wikéfie" (wikéfier. verbe. de l'anglais "wiki", ou "wikify") – voir Wex et WikiLaw, d'avocats analysant l'impact des wikis – blogues – fils RSS et autres technologies sur la profession, et même de l'Université Harvard qui a déjà mené une conférence sur le phénomène juridico-blogique…

Les cabinets d'avocats devraient-ils tenter d'exploiter ce phénomène et les nouvelles technologies s'y rattachant? Je suggère ci-après quelques pistes de réflexion sur ce sujet.

Premièrement, il est utile de comprendre le fameux phénomène web 2.0. Web 2.0 ne s'agit pas d'un mouvement technologique, mais social. Web 2.0 représente un ensemble de nouvelles façons pour les internautes d'utiliser Internet de façon beaucoup plus interactive. L'internaute peut dorénavant publier régulièrement et facilement (les blogues), il peut modifier facilement une foule de pages internet inter-reliées (wiki), il peut recevoir le contenu de ses sites favoris dans un seul lecteur de nouvelles (fils RSS et agrégateur de nouvelles), et ainsi de suite…

Ces nouvelles pratiques entraînent:

• Des changement importants des modèles d'affaires des compagnies opérant dans le domaine virtuel;
• Des changement fondamentaux dans la création, la gestion, la diffusion, la catégorisation, le repérage, la gestion et l'archivage de l'information – incluant aussi l'information juridique;
• Une migration des logiciels vers l'internet (voir l'article "Software as a Service" de Wikipedia) – par exemple, AjaxWrite disponible en ligne qui reproduit assez fidèlement l'interface de Microsoft Word). Voir aussi la rubrique "Ajax's Disruptive Influences" dans cet article de Dion Hinchcliffe;
• Des possibilités intéressantes concernant le déploiement de communautés virtuelles, fondées sur des principes éprouvés "d'architecture de participation". Il faut comprendre cette dernière expression comme un moyen de promouvoir une expérience virtuelle stimulante, qui encourage les gens à participer sur le web.

Un cabinet d'avocats peut tirer des bénéfices appréciables du pénomène web 2.0, si l'analyse suivante est complétée:

1. Tous les cabinets juridiques obéissent à la même logique en matière d'organisation de l'information. Celle-ci est généralement divisé en trois domaines:
   • Les dossiers des clients, typiquement organisés par client, puis par dossier ("client / matter");
   • L'information de référence, incluant tout document ayant caractère de précédent ("material of precedential value"), représentant l'information juridique collective du cabinet; et
   • L'information administrative – finances, ressources humaines, etc.
2. En prenant pour acquis que le cabinet gère de façon optimale ses dossiers clients et ses dossiers administratifs, c'est dans le domaine de l'information de référence que les technologies web 2.0 peuvent avoir l'impact le plus positif.
3. Le cabinet est-il organisé en domaines de pratique ("practice groups")? S'il ne l'est pas, c'est à faire… Voir les arguments à cet effet sous la lettre "P", dans l'article A to Z: 26 trends for the legal profession.
4. Pour chaque domaine de pratique, le degré d'efforts à déployer pour créer un environnement d'information soutenant la pratique du droit est fonction des facteurs suivants:
   • Complexité. S'agit-il d'un domaine exigeant régulièrement des recherches fouillées et que l'exercice est laborieux à chaque fois, puisque le domaine est spécialisé (e.g. propriété intellectuelle et brevets); ou s'agit-il d'un domaine à haut volume (e.g. droit criminel en première instance pour les infraction mineures) – où l'avocat possède généralement et subjectivement toutes les connaissances voulues pour exécuter son mandat? Dans le premier cas, le cabinet a tout avantage à favoriser un environnement dans lequel le partage du savoir subjectif est encouragé, facile et récompensé. Dans le dernier cas, il n'est pas avantageux de déployer des outils de collaboration. Un simple registre d'expertise peu satisfaire les exigences minimales de gestion du savoir.
   • Accès. Les avocats ont-ils un accès libre et facile à des sources d'information juridique afférente à leur champ de pratique (e.g. Lexis-Nexis, doctrine)? Dans la mesure où ces sources sont satisfaisantes, le besoin de déployer un environnement de partage d'information de référence est moins grand. Dans le cas contraire, un environnement où l'information juridique spécialisée est facilement repérable à l'interne procurera un avantage compétitif réel au cabinet.
   • Nombre d'avocats. Le domaine de pratique est représenté par combien d'avocats? S'il y a seulement quelques avocats et qu'ils sont colocalisés, la "gestion du savoir" se fait et continuera de se faire par osmose, au gré de la pratique quotidienne; s'il s'agit d'une pratique nationale, un environnement optimisé pour le partage d'information de référence soutiendra efficacement la gestion du savoir dans ce champ de pratique.

