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Archive for the ‘Practice of Law’ Columns

Law Society Policy for Access to Justice Failure, Part Two

[see the full text on the SSRN (updated in March, 2020)]

The comment of the Treasurer of the Law Society of Ontario (Malcolm Mercer, its CEO) responding to my first article having the above same title, published in Slaw, on July 25, 2019, contains the following objections:

1. That I am wrong to say that law societies should be defending lawyers’ markets. He states:

Rather, the principal role of the Law Society under the Law Society Act (Ontario) is to (i) determine what legal services should appropriately only be delivered by licensees and the appropriate scope of practice

. . . [more]
Posted in: Practice of Law

Lawyering in a Time of Corona

IT WAS INEVITABLE: as the courts shut down and the work-from-home edict spread, I was reminded of Luddite lawyers sitting in their offices. It would be a gargantuan undertaking to take files to and fro between home and office, and impossible to convert to a paperless office in the blink of an eye. Not surprisingly discoveries and mediations were cancelled, revealing those behind the curve. What we have preached as best practice for decades is now the only practice: paperless remote work is the one game in town.

Speaking of behind the curve, the conservative-to-a-fault Law Society of Ontario relaxed . . . [more]

Posted in: Practice of Law

Managing Remote Professionals

We interrupt this program, as they say. Life has intervened, and many of us are working remotely.

Remotely, in this case, is a synonym for “home.”

For many lawyers, managing professionals who are not in the office – who are not in any office – is new, and may feel like one of those old maps whose edge bears the legend There be dragons here.

Let’s try to slay a few of those dragons, or at least encourage them to find other prey.

Treat Them as You Want to Be Treated

This tenet should apply at all times, of . . . [more]

Posted in: Practice of Law

Lessons Learned From a Firm Breakdown

The line between bad strategy and a law firm collapse is as thin as a noose. Yet law firms practise bad strategy on a regular basis. Take heed from the lessons of a very public breakdown.

A client recently gave me a copy of Norman Bacal’s book “Breakdown, the Inside Story of the Rise and Fall of Heenan Blaikie”. I was familiar with the story, having lived through it as a horrified observer in 2013. I also met Norm a few years ago when we were both speakers at the same conference in Toronto: him on how a firm implodes, . . . [more]

Posted in: Practice of Law

It Kind of Works

You can’t really miss it: a huge square concrete wall full of graffiti. In the middle, a dignified sign in UN blue & white. Casa Justitia Cuidad Bolivar. This is not a chique neighbourhood. Small taxi’s, old trucks, and most people take the bus. There’s also the cable car to get to the higher parts of the barrio. The building is attached to the municipal offices. Local justice and administration, hand in hand. Around them, the small shops and café’s that form the livelihood of some and a critical service for others. This is down-town, everyday life.

Houses of Justice . . . [more]

Posted in: Justice Issues, Practice of Law

The Future of Justice in a COVID-19 World

I wrote this column and submitted it to Slaw on March 6, back when we didn’t know how good we had it. I’m writing this new prologue on March 17, with much of Canada and the world effectively in lockdown because of COVID-19.

I thought about rewriting the column to reflect our new reality. Instead, I’m adding a frame around it, because I think the column still stands on its own merits. But COVID-19 and our societal responses to it are in the process of crushing our slow, creaky, in-person justice system, and the lessons here about human-centred design are . . . [more]

Posted in: Practice of Law

Mismanaging Time: How Not to Manage Projects, Part 2

This is the second article in a series about mismanaging projects. In other words, if you can avoid doing the stuff here, you’ll be on the road to managing projects effectively.

There are five aspects you have to manage to move projects forward effectively:

  1. The project itself, discussed in the previous column.
  2. Time.
  3. Money.
  4. The client.
  5. The team.

Let’s talk about mismanaging time. This topic is complex, and I’ll break it into two sections, concluding in my next column.

The Matrix of Project Times

The table below flags time-related issues on three different scales for various aspects of a project . . . [more]

Posted in: Practice of Law

Are Law Firms as Profitable as They Could Be?

It is pretty clear that, in the past, lawyers did a great job disrupting themselves.

The term “disruption” comes from Clayton Christensen’s observation that the ability of a company to make a higher and higher performing product always outstrips the ability of customers to make use of these performance improvements. As technology pushes a product’s performance into “performance oversupply,” it changes the circumstances of the market. It becomes harder for to sustain attractive profit margins on the product. Companies in other parts of the value chain can begin to steal market share, or “disrupt” the incumbents. Companies find themselves . . . [more]

Posted in: Legal Technology, Practice of Law

Three New Law School Concepts

It is possible that traditional law schools will reinvent themselves structurally from the ground up and become exemplars of innovative 21st-century lawyer formation. It is also possible that I will play Polonius, the irritating giver of unwanted advice, in the Royal Shakespeare Company’s next production of Hamlet. Both these scenarios would be welcome (especially Act III, scene iv, when the advice-giver behind the curtain finally gets what’s coming to him).

More likely, however, the reinvention of lawyer formation will begin outside of our legacy law campuses. Ryerson University’s new law school is a very promising entrant in this burgeoning . . . [more]

Posted in: Legal Education, Practice of Law

Why Mentoring Programs Fail (And How to Fix Them)

Most law firms intuitively understand the value of mentoring. Unfortunately, that rarely translates into a successful mentoring program. Here’s what’s wrong with them, and how to fix them.

There are so many skills a young lawyer needs to develop in their formational years, and so little time in which to do so. Additionally, it’s so easy for a young lawyer to make a misstep that might cost them their future at the firm. It just makes sense to pair younger lawyers with more seasoned ones who can watch over them, shorten the learning curve and speak up for them within . . . [more]

Posted in: Practice of Law

The Intersection of Ethics and Well-Being


The ABA House of Delegates adopted Resolution 105 at the 2018 ABA Midyear Meeting. The resolution supports the goal of reducing mental health and substance use disorders and improving the well-being of lawyers, judges and law students. It urges stakeholders within the legal profession to consider the recommendations set out in The Path to Lawyer Well-Being: Practical Recommendations for Positive Change. The pursuit of lawyer wellness has spread rapidly through law firms, bar associations, state bars and state supreme courts.

The National Task Force on Lawyer Well-Being, assembled in August 2016 to “create a movement toward . . . [more]

Posted in: Legal Ethics, Legal Technology, Practice of Law

A Proposal to Replace Ontario’s Evidence Act With an Evidence Code

In September, 2019, I responded to the Law Commission of Ontario’s request for law reform project suggestions, with the following Evidence Code proposal. It contains reasons why you should send your written support to the LCO. The LCO will respond to such submissions early in 2020. Every Canadian common law jurisdiction’s Evidence Act should now be replaced with a true Evidence Code.

The work to replace Ontario’s Evidence Act with a true Evidence Code is much more than half completed, because in December, 1975, the Law Reform Commission of Canada (the LRCC)[1] published its Report on Evidence; . . . [more]

Posted in: Practice of Law