The Association for Chinese Canadian Lawyers in Ontario (ACCLO) hosted a CLE session on September 17, 2011, on "Tips and Tricks from the Trade," featuring Sean Zhang of Blakes, Jeffrey Lem of Davies, Roslyn Tsao of Epstein Cole LLP, and Madam Justice W. Low of the Ontario Superior Court of Justice.

Notes from the sessions follow.

IP Tips and Tricks

Zhang started out by defining IP law as an intangible personal property often associated with intellectual activity or creation. IP rights are often enforced in courts and vary between jurisdictions. Registration and application terms vary and are often for a limited term.

There are several different types of IP used to protect distinct aspects of products and processes, and can include trade-marks, copyright, patent, industrial design, and trade secrets.

A trade-mark can be a word, slogan, symbol, shape of goods or packaging, colours, or sounds, which are used to distinguish wares and/or services from those of others. Common law rights to trade-mark are acquired through use, which is usually required to obtain registration. An application is required for registration but confers enhanced rights, and can be renewed for successive terms of 15 years.

Copyright is a bundle of rights granted to protect the form of expression, not the idea. The author usually owns the copyright unless it was created during the course of employment, or they assigned the rights in writing. Moral rights to the integrity of the work belong to the author, but may be waived, not assigned. No registration is required for copyright, but the term ends 50 years after the author's death.

Patents are rights granted by the state to exclude others from making, using, or selling the "claimed invention." If there is any public disclosure it could destroy the claim to novelty. Some jurisdictions provide a one-year grace period from public disclosure. A patent term starts from granting and ends 20 years from filing, and an application is required before granting which correctly and fully describes the invention. Patents are commonly granted for methods or processes, machines and devices, manufactured articles, and chemical compounds compositions of matter.

A trade secret describes types of confidential information which confers a competitive advantage in business or trade. The Federal Court of Canada ruled in Société Gamma Inc. v. Canada [Secretary of State], (1994), 79 F.T.R. 42, at pg 45 (F.C.T.D.) that a “trade secret” must be something “that is guarded very closely and is of such peculiar value to the owner of the trade secret that harm to him would be presumed by its mere disclosure.”

Industrial design protects the look, not the function, and required registration for protection. Some level of originality is required, and the term ends 10 years from the date of registration. Protected industrial designs may include shape, configuration, pattern, ornamentation, or a combination of these, and some level of originality is required.

When advising on a business deal, consider any agreement to ownership of IP or IP rights. A non-disclosure agreement (NDA) may protect the novelty of a possible invention or originality of design. Consider any disclosure to an industry partner or customer that could trigger the 12-month grace period for patents or industrial design.

When advising on employment issues document the ownership of IP rights and confidentiality provisions. Record the obligation of the employee or contractor to disclose or transfer IP rights to the employer, and their obligation to assist the employer in obtaining registration or granting of IP rights.

IP deadlines are very rigid and often have disastrous consequences if they're missed, including a total loss of rights (deemed abandonment) with no remedy, the valuation of which could be substantial (as with the Nortel patents recently). Prosecution deadlines of IP applications vary with different types and the applications.

Real Estate Tips and Tricks

Why does real estate matter? It's one of the major reasons for malpractice claims, with over 50% of small-firm claims are related to real estate. Lem represents the prosecution side of LawPRO claims, and has seen plenty of disasters. Although 85% of these claims result in a pay-out, this does not necessarily mean that malpractice was not present, simply that proof of causation was absent for ab out half of them.

The primary tip in this area is to document everything in the retainer, outlining the scope of the retainer and the responsibilities that the lawyer is taking on. If the court is allowed to determine the retainer it will invariably be broader than intended. Putting all of this in writing helps avoid ambiguities and prevents clients from retroactively blaming the lawyer for not examining aspects of a real estate transaction.

Clients do not normally perceive this as being a negative thing because it provides realistic expectations and alerts them to areas that may need further attention. Some lawyers go beyond this and state the costs associated with expanding the retainer, allowing clients to choose to take on additional costs with a broader project.

Documentation isn't always enough though, especially when clients don't speak English fluently. Lem feels that practicing real estate in any language other than English is a risky proposition. Instead, he suggests lawyers send a letter in their first language outlining basic facts, and explaining that all future correspondences and documents will be in English, stating that it is their responsibility to obtain a translator if needed.

Another practical tip useful in this area is to use a calculator with a print-out. Not only does it help lawyers review figures that were calculated to come up with an amount, but it provides documentation of the calculation used for the records.

Family Law Tips and Tricks

Most people in law school state that the last thing they would want to do is family law due to the exposure to conflict and emotional tensions. Tsao highlighted a few family law issues that could arise for lawyers practicing in other areas.

Tsao warned of keeping a mind out for domestic abuse, but also various forms of financial abuse. These situations can often result in one partner being less forthcoming about information. Although most violence is typically male, it can also be a female abuser.

Checking the status of the children is also very important. If issues arise down the road, it's important to note that inquiries about their health, status in school, and general well-being was made.