En donnant en exemple ces quatre étapes, j'espère transmettre le message suivant: avant de mettre un place un effort concerté visant à déployer de nouvelles capacités de technologies d'information, il est essentiel de poser et répondre à plusieurs questions fondamentales et de clairement visualiser la situation avant et après cet effort concerté.

Une fois cette vision clairement établie, chaque milieu, chaque cabinet aura une façon différente de procéder – par exemple, dans un milieu gouvernemental où il y a beaucoup d'avocats:

• Plusieurs directives de gestion d'information peuvent être nécessaires (exemple);
• Plusieurs facettes du cabinet peuvent être à revoir (exemple) – incluant la gestion des renseignements consignés (exemple);
• Plusieurs technologies d'information peuvent être nécessaires (exemple);
• Et bien sûr, un plan doit être élaboré, communiqué…

La clef de la réussite, dans ce domaine, consiste à définir avec soin l'environnement d'information optimal en fonction des facteurs énoncés ci-haut; à doser les efforts consacrés en fonction des bénéfices espérés et, surtout; faire en sorte que ce nouvel environnement d'information soit utile et apprécié par les utilisateurs finaux: les avocats!

[article aussi publié sur Information Management Now]

I have been following 3L Epiphany posts for a while and I was pleasantly surprised to see that some judges are blogging.

The author has even sent the following survey – two judges have answered and granted permission to publish their answers to the following questions:

1. When you cited a legal blog, did you consider it unusual or unprecedented at the time?
2. How often do you read legal blogs?
3. Which are your favorite legal blogs?
4. Do you consider blogs to be substantial and legitimate forms of scholarship?
5. Do you think legal blogs will begin to be cited more often by the courts?
6. What predictions do you have about the effect of legal blogs on the profession?
7. What other changes to the legal profession do you foresee because of the Internet and the online world in general?
8. Do you regularly read law reviews? If so, which are your favorites?
9. What advantages and disadvantages do legal blogs have when compared to law reviews and other traditional forms of scholarship?
10. Do you have an opinion about whether law students, lawyers, and/or law professors should blog?
11. Do you think it is appropriate for judges to blog? If you were to start one, what subject(s) would you write about?
12. (Off the subject of blogging:) If you could change one thing about the legal educational system, what would it be?

See the answers by Justice Judith Lanzinger (Ohio Sp. Ct.) and by Justice Richard G. Kopf (U.S. District Judge, Nebraska). Fascinating.

[cross posted on Information Management Now]

[cross posted on Information Management Now]

3L Epiphany wrote a very interesting taxonomy of legal bogs. On March 17th, 2006, the list was up to 686 legal blogs, all categorized and sorted. A definite resource for anyone interested to witness how many law blogs, or blawgs, exist out there.

[cross-posted on Information Management Now]

For the past several months, I have been diligently exploring how Web 2.0 technologies could better support the work of lawyers. I'm happy to report my findings in this discussion paper, albeit in a particular context, using a TiddlyWiki. If you are interested in what it takes to write a document like this, make sure you check the About section in the paper.

Comments and suggestions are welcome.

Well, I will agree with Dennis M. Kennedy's recent post on this: the idea that "Attorneys Aren't Knowledge Workers", by Ron Baker, is worth to read and is thought provoking.

Ron presents an opinion essentially to the effect that attorneys are not knowledge workers because "being a knowledge worker also requires that the leaders of your organization recognize and treat you like one."

Lawyers are knowledge workers. I fundamentally disagree, for semantic reasons, with the proposition that "lawyers are not knowledge workers".

I do not take issue with the laudable characteristics that should be associated with "lawyers as knowledge workers". As written in Ron's post; knowledge workers:

• Don't have billable hour quotas.
• Spend at least 15% of their time innovating and creating better ways to add value to customers (this destroys efficiency under the old metrics!).
• Understand that judgments and discernment are far more important than measurements in assessing performance.
• Are focused on outputs, results and value, not inputs, efforts and costs.
• Don't fill out timesheets accounting for every 6 minutes of their day.
• Are trusted by their leaders to the right thing for the firm and its customers.
• Are passionate and self-motivated, and don't need constant supervision.

The previous list has little to do with knowledge workers and everything to do with effective executives. Take a look at the short book written by Peter DruckerDrucker, Peter, "The Effective Executive". Note: being an effective executive does not require supervision of employees, rather, it is a question of attitude and focus and the delivery of meaningful contributions to your organization, according to Peter Drucker in this book., you will immediately recognize most if not all previous list items.

If data is a series a facts, information is data given context and knowledge is information internalized (the context of these definitions is available here); being a knowledge worker is not a question of fact but of degree. Some people are "more" knowledge workers than others because of the degree to which (a) they have to rely on internalized knowledge to produce their services or products; (b) they have to apply analytical and intuitive skills to effectively sort through internalized knowledge in order to better serve their clients; and (c) they have to invest time and effort to internalize legal information, thus gaining legal knowledge.

