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Archive for the ‘Practice of Law’ Columns

A Proposal for Automated Online Dispute Resolution, Part 1

This essay proposes a set of draft standards for automated online dispute resolution (AODR). The drafts I propose here are for transactional disputes, and specifically for AODR that generates arbitral awards in the millions of claims for debt and breach of contract. This proposal does not consider AODR for torts or disputes with non-AODR-compliant evidence or claims.

The AODR promise is simple and a little mind-boggling:

  • Take millions of claims out of the court system.
  • Reduce cost of dispute resolution (pre-enforcement) to zero.
  • Increase speed of dispute resolution (pre-enforcement) to infinity (limited only by bandwidth and machine capacity).
  • Give a
. . . [more]
Posted in: Practice of Law

It’s a Law Firm, Not a Love Song: It Can Carry on Without You (For a Week or Two)

“(T)o build my career is to make myself indispensable, demonstrating indispensability means burying myself in the work, and the upshot of successfully demonstrating my indispensability is the need to continue working tirelessly.”

That’s journalist Ryan Avent talking about why he’s reluctant to do something that would help his personal life even though it would have a minimal effect on his professional one.

His circular argument will sound very familiar to lawyers. In a business where success is measured by the billable hour, busy-ness is the key to upward mobility. No one wants to miss a step on the career path . . . [more]

Posted in: Practice of Law

A Failure of the EDRM Model

The Electronic Discovery Reference Model has become something between a standard and an idée fixe in the e-discovery world.

One of the models the EDRM organization propagates is the EDRM Project Management Framework (courtesy

Superficially, this looks terrific, hitting all the right buttons. Project management itself, wonderful. Communication, check. Plan before you execute, great. Change management, woo-hoo!

But… how does it measure up against the real world?

The main problem with diagrams of this sort is that they attempt to map that real world by eliminating complexity and complications rather than by providing patterns or techniques that support beneficial . . . [more]

Posted in: Practice of Law

Think Again – Improved Productivity Starts Here

Have you ever noticed how your thoughts can really trip you up?

There are all kinds of tricky thoughts that can get us into trouble. Here are five versions of one simple I’ll get around to it later thinking trap that has major implications for our productivity:

I need a dedicated block of time for this task.

There’s not enough time for it now.

I will find time for it when I am not so busy.

That’s too big a project to start right now, and it’s not due right away anyway.

I just don’t have the capacity to deal . . . [more]

Posted in: Practice of Law

A New Way to Oppose the Admissibility of Records

Soon, the very procedures used to produce a National Standard of Canada (an NSC) upon which the electronic records provisions of the Evidence Acts depend, will create another way of opposing the admissibility of records. That will undermine litigation based upon records, particularly criminal prosecutions. So you’d think the federal Department of Justice would be rushing to protect the Crown’s case. Well read on, then think again.

In regard to best evidence rule issues, admissibility of electronic records requires proof of the “systems integrity” of the electronic records management systems (ERMSs) in which the records are recorded or stored; see . . . [more]

Posted in: Practice of Law

A Talk With the Prime Minister

One of my highlights at Davos this year was a closed meeting with the newly elected Canadian Prime Minister Justin Trudeau. We were with a small group of international civil society organisations from the field of human rights, rule of law and peace. The meeting was held under the Chatham House rule so I will not disclose what others or the PM said. Nothing in that rule however prevents me from telling you what I contributed.

Each time I am at Davos I marvel about how many great ideas for solving global and national challenges I come across. Poverty, education, . . . [more]

Posted in: Practice of Law

The Law and Business

A recent article on Above the Law came into inbox titled, “Law Schools Are Not Exposing Students To Real World Business.” Hooray, I thought, recognition, even if from an imperfect source with more than one axe to grind, that the law is both a profession and a business.

I was only slightly disappointed to discover that the last word had been cut off. Business Development. Rainmaking, in other words. (Click here for the actual article.)

Biz Dev is important – pay the bills and all that – though I’m not convinced it needs to be taught in law school. . . . [more]

Posted in: Practice of Law

Shiny, Happy People

Early in January my spouse and I went on a winter vacation to the Caribbean. The charming island nation of Barbados was our destination for two weeks followed by a meeting in Quebec and a family visit in Ontario. Almost three weeks in total. Travelling from our home in Yukon made for a long journey that saw us pass through seven airports in six different cities: Whitehorse, Vancouver, Toronto, Quebec City, Windsor and Bridgetown (Barbados). The highlight of our trip was certainly the place where it was light by 6 am with shorts and t-shirt weather right off the bat  . . . [more]

Posted in: Practice of Law

Happily Stressed Out in 2016

2016 has the potential to be an absolute game changer year for all of us in one important area our lives – stress.

Show me a person in the legal industry who does not experience stress and I will show you a retired person. (Although in all likelihood they are probably still stressed!)

I used to think that reducing stress was a vitally important goal. Now I know there is something else we need to do with it – embrace it.

Kelly McGonigal’s Ted Talk and the research detailed in her book The Upside Of Stress: Why Stress Is . . . [more]

Posted in: Practice of Law

The SCC and Lawyers Need Better Researchers Than “Clerking” and Law Students

“Clerking” is courts using law students to perform legal research duties. Obsolete, because: (1) it uses the least experienced of legally-trained people as the basis of the most important legal service—legal advice and opinions—and, (2) because it is too cost-inefficient. A webpage of the Supreme Court of Canada states, inter alia: “Law Clerk Program: “Qualifications – Bachelor of Laws or Juris Doctor from a recognized Canadian university or its equivalent.” But that is not adequate for what’s coming.

An equally important reason for creating a much more sophisticated and competent legal research facility for the legal . . . [more]

Posted in: Practice of Law

Sometimes Laws Are Too Important to Be Left to Lawyers — Lawyers Without Technical Support

This article explains how to prevent the very damaging ignorance and avoidance of the technology that underlies widely used important laws. For example, the probability of wrongful decisions, in both civil and criminal cases, has been raised to what should be considered to be an unacceptably high level by the very false and unanalyzed (blind) assumption that electronic records technology is just a speeded-up and more convenient version of paper records technology. In fact the wordings of the electronic records provisions of the Evidence Acts declare the law to be that they are very different technologies.

As examples of the . . . [more]

Posted in: Practice of Law

Looking Through the Rear View Mirror

We are reaching end of the year. My column is about the practice of law, so why don’t I take you through quick tour of where the end of 2015 brought me?

Much movement on measuring. Once, not all that long ago, the very idea of asking users of the justice system how they experienced its performance was considered daft. I still have workshops every now and then in which judges and ministry officials hint that asking the customers and making their views public could infringe judicial independence or the democratic process. Measuring justice has not been mainstreamed on . . . [more]

Posted in: Practice of Law