The financial situation of the couple should be established, including any joint accounts and joint lines of credit. In many matrimonial disputes one partner removes all funds from a joint account without notification or consent of the other partner. Purchases on credit cards in both names will still be the responsibility of both partners. Money can be nasty, and a particular source of contention between partners.

Gauging the general tone of the divorce is important because it will signal whether it is amicable and whether action needs to be taken in an immediate fashion.

Before moving out of the house, the implications for custody of children should be considered. Courts like to maintain the status quo. Both partners have right of possession of the matrimonial home, whether they are on the title or not. But a different living arrangement may be necessary if the context is particularly acrimonious, especially if one partner is threatening to call the police to remove the other partner.

Tips from the Bench

Without integrity, a lawyer will not have self-respect or the respect of their peers. Without competence you will have no clients. And without courtesy you will have no friends.

Lawyers today often enter the practice without the benefit of a structured bar admissions course, or the mentoring that used to occur during articles and the early years of practice. Justice Low indicated that one of the hardest parts of practice is managing client expectations.

Some lawyers are good rainmakers. Others are great at research and writing. Some have no difficulty getting on their feet for a motion, or have a great rapport with juries. However, very few lawyers have the luxury of doing only a few tasks that they are good at and they like, requiring lawyers to play all of the instruments in the band.

One thing every lawyer should do is help manage client expectations. Managing client expectations on the front-end helps pay dividends throughout a case. A litigation plan should include expected results, including adverse outcomes. Many litigators commence with their case with little idea of where they want to go. Planning can optimize your likelihood of getting paid, and paid on time.

There are matters that the lawyer should be clearly in control of, and not the client, such as procedures, legal arguments, and litigation strategies. Relinquishing control of those matters undermines the skill that a lawyer has. Far too often counsel are not familiar enough with the facts or the law. Building a case is like building a house. You need a foundation, and plans. Research should be done at the beginning and not the end.

Providing arguments in the form of a factum, whether it's required or not, does both you and your client a service. Not only does it help organize your arguments, if the judge reserves judgments they will have the materials on hand for review.

This weekend I stopped by the Vegetarian Food Festival in Toronto to try out some new food products. The last thing I expected to see was a lawyer group. But there, prominently situated between food sample tables and advocacy groups was the Lawyers for Animal Welfare  booth.

University of Toronto law student Camille Labchuk and lawyer Nick Wright were staffing the booth, making members of the public aware of the group and a number of law-related animal welfare issues. I learned that Lawyers for Animal Welfare (LAW) is a registered charity dedicated to advancing public knowledge of animal practices and preventing the abuse and killing of animals through enforcement of existing laws.

Notably, the group is presenting the program The Emerging Field of Animal Law on October 3rd through Ontario Bar Association's professional development program. This program is available in person and via webcast. From the program description:

Join us for an opportunity to network and learn from a panel of lawyers and students working in the field of animal law at this inaugural Ontario Bar Association event. The field of animal law is growing rapidly in Canada. Animal law has been established and practiced in the United States for decades, and the past few years have been marked by a growing awareness of animal legal issues in Canada. Most Canadian law schools now offer courses in animal law, animal law practitioners have emerged and an increasing number of law students are entering the field. These developments have prompted many to draw comparisons between the present state of animal law, and the state of environmental law 25 years ago. For some lawyers, practicing animal law simply means working with clients who have legal issues relating to animals. Others are drawn to the field by a commitment to protecting animals – beings with few legal protections unable to help themselves. Drawing on a growing body of Canadian case law and legislation relating to animal issues, particularly in Ontario, lawyers practicing animal law are at the forefront of an exciting new field of law. This session will be relevant to various types of civil litigation practice as well as criminal prosecutions.

Program Chair: 
Nicholas dePencier Wright, LLB, MBA, Campaigner, Humane Society International/Canada and
Executive Director, Lawyers for Animal Welfare (LAW)

Speakers:
Peter Sankoff, JD, LLM, Associate Professor, University of Western Ontario, Faculty of Law
Evelyne Kostanska, JD, President, Lawyers for Animal Welfare (LAW) and Fellow, PETA Foundation
Camille Labchuk, President, Student Animal Legal Defense Fund, University of Toronto Chapter and Campaign Manager, Lawyers for Animal Welfare (LAW)

For more information about the group see their website: http://www.lawyersforanimalwelfare.com/ and find out about upcoming meetings from their Meetup.com page http://www.meetup.com/lawmeetup/. You can also sign up for their mailing list: http://www.lawyersforanimalwelfare.com/subscribe/.

I just received this information from the CALL webinar committee, and thought the SLAW community would be interested. I work with Rick – he has incredible knowledge of legislation and a wicked sense of humour. Caroline is not unknown to the CALL community – she has spoken at annual conferences before, and has always impressed me with her skill as a speaker and her encyclopedic knowledge.

This is a session not to be missed!

Thursday September 15, 2011
1:00 p.m. to 2:30 p.m. EDT 

Join two legislation experts in the first of a series of webinars that will share tips and tricks about legislation across the nation!

