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Archive for the ‘Practice of Law’ Columns

Existence Before Essence: On Identity and Adaptation in the Legal Profession

I’ll start by showing my cards: I’m an existentialist. I believe in Jean-Paul Sartre’s creed, the obtuse-sounding rallying cry “existence precedes essence”, which in law-conference circles would elicit, more often than not, a guffaw and a snobbery beyond what I’d typically impart. But my qualms leave me as leaves on a tree – they fall with age. I take the existentialist creed to mean that a person’s identity is defined by this action, right now. And every subsequent action re-defines a person again. There is no identity other than the identity we choose. And the past fades away into the . . . [more]

Posted in: Practice of Law

Empathy for the Disrupted

I use both taxis and Uber, depending on the situation. Here’s at least one thing that differentiates each from the other.

If you’ve taken a taxi in the last few years and the subject of Uber has come up (almost certainly raised by your driver), you know how much cabdrivers just hate that company. They absolutely loathe it. In my city, taxi drivers wrecked rush-hour traffic for several days by staging massive protests against Uber before it even arrived. (They did not win any hearts and minds in the process.)

But what’s interesting is that during all the Uber rides . . . [more]

Posted in: Practice of Law

Hire Me. I Won’t Work Hard for You.

What kind of lawyer are you looking for? Someone who will work 9 to 5 9, 12+ hours a day, weekdays and weekends? Someone who will sacrifice his weekend, his time with his family, his hobbies, his health, for you? Someone who will stop everything to service you? Someone who will respond to your texts like a physician on call every second of the day and every day of the year? That ain’t me.

There was a night, early in my career, when I sat in my office exhausted and tired. I looked out into the city skyline and thought . . . [more]

Posted in: Practice of Law

Law Society Policy for Access to Justice Failure

[Download the full text for this summary from the SSRN.]

Law societies appear to be powerless to serve the public interest by defending lawyers’ markets against three major threats:

(1) the access to justice problem (the A2J problem of unaffordable legal services for the majority of society that is middle- and lower-income people), which has left the majority of law firms short of clients;

(2) the commercial producers of legal services such as LegalZoom and Rocket Lawyer, now have millions of customers, who are now here in Canada beginning the same process of invading lawyers’ markets, along with the . . . [more]

Posted in: Practice of Law

How to Better Deal With Stress in Law Firms

“Survival mode is supposed to be a phase that helps save your life. It’s not meant to be how you live”.
Michele Rosenthal, Author and Trauma Therapist.

Whether I’m coaching individual lawyers or assisting a firm with a strategic plan, inevitably the concept of stress management will arise. It could be at the heart of an under-performing lawyer; it could be blocking teams from executing on their practice group or client team plans; or it could be holding back the implementation of a new firm program. Sometimes stress is the obvious culprit; sometimes it’s under the surface and takes a . . . [more]

Posted in: Practice of Law

Reforming Ontario’s Family Law Justice System

Despite the best efforts of our dedicated and tireless Family Court judges, they are becoming overwhelmed. There are many reasons for this phenomenon I am sure including the fact that governments across Canada spend roughly only 1% of their annual budgets on the justice system[1]. One of them is what has been termed the rise of the “self represented” litigant. Self represented litigants are not necessarily a problem despite what you might hear in the media and read in studies[2] undertaken to try understand the reasons behind their “rise” and to offer to solutions to deal with . . . [more]

Posted in: Justice Issues, Practice of Law

How Can We Talk About It?

We urgently need to figure out how to talk about justice systems at the highest political level. As I have said before in this column: globally, justice systems are not delivering. Read the report of the Task Force on Justice. We need to make them better. That requires a new type of justice leadership and a new way of talking.

On 19 and 20 June the ministers of justice of the G7+ met for two days in The Hague. The fact that they met made me rejoice. You can’t have enough ministers of justice sharing experiences and getting . . . [more]

Posted in: Justice Issues, Practice of Law

The Ten Laws of Legal Project Management: Barriers to Progress and Client Issues

This is the third column of a series on the Ten Laws of (Legal) Project Management. I’ll recap the ten laws at the end of this column, but for this month, let’s focus on some barriers to progress (Laws 3 and 4) and a pair of client-related suggestions (Laws 5 and 6).

By the way, the title of this article represents two different ideas. If you think of your clients as a barrier to progress, we may have a bigger problem here.

3. When You Discover You’re Digging a Hole, Stop Digging

Technically, this law is called the sunk-costs . . . [more]

Posted in: Practice of Law

Mental Health in the Legal Profession: Are We Asking the Right Questions?

On April 6th, 2019 the Canadian Bar Association hosted its first ever Health & Wellness Conference at the Shaw Center in Ottawa. Covering topics such as technology-based resources for mental health promotion, addressing the stigma of mental illness, reducing the risks of secondary trauma and compassion fatigue, and the state of addictions among lawyers, the Conference was an all-encompassing look into some of the most pressing issues facing our profession.

As I listened to the presentations and the informal discussions that took place throughout the day, I was repeatedly struck with the thought, or rather the question, “are . . . [more]

Posted in: Practice of Law

The Biz-Ification of Law

“Competitive markets are not much fun for sellers” – Richard Posner

It’s common knowledge that the billable hour is holding back the profession. Additionally, it’s clear that professional conduct rules insulate lawyers, prevent other professionals from getting involved, and stifle innovation. Yet, despite the billable hour still going strong and no changes in professional conduct rules, we are seeing an unprecedented boom in innovative legal services. It feels like something bigger must be going on.

Market cycles

While the literal number of lawyers remains a significant factor, more important is its ratio to finance, insurance, and real estate (“FIRE”) . . . [more]

Posted in: Legal Technology, Practice of Law

Electronic Systems Are Trusted Far Too Much as to Producing Reliable Evidence – the Oland Example

Most of the evidence now used in legal proceedings and for legal services comes from complex electronic systems and devices. But because of ignorance of technology in general, lawyers don’t challenge the reliability of such frequent sources of evidence. As a result, computers, their software, and computer storage, are dealt with as though they were infallible producers of evidence. As a result, so does the law of evidence. But the technical literature warns repeatedly that software-based devices and systems are far from infallible. Therefore, the evidence they produce may not be reliable. The following articles provide several examples and accompanying . . . [more]

Posted in: Practice of Law

What We Lose in the Chase for the Almighty Dollar

My generation, filled with existential angst, suffered in our youth the conceit that we would not sell out as those before us did. If Kurt Cobain was the hero of our time, it was because he was authentic to the end, true to his music but not the business. And for those of us who stumbled into this profession, I ask, how many of us wrote a law school admissions essay filled with lofty ambitions to better the world, and of those, how many are left living true to those ambitions? I have seen, no, even worse, convinced, classmates and . . . [more]

Posted in: Practice of Law