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Archive for the ‘Practice of Law’ Columns

Evidence Based Upon National Standards Might Thereby Be Unreliable

I’ve endured a very worrisome and incompetent drafting of an intended second edition of this National Standard of Canada (an NSC): Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (“72.34,” developed by the Canadian General Standards Board (CGSB)). Its intended purpose is, to be Canada’s most authoritative standard as to the proper operation and maintenance of electronic records management systems (ERMSs). Therefore it can be used to test the “integrity” that provisions such as, s. 31.2(1)(a) of the Canada Evidence Act (CEA), and s. 34.1(5),(5.1) of the Ontario Evidence Act (OEA), require of ERMSs, for the purpose of determining the admissibility of . . . [more]

Posted in: Practice of Law

‘Justice Doit Être Ouvert Vers La Société’

This was the core message in the opening address of minister Mamadou Konaté to the first conference of public prosecutors of Mali held under the theme ‘the public ministry for public action’ early November. ‘You are’, he said to the prosecutors, ‘a key advocate of the public interest and an advance post into society for justice.’ Minister Konaté wants this conference to take place every year – a gathering at which to reflect on standing up for the public interest and better serving the citizens of Mali.

He is an impressive and hugely driven figure: a lawyer with more than . . . [more]

Posted in: Practice of Law

A Modern Associate Manifesto (Beta)

A spectre is haunting law firms — the spectre of #NewLaw.

There are three things every law firm associate hates: long hours, working on weekends, and their boss. Oh, you think your junior does not hate you? Oh, ok.

Here is the low-down on the traditional law firm:

1) Partners who own the firm make money by selling associates’ labour.

2) Partners sell associates’ labour by billing clients by the hour.

3) Partners pay associates’ fixed salaries regardless of overtime (but they do, sometimes, pay bonuses).

4) At least in Ontario, Canada, statutory employment standards with respect to hours, . . . [more]

Posted in: Legal Technology, Practice of Law


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

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

Posted in: Practice of Law

One Good Habit All Associates Need to Break

Miranda is stressed out and fighting fires on all her files. A slew of sudden departures and maternity leaves have left her as the lone associate in a busy corporate practice. She has more work than she can handle and is behind on it all despite working long days and taking no holidays. Yet when a partner comes by to ask for her assistance on a large transaction that is heating up, she finds herself agreeing even though she knows something is going to give.

Are you like Miranda?

  • When asked for help is your first and immediate answer Yes
. . . [more]
Posted in: Practice of Law

Technology, the Fiduciary Duty, and the Unaffordable Legal Services Problem

The concept of a legal profession should have a strong social welfare aspect to it such that its distant goal is to make a community’s legal health as important to it as its medical health, and its lawyers as important to it as its doctors. Technology can do that. Unfortunately it is becoming a more distant and unattainable goal because our law societies are moving us in the wrong direction.

All efforts are aimed at helping the population learn to live with the problem of unaffordable legal services, but there are none to solve the problem. Law society benchers . . . [more]

Posted in: Practice of Law

Idiot Lights

I’m old enough to recall cars that had useful gauges – the cooling-system temperature gauge, for example.

Nowadays they have on/off indicators, referred to as “idiot lights.” Such as the check-engine light. The idiot light that this morning is illuminated in my car. I’m writing this article while sitting in the dealer’s waiting room until they attach a computer to my vehicle to diagnose the problem. (And then charge me a bunch of money to fix it.)

The car’s computer system stores a diagnostic code that the dealership’s computer will retrieve, at least as I understand it. What I don’t . . . [more]

Posted in: Practice of Law

Delaying Justice Is Denying Justice – a Senate Committee Report

The Senate Legal and Constitutional Affairs Committee’s Eight Report: Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (published, August, 2016), must produce a final report by March 31, 2017.

1. The Major Shortcomings of the Committee’s Report

Appendix A to the Report is this List of Recommendations (p. 16):

Recommendation 1: The Committee recommends that the Government of Canada work with the provinces and territories as well as with the judiciary to examine and implement best practices in case and case flow management across Canada to reduce the number of unnecessary appearances and . . . [more]

Posted in: Practice of Law

Divorced From Reality

Gillian Hadfield just came out with a fabulous book: Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy. In it, she argues that the design machine we have for making rules that work for people in the world of today is broken. What it produces is of inferior quality: often out-dated, too complex, and it does not always solve the problem.

No wonder: the fast-moving, internationalized world of today with its technological developments and daily outpours of new, profound knowledge about our very being as humans is a . . . [more]

Posted in: Practice of Law

CBA Online Mental Health Course Celebrates a Successful First Year

Last year the CBA took an important step in a direction it seems a lot of its members had wanted it to go – providing information and guidance in the area of mental health.

Since Mental Health and Wellness in the Legal Profession, developed in association with Bell Let’s Talk and the Mood Disorders Society of Canada, was launched online almost exactly a year ago more than 1,500 people have participated in the course, which was designed to help people in the legal profession understand mental health and addiction issues and to point them in the direction of available . . . [more]

Posted in: Practice of Law

Guilt by Mobile Phone Tracking Shouldn’t Make ‘Evidence to the Contrary’ Impossible

This is a brief outline of an article that I have posted on the SSRN, using the same title (pdf download). Mobile phone (cellphone) evidence will be among the most frequently used electronically-produced evidence of location. How does a defendant produce “evidence to the contrary” for purposes of challenging its reliability? Rare and very difficult it will be that one might get access to the complex electronic systems involved, to search for such suspected “evidence to the contrary.”

A mobile phone can be located at the time of a particular call by finding the mobile phone tower that directed . . . [more]

Posted in: Practice of Law

Six Strategies for Dealing With Fear, Worry, and Self-Doubt

As we journey through our professional careers, one valuable tool to acquire is a personal formula for overcoming the inner obstacles that often hold us back from taking on vital challenges, rich with learning and opportunity.

Fear and self-doubt don’t just come up for newly called lawyers, they also vex seasoned lawyers as well.

When I think back on this past year I remember of couple of my own brushes with these inner obstacles and the sinking, heavy, feeling that comes with them.

Oh no, I am not up for this.
I am going to fail this.
I am not
. . . [more]

Posted in: Practice of Law