The first half hour of this webinar will focus on Federal legislation. Learn about the traps and pitfalls of online legal research in the federal context and become familiar with what is and is not available electronically. Expect to discover at least one thing you did not already know about federal bills, parliamentary documents, statutes, regulations or coming into force provisions. The second half of the webinar will focus onOntariolegislation. Listen in on 20-things that may have slipped under the radar about Ontario's statutes, regulations and the e-Laws website.

 Speakers:

 Caroline Hyslop has been working in the legal information profession for more than ten years, and is currently in the Legal and Legislative Affairs Division at the Library of Parliament. 


Twenty-four years ago Rick Sage toured the Ontario Legislative Library as part of a library school orientation. He has left the "Ledge" only once. In 2000, Rick was seconded to the Office of the Legislative Counsel where he joined the team that developed e-Laws, the government of Ontario's official website for statutes and regulations.

Register today!

Each webinar costs only $45.40 for members ($67.70 for non-members) or purchase the whole series. Recordings of each session will be available to registered participants so you can still sign up for the series even if you missed the first live session. 

For more information and to register for this webinar, please visit the Webinar Series website.

Thank you,

 The CALL Webinar Subcommittee

Liana Giovando, Connie Crosby, Meris Bray and Eve Leung

My sense is the the inaugural New Law Librarians' Institute last week in London, Ontario, sponsored by the Canadian Association of Law Libraries/L'Association canadienne des bibliothèques de droit (CALL/ACBD), was very successful.

It was a 5-day event, with sessions on substantive law led by various University of Western Ontario law professors, combined with sessions by various law librarians, including me.

Sessions included, for example, a Thursday morning session by Professor Sam Trosow on property law for law librarians (including a session on copyright law), followed by a session by UWO Law Librarian John Sadler on researching secondary legal literature. There was then a session in the afternoon on Quebec civil law followed by a computer lab session with hands on practice, with both John and librarian Elizabeth Bruton, also of UWO, leading the various hands on sessions. Others days had other substantive law sessions led by law profs, with other law librarians discussing different aspects of law librarianship.

On the Friday, I presented on the topic of Knowledge Management in the Legal Profession, espousing my views that knowledge management is fully integral to (and ideally fully integrated with) the practice of law librarianship. Aside from discussing the importance of knowledge management within the legal profession, a theme I focused on was the evolving nature of legal knowledge management by updating, in part, the 7 faces of legal knowledge management from my previous paper on that topic.

I was impressed with both the quality of students (around 20 enrollees from as far away as the Northwest Territories, Nunavut, Saskatchewan, Newfoundland and Massachusetts) who represented a wide variety of law libraries (private law firm, courthouse and academic) across a fairly wide range of experiences. Although a few of the attendees had specific experience with knowledge management, many had not, and my hope was that I was able to convince them that they all had opportunities to augment their skills by bring knowledge management principles into their daily work as law librarians.

Following my session was a wrap-up panel with John, Elizabeth, me and Gail Brown, a courthouse law librarian from the Middlesex Law Association. Our goal in part in that session was to provide attendees a sense of the working environment in all three types of law libraries. Discussion turned to the job market and advice when interviewing. I am not sure I was entirely happy with my advice, which centered around several things: show confidence, leadership, and an entrepreneurial spirit; and be prepared by anticipating what the employer is looking for – even if you are not asked to prepare a lesson plan or sample research guide, I think it shows initiative to bring examples of what you have done or what you could do for a new employer, depending on the circumstances.

I had to laugh when one of the attendees said that I appeared much less stodgy in person than I did in my SLAW posts!

Although CALL/ACBD will formally evaluate feedback from attendees and make decisions on offering the Institute based in part on those evaluations, my hope is that the program will be offered again, if not annually, at least periodically, and perhaps in rotating locations. One of the attendees, who came to the Institute from the United States, commented during the wrap up session that the Institute was one of the best courses she had attended, compared even to those that are offered in the States.

John Sadler and his team (and CALL/ACBD and its Education Committee) are to be commended for this initiative.

Nineteen people graduated today in Philadelphia at the annual conference of the Special Library Association (SLA) with a Certificate in Copyright Management (CCM). The graduates included one Canadian, some rights managers in publishing positions, and many librarians in a variety of positions from pharmaceutical and engineering companies to law firms and financial institutions and academic institutions. One thing all had in common was a desire to understand domestic and international copyright issues, Web 2.0 and other digital copyright issues, special library provisions and fair use/dealing, as well as educating others about copyright and licensing. Canadians in the program are required to take the online primer on Canadian copyright law and have the option to also enroll in the U.S. copyright law primer.

The program includes 6 online courses beginning with an intro to copyright management and concludes with 2 in-person courses. In the next offering of the CCM program, a new online course will be added on the author/owner's perspective on copyright. The participants in the CCM program gain much more than knowledge about various practical aspects of copyright and licensing; they learn to manage fair use/dealing; find practical strategies and tools to say "yes" when asked by colleagues to use copyright-protected content; gain confidence in applying their knowledge; and join an excellent network of like-minded people. 2011 marks the 4th year of the Certificate program. The 2011-2012 Schedule for the CCM will be available in July.

The number of Canadian law firms delivering CPD courses expanded today with the launch of Gowlings U.