On the latter count, lawyers have to invest significant time and effort, years of effort, in order to gain their credentials and to be admitted to the Bar. In addition, they typically have to resort both on this internalized knowledge and on their own analytical skills to deliver legal advice and services. This can be all done with time sheets in 6 minute increments… We may not like it, we may resent billable hour quotas, we may resent the lack of trust; but in the end, the degree to which lawyers are knowledge workers should not be measured with the effective executive yardstick.

The issue of whether lawyers should be treated as effective executives is not a knowledge worker issue, in fact, it is a non issue. If a lawyer has it in him or her to be an effective executive, that person will, eventually, be treated as one by the organization. If this does not happen, chances are that lawyer will find a new home.

As I read two recent posts on the subject topic (Business and I.T. Must Work Together to Manage New "Web 2.0" Tools by Dennis D. McDonald and Jeremiah Owyang and The Lawyer-IT Dialogue by Simon Fodden), I realized how much of a universal challenge the relationship is – between lawyers and Information Technology (IT). Why is this relationship challenging?

Lawyers share a common context with their clients. Lawyers must be familiar with the problems and issues of their clients. On the other hand, bankruptcy & insolvency lawyers, criminalists and litigators (for example) are not, by default, knowledgeable about Information Technology in general and Web 2.0 in particularMany references on Web 2.0 can be found here..

The lack of shared context between lawyers and IT is unfortunate, because Web 2.0 trends and technologies can benefit lawyers and law firms in a number of ways.

For example, in this roundtable (from Law Practice TODAY) with Dennis Kennedy, Tom Mighell, John Tredennick, Stephen M. Nipper and Frederick L. Faulkner; a number of key web 2.0 technologies are discussed:

• What is Web 2.0
• Examples
• Wikis
• Blogs
• RSS
• Web 2.0 Applications
• What does it mean for lawyers

Aside from the technology aspects of web 2.0, there are also interesting legal issues related to blogging (a web 2.0 technology) and disintermediation consequences to the application of web 2.0 technologies to the legal profession – sometimes wrapped-up in the term "law 2.0".

Web 2.0 matters for the legal profession, because it promotes an information environment in which lawyers can simplify access to material of precedential value. The difficulty consists in selecting and optimizing the right mix of these technologies; finding how to leverage them and especially how to carefully deploy them within an integrated information management (IM) framework.

Information Technology (IT) is just one of many enablers of IM; IM in itself being one key enabler to all knowledge-based organizations. This simple truth is often overlooked and results in the direct dialogue between lawyers and IT staff. This is problematic.

All too often, we have an unproductive corporate dialogue that looks like this:

This relationship eventually ends as follows:

Not very productive! It might be more appropriate to insert an intermediary function called "IM" between lawyers and the IT staff, giving us:

These "models" (thanks to Doug O'Brien, manager at Natural Resources Canada, for sharing his insights on topic in that simple and humoristic form) make several assumptions:

• By "IM", we mean a corporate function that looks at Information Management holistically in which all IM facets are integrated (see Standardized IM Frameworks here), including, for example, records management, access to information & privacy, library services, research services, standards, education, training, so on and so forth;
• By "IT", we mean a corporate function that represents the more traditional Information Technology activities, technical and "problem solving" in nature – networks, hardware and software fleet management, application development, etc.

Going back to the White Paper published by Dennis and Jeremiah, they approach the issue by asking "how should IT be involved?" The challenges they evoke (Chicken & Egg problem, Ownership Policy, Technology Trends, Employee Responsibility – on that topic see related legal issues, Crisis Management and Influence vs. Control) are all real challenges. I suggest that their paper points to a missing piece in the organizational picture: an intermediary function, or person or Department, providing the necessary interface between IT and the business. Such people know the language of the business and of IT.

In a law firm, for example, this person might be a lawyer with a strong IT background, knowledge and interest. This allows business users to remain focused on their business and IT staff to remain committed and engaged in IT problem solving without the unfair added responsibility to tackle the whole IM Problem Space.

Simon Fodden raises a similar challenge in the context of a law firm here. I wholeheartedly agree with one of his remarks:

Ideally, there might be a CIO or CKO who has the status of a partner, whether or not she/he is in fact a lawyer-partner. This person would understand both worlds enough to know what questions to ask, what issues to pose, and what policies to impose or recommend. If this truly important mediation role is left to chance, such as when it's dependent on the fact that Mary or Ali, otherwise a librarian or an associate or an office manager, happens to have a background that facilitates things, the firm is vulnerable and may not be putting things on the best footing.

Considering law firms and lawyers thrive on information, it is well worth the investment to have a dedicated IM function and to position IT as an enabler of IM and, in turn, IM as an enabler of the business. Lawyers will find in Information Managers, as opposed to IT specialists, kindred spirits willing to explore their issues and challenges and provide advice and recommendations based on all 24 facets of Information Management as opposed to IT only.