Full disclosure that Gowlings is a client of ours at Stem, but the general trend of law firms teaching their expertise to other lawyers, corporate counsel, notaries and other professionals seems worth noting. That a number of these courses also comply with law society requirements for CPD credit is also significant.

It's a role that I've long thought that law firms could fill. Especially when firms are widely recognized to have strength in certain practice areas, or regional knowledge that other firms might not. One can imagine sessions from Gowlings, for example, that leverage their presence in Moscow or London UK.

Other Canadian firms that I know of jumping into this space include Blakes Business Class Seminars and UniversiTorys. If you know of others, please chime in within the comments.

This will certainly be an interesting area to watch going forward.

A good part of Slaw is playing hookey today, visiting the ABA TECHSHOW at the Chicago Hilton. It's the 25th Anniversary show, so we are having fun looking forward and back – and seeing how far we've come since the days of DOS and 20 MB hard drives.

Last night, we were entertained by an IgniteLaw session in which twelve speakers gave provocative and creative talks about legal technology and the future of law practice.

As much as the topics selected, the format was interesting. Based on the Tokyo based PechaKucha project – which looks like it might have been inspired by TedTalks – this gave speakers 20 slides, with 18 seconds per slide. 20 lean slides, often just a picture.

Some speakers struggled to keep up – others were inspired to focus and deliver memorable presentations.

Given the bad PowerPoint which plagues most lawyer presentations, this is a format that's worth looking at.

Last night's videos haven't yet been posted. But here is Marc Lauritsen from last year.

And for those near Toronto, Global PechaKucha Day is happening on Saturday April 16th. The Toronto group will join PechaKucha chapters from around the globe in bringing the creative and design communities together to raise funds for disaster relief. It's at the Design Exchange at Bay Street and Wellington Streets,

I attended a Women's Law Association of Ontario dinner recently where Chief Justice Winkler provided the following tips on how to succeed in law:

1. Law is a helping profession. Help others without looking for anything in return.

2. People want to help you. Graciously give them the opportunity do so.

3. Respect your elders. Respect those younger than you. Respect those the same age. Respect those in lesser positions than yours. Respect others.

4. Be loyal. Loyalty begets loyalty.

5. Do not exaggerate. Don't mislead the court. Don't take advantage of anyone.

6. Get a mentor or several mentors.Don't try to go it alone. Mentoring is a two way street. Mentors in turnbenefit from mentees. You are never too old or too senior to have a mentor.

7. Be a mentor to others.

8. Always go to events early! Be the first one there.

9. Join a legal organization of your choice and get involved in it. Speak at events whenever asked.

10. If you have no work, go to your office.

11. Take guidance from your grandmother, granddaughter and your mother. If you can't figure out whatto do and you can't reach one of these people, do what you think is the rightthing to do. If something doesn't feel right, don't do it

12. Get a dog.

Several of these could probably use some explanation, so I'll elaborate on a few.

The reason you should go to an event early is that everyone who arrives after you will then have the opportunity to meet you. By going early you also have the chance to meet event organizers and VIP guests who will often be there on time.

When you're out of work, going to your office can be a good way to get work. You can be there when the phone rings and leads to unexpected opportunities, or find work from colleagues and friends at or near your workplace.

You don't just have to get a dog. You could buy a lot of interesting books, or amass a large collection of music CDs. Clients like people who are interesting, and not just for their legal knowledge. Be more than just a lawyer and have something outside of practice too.

Future Women's Law Association of Ontario events include:

You're a Lawyer – Now What?
5th Annual Alternative Careers for Women in Law Program
May 4, 2011
LSUC Lamont Centre
130 Queen St. W, Toronto
5:30-8:30 p.m.

10th Annual Deb Snead Memorial Golf Event
August 29, 2011
The Ladies Golf Club of Toronto
7859 Yonge Street, Thornhill

♬ My kind of town.
Chicago is my kind of town.
Chicago is my kind of razzmatazz
And it has all that jazz…♬

Lyrics and music by: Sammy Cahn and Jimmy Van Heusen, recorded by Frank Sinatra.

We are now just under a month away from the American Bar Association's TECHSHOW, to be held in Chicago, Illinois from Monday April 11 to Wednesday April 13. These three days will be packed with all sorts of legal technology, training, sessions and presentations. Techshow is really composed of three parts: (1) Over 50 educational sessions spread over 18 tracks, (2) The exhibit hall which features over 100 exhibitors and (3) the social networking component which allows you to meet with hundreds of other lawyers, law firm administrators, legal application developers, consultants and others at the conference, at social events and at the "Taste of Techshow" themed dutch-treat dinners.

Is there content that would entice a Canadian lawyer to attend? By and large law office technology and management is the same whether you are north or south of the 49th parallel. Our American cousins host an incredible conference – and at least for British Columbia lawyers, TECHSHOW counts as professional development credit. Canadians have long had a hand in Techshow – there have been at least 4 Canadian lawyers who have chaired ABA TECHSHOW and many many more have been speakers and Techshow planning board members. By my count, there are at least 5 Canadian speakers at the 2011 conference.

This year's conference marks the 25th Anniversary of TECHSHOW. As such there are special events planned to honour this silver jubilee! Along with cutting edge sessions (such as iPads for Lawyers), there are solid sessions such as:

The Inbox Ninjas Ride Again: Time-Saving Tools and Tips to Chop Through Your Inbox

and

Logistics of Going Paperless.

Techshow offers so much content that typically, every attendee comes away with 'information overload' and oftentimes the hardest task is prioritizing the new ideas and things that you want to try in your office to make it more efficient, effective and productive. After all, TECHSHOW has all that jazz….and my kind of razzmatazz…

I read with great interest a recent article by Chris Anderson in Wired Features how video on YouTube is having the unexpected effect of allowing people to learn–and innovate–at an accelerated rate. He gives the example of people learning from one another how to dance, developing skills previously unheard of. Take for example the Legion of Extraordinary Dancers:

According to Anderson, many of these dancers were self-taught through Internet video, bringing together tricks and moves previously unknown in dance. Part of this is accelerated learning and innovation, he says, comes from people sharing what they know, so that others who would otherwise be isolated can learn. And they are not just sharing what they know in words, but actually SHOWING what they know through video.

In the article Anderson draws the link between accelerated learning by video, and the increasing quality of TED Talks speakers. But is there a lesson here for knowledge workers and those overseeing our Knowledge Management practices?

Last year at one of our Knowledge Workers Toronto meetings, Stephanie Barnes took us through an interesting exercise called Bird Island (trade mark from Knoco Ltd.). In it, groups work in isolation to do their best to build a structure with a specific purpose. Once they innovate as much as possible on their own, they then share their techniques with one another. The groups are then sent back to the drawing board to see if they have learned anything from one another, and the differences are surprisingly dramatic. I am being purposely vague about the exact exercise because I hope you will try it in person, and I don't want to give away the secrets and the fun!

So Bird Island is meant to show how sharing within your own organization (under the guise of Knowledge Management) is so essential. But what about the world at large? If we can do so much better within a few–or few thousand–people, are there times when going outside your organization make sense? It is not unusual for organizations to get together with other organizations (either within their own industry or with other industries) to compare notes, but usually within the same geographic vicinity. But what if the key innovation we are seeking, the answers for improvement, are somewhere on the other side of the globe, in a completely unrelated organization?

It may actually make sense to produce video–or perhaps in this case screencasting (video of the screen and voice) to show our online tools and discuss our approaches. We will help others learn to do more, and hopefully they will reciprocate, feeding back what they learn with others. I've long felt video can have fantastic affects, but crowd accelerated innovation goes even beyond what I had thought possible.

Hat tip to Ralph Mercer for sharing the link to Anderson's article.

The Canadian Association of Law Libraries/Association Canadienne de Bibliothèques de Droit has launched upon its first distance learning initiative, with two more webinars coming up shortly.

Joan Rataic-Lang will be presenting a session on November 23 which I'm sure will resonate with many of us. Her talk, Cost-Saving Measures in the Library, promises to cover not only how to select the cuts and economies, but to lead change and communicate effectively the messages to your stakeholders. For those of you who may not know Joan, she's a witty and engaging speaker, and I think you'll enjoy the session.

December 7 will bring a webinar by Jacob Glick, Google Canada's Policy Counsel. He'll be taking on the monumental topic: "The Unified Theory of Everything (in Information Policy)". I'm really excited about this presentation, and I'm sure that it will resonate with many SLAW-yers.

Registration is open now for these sessions, with more to come in the new year. Non-members are welcome to join us, and details may be had at the CALL/ACBD website.

I have a confession to make: I have never learned how to use PowerPoint. When I started giving presentations a number of years ago, I opted to buy my own MacBook and learn Keynote, Apple's answer to PowerPoint, instead. With Keynote I could save files to .ppt or .pdf versions as necessary, but the real power is seeing a presentation in Keynote itself. I find it easier to use than PowerPoint, with a nicer end result. It has served me quite well until now.

Enter Prezi. Prezi is a very different type of presentation software. To begin with, it is based "in the cloud" (on the Internet, something we have explored to some extent here on Slaw). The real difference, though, is that it is not at all linear. It is more like a mind map, allowing one to group ideas together, and explore a number of ideas springing from each idea or concept. For presentation purposes, one can either create a "path" through the content and run through it in a somewhat linear fashion, or move around and zoom in and out to jump to ideas that are not in the linear path. It is verging on 3-D presentation software. It also allows for a fair bit of creativity.

Now, this is probably not something you will use in most business presentations. But it certainly livens up a talk, and is about as far from the dull reading-bullet-points-from-the-screen as you can get. On Friday, for example, I had the privilege of speaking at COLAL, the Conference of Ontario Law Associations' Libraries, organized by LibraryCo. I decided to take a chance and try out Prezi for the first time. My very first effort is below, and I was quite pleased with the results.

To view, I suggest clicking on the bar at the bottom until you see "more" on the bottom right, click on "more" and select "full screen". Then you can either page through clicking on the forward arrow, or click on "more" again and select "autoplay" to take you through the path I took in my presentation. Unfortunately there is no sound here, so you do not get my full commentary, but you'll get the idea I'm sure. Once you have tried it, you too can move around the screen and zoom in and out to see other content I have included.

The Canadian Association of Law Libraries is hosting a webinar next week.

Wednesday September 29, 2010
Time 1:00 p.m. to 2:30 p.m. (EDT)
The Unified Theory of Everything (in Information Policy)

SPEAKER: Jacob Glick, Google's Canada Policy Counsel

Jacob Glick is part of a global policy team, working with academics, civil society, industry and government to keep the Internet awesome. He regularly writes, presents, blogs and tweets on issues related to privacy, intellectual property, telecommunication and broadcasting regulation, online advertising, and innovation policy. Jacob studied Political Science and Law at the University of Toronto. Prior to joining Google he was General Counsel and Director of Policy Development at the Canadian Internet Registration Authority. Jacob enjoys Mel Brooks movies and biking along the Ottawa River Parkway. If he could throw, run, catch, and hit better he would have been a relief pitcher for the Blue Jays.

DESCRIPTION:
A simple insight — the policy debates in Canada over the last two years around net neutrality, Canadian content online, copyright reform, the digital TV transition, the future of local TV and anti-spam legislation are all reflections of a single technological and business transformation: the convergence of everything to the open internet. This convergence has led to unparalleled innovation, consumer choice and competition. Policy should seek to protect and promote the open internet rather than distort it to protect existing business models or technologies. Join us for a tour of “The Unified Theory of Everything (in Information Policy)” led by Jacob Glick, Google's Canada Policy Counsel.

This is one of a series of webinars that the association offers with pricing for members and non-members. The fall lineup has a lot to offer.

I am looking forward to hearing Mr. Glick. His tweets suggest he is a pretty entertaining guy.

The wonderful folks at AustLII, that powerhouse in the legal information institute movement, have just launched their International Law Library on WorldLII. From the press release [PDF]:

The International Law Library contains over 80,000 searchable documents for free access. This includes over 25,000 decisions of International Courts and Tribunals, over 30,000 treaties and international agreements (including the League of Nations and UN Treaty Series), international law journals and law reform materials. These materials cannot be jointly searched elsewhere on the Internet. AustLII’s LawCite citator tracks where international cases, treaties and law journal articles have been cited.

(A cavil: When there's a pause in the splendid development of free online legal resources, most of the LIIs should spend some time improving the design of their sites. They're simply too, too Neilsen: it's not necessary to look like 1958 in order to be taken seriously, or, more important, to be usable by everyone.)

When you've brushed up on your international law, head on over to the International Bar Association Conference that's taking place in Vancouver on October 3-8, 2010. The rainy season won't have started then, so you'll be able to enjoy some of that city's spectacular scenery. If you're interested, you can download the program in PDF.

Ontario Regulation 34/10 to the Insurance Act became effective on September 1, 2010, along with several other significant changes affecting personal injury and motor vehicle collision practice in Ontario.

The Law Society of Upper Canada and the Ontario Bar Association hosted a session to discuss these changes, The New Auto Insurance Regime – Practical Strategies for Radical Change, with John A. McLeish and Dale V. Orlando of McLeish Orlando LLP. A paper provided by Patrick Brown and Rikin Morzaria, also of McLeish Orlando LLP, outlined the changes.

Roger G. Oatley and James L. Vigmond of Oatley, Vigmond LLP provided an updated about catastrophic claims, accompanied by a paper by James L. Vigmond and Eve Rogers of Oatley, Vigmond LLP.

Both papers are loosely used to structure my notes and thoughts on the talk below.

Tort Claims

The most significant changes to tort claims was the elimination of a $15,000 deductible for Family Law Act (FLA) awards in fatal accidents. The new legislation also provides an option for purchasing an endorsement to reduce the deductible on on-pecuniary general damages from $30,000 to $20,000, and FLA deductible from $15,000 to $10,000.

Very few consumers actually purchase the optional benefit to reduce the deductible, so the impact of these changes are not expected to be significant. Brokers, however, may be exposed to greater liability if they fail to explain the implications of purchasing additional coverage.

SABS Claims

Most of the changes enacted this month deal more directly with the Statutory Accident Benefits Schedule (SABS) under O. Reg. 34/10, especially the introduction of a new category of "minor injuries" in s. 18 for which a $3,500 cap was introduced. Under s. 14, those with minor injuries are not entitled to s. 19 attendant care benefits.

The $3,500 cap may even apply to those who do not have a minor injury due to the wording of s. 18,

18. (1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline [MIG]. [emphasis added]

Minor injuries are defined under s. 3,

“minor injury” means a sprain, strain, whiplash associated disorder [WAD], contusion, abrasion, laceration or subluxation and any clinically associated sequelae;
[emphasis added]

Each of the highlighted terms above are further defined under s. 3, indicating that partial tears to tendons, ligaments, and muscles are considered minor, as are WADs without neurological symptoms, fractures or dislocations of the spine.

S. 8 of the MIG provides for 3 different stages for treatment over a 12-week period, allowing for discharge by the health care practitioner at any of the 4 week-intervals if maximal recovery is achieved. If a patient requires further treatment beyond this period, an OCF-18 must be submitted directly to the insurer. Block fees through each of these stages steadily decreases. My take is that this may result in a greater emphasis on patient education in rehabilitation, as health care practitioners will have less access to funds over the 12-week period.

Exemption from the restrictive minor injury category is available under s. 18(2),

…the $3,500 limit… does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline.
[emphasis added]

A likely point of contention between counsel will be the nature of compelling evidence for a pre-existing medical condition.

Medical rehabilitation benefits in non-catastrophic claims have also been reduced under s. 18(3)(a) from $100,000 to $50,000. Press secretary for Hon. Dwight Duncan, Andrew Chornenky, said,

It allows consumers to decide what best meets their needs and tailoring their auto insurance package to that. The $50,000 for medical and rehab is still the most generous across Canada for the non-public auto insurance provinces.

But perhaps not so generous.

Included in this amount are costs for assessments and examinations. Since assessment costs can directly reduce medical and rehabilitation costs, this may lead to potential conflicts of interest.

Brown and Morzaria note that there is no cap to the number of assessments, and an insured person may use a significant portion of the $50,000 in responding to multi-disciplinarian assessments by the insurer. This creates an uneven playing field, and as a result the insured may opt to forgo assessments and instead seek tort claims, where the assessment costs can be recouped as disbursements.

Assessment rates are capped in s. 25(5)(a) at $2,000 per examination for both parties. SABS claimants without tort claims will be severely restricted and forced to mediate and litigate SABS issues to attempt to have costs of reports included as disbursements. Defence counsel will likely have less medical examinations from SABS to rely upon in tort claims.

Where tort claims are still pending alternative arrangements for medical rehabilitation should be considered given the limited medical rehabilitation benefits available, including deferred payment agreements with service providers, alternative finance arrangements, and advance payment options. Reduced benefit amounts within SABS may allow those with a strong tort claim to argue that limited use of medical rehabilitation benefits within SABS indicates a lack of future care costs.

Although additional medical rehabilitation benefits can be purchased within SABS, the same issue raised above regarding broker liability is relevant here. Cyclists, pedestrians, and those on public transit without access to automobile insurance will not have access to these additional benefits.

In non-catastrophic cases with no additional options, housekeeping and caregiver SABS benefits will be eliminated under ss. 13 and 23, but may be claimed in tort as special damages. Catastrophic claims may still access housekeeping benefits under s.23.

Attendant care benefits without a buy-up are reduced to $36,000 under s. 19(3)(2))(ii) for the maximum two-year period specified under s. 20(2), or double up their payment for $3,000 per month over a 1-year period under s. 19(3)(1). Under s. 42(1)(b), the “Assessment of Attendant Care Needs” form must now be submitted to the insurer only by occupational therapists or registered nurses. Brown and Morzaria claim that those deemed catastrophically impaired under the 55% Whole Person Impairment (WPI) two years post-collision will be significantly impacted, and may not have the care needed for proper recovery.

Claimants for attendant care, caregiver, or housekeeping benefits all must establish that the benefit was "incurred," using a more restrictive definition in s. 3(7)(e) that will impact both catastrophic and non-catastrophic claims. An "economic loss" must be demonstrated as a result of providing care or services, discouraging family members who provide such care without direct billings. Transportation expenses and failure to enter the workforce, however, may be appropriately considered an economic loss. Where the insurer has unreasonably withheld or delayed a benefit later determined by a court or arbitrator, s. 3(8) states that the need to demonstrate an expense was "incurred" is not required.

Brown and Morzaria claim that since SABS rates for attendant care are well below market rates, an injured person will not be able to get the care they require by forcing them to obtain professional care instead of family assistance. A re-election for a caregiver can be made under s. 35 once a catastrophic determination has been made.

Catastrophic Claims

Because catastrophic claimants have the greatest need for medical and rehabilitation benefits they use them up faster than other applicants, and if the $50,000 is used before the two-year period there will not be any remaining amount for a catastrophic assessment. The $2,000 limit per examination mentioned in s. 25(5)(a) above likely applies to each examination in a multi-assessment process in determining a catastrophic injury, meaning that a catastrophic assessment could erode the $50,000 amount significantly for these claimants.

The definition of catastrophic injuries has been expanded under s. 3(2)(b) to include single limb amputees.

In defining catastrophic injuries, Vigmond and Rogers begin by pointing to Arts v. State Farm Insurance Company,

[14] The legislature’s definition of “catastrophic impairment” is intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with most health needs have access to expanded medical and rehabilitation benefits. That definition is intended to be remedial and inclusive, not restrictive…

Combining Physical and Psychological Claims

One point of contention in personal injury litigation is whether physical and psychological injuries may be combined to achieve the definition of catastrophic.

All of the definitions of catastrophic injuries under this section identify specific impairments that can result in substantial care needs, with the exception of s. 3(2)(e),

(e) subject to subsections (4), (5) and (6), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or

(f) subject to subsections (4), (5) and (6), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

[emphasis added]

Tanya Zigomanis of Zarek Taylor Grossman Hanrahan LLP states,

Arts v. State Farm Insurance Company strongly supports the controversial decision in Desbiens v. Mordini (2004) O.J. No. 4735 which determined that the Schedule requires consideration of all impairments, however caused, and that they be totalled together in arriving at whole person impairment (WPI)…

… the plain language of the Schedule which would permit combining physical and psychological impairments; the AMA Guides do not prohibit the inclusion of a psychological impairment; the purpose of the Schedule being remedial and consumer protecting to reduce the hardship of automobile accident victims; and the FSCO [Financial Services Commission of Ontario] arbitrators and adjudicators expressed approval of the Desbiens analysis in their decisions.

This decision confirms that insurers will be faced with an uphill battle if choosing not to apply percentage ratings for a person’s psycho-emotional impairments and further in deciding against the combination of percentage ratings for physical impairments to determine catastrophic impairment.

Justice Spiegelin in Desbiens held that since (what is now) s. 3(2)(e) allowed for emotional and behavioural impairments for brain injury, emotional or behavioural impairments arising from psychological impairments under (what is now) s. 3(2)(f) (the previous subsections were (f) and (g)) should also be allowed given the similarity of descriptors in AMA Guides tables in Chapter 4. He did this by treating the Guides as an integral part of the Schedule, relying on R. v. Collins,

[19] Material other than statutes may also be incorporated by reference. Examples of such material are international conventions or rules, industrial standards of construction or safety, statistical information from Statistics Canada (Calder v. Canada (M.E.I.), [1980] 1 F.C. 842 (F.C.A.) at 852), and generally accepted accounting principles recommended in the Handbook of the Canadian Institute of Chartered Accountants (Re Denison Mines Ltd. and Ontario Securities Commission, (1981), 122 D.L.R. (3d) 98 (Ont. G.D.)).

[20] When material is incorporated by reference into a statute or regulation it becomes an integral part of the incorporating instrument as if reproduced therein…

Vigmond and Rogers claim that all judicial decisions following Desbiens have consistently followed it. Justice MacKinnon in Arts also stated,

(b) The AMA Guides do not prohibit inclusion of psychological impairment.

[10] The Guides are intended to be interpreted liberally. They make it clear that physicians must use their clinical judgment to arrive at impairment “estimates”. When one considers not only pages 301-2 but rather pages 141-2 and the entirety of the AMA Guides which provide no absolute prohibition on the use of percentage ratings for psycho-emotional impairments, it is clear that those Guides recognize it may be necessary to arrive at percentage ratings in appropriate cases in order to provide physicians with informed guidance. The combined values table at pages 322-324 of the Guides specifically permits physicians to combine impairment ratings from different chapters to arrive at a compound impairment rate.

…

[12] The Guides were clearly not designed by the AMA for the purpose directed by the Ontario Legislature. They must be interpreted in a manner that is contextually consistent with the language of the SABS. The Schedule directs that a “combination of impairments” that results in a WPI of 55 percent meets the test for catastrophic impairment. The Schedule defines “impairment” to include psychological impairments. If percentage ratings can be used to categorize mental or behavioural impairments flowing from a brain injury (chapter 4 of the AMA Guides), there is no reason that they cannot also be used to categorize mental or behaviour impairments flowing from a psychological injury. To interpret the Schedule otherwise would produce an unreasonable outcome.
[emphasis added]

Vigmond and Rogers note that the issue of combining physical and psychological scores has been submitted for judicial review in the FSCO decision Augello v. Economical Mutual Insurance Company, [2009] O.F.S.C.D. No. 142.

Impairments Due to Mental and Behavioural Disorders

Aspects of functioning are also relevant for the purposes of assessing the definition of catastrophic impairments under s. 3(2)(f), and include:

1. Activities of Daily Living (ADLs)
2. Social functioning
3. Concentration
4. Adaptation

An important point in interpreting these functions is that according to the AMA Guides these are qualitative assessors, and not quantitative.

In Pastore v. Aviva Canada Inc., [2009] O.F.S.C.D. No. 24 Arbitrator Nastasi did not find a catastrophic injury due to a 55% WPI, but did find a catastrophic impairment due to a Class 4 Marked Impairment.

The insurer appealed, [2009] O.F.S.C.D. No. 163, arguing 2 errors in law over the definition:

1. physical impairments should not be combined with mental or behavioural
2. the definition required an overall marked impairment in all 4 assessment areas

Arbitrator Lawrence Blackman upheld the decision on the basis of Desbiens, H v. Lombard General Insurance Company of Canada, [2007] O.F.S.C.D. No. 193, and McMichael and Belair Insurance Company Inc., [2005] O.F.S.C.D. No. 34, stating,

24 The Guides do not state anywhere that one must look at all four spheres of functioning together. Nor, submits the Respondent, do they provide any guidance on how one should combine all four spheres to arrive at an overall rating…

But Arbitrator Blackman also rejected using the American regime for interpreting the Guidelines,

46 I am not persuaded that the Social Security Administration Guidelines that prevail in the United States, as advocated by medical witnesses, provide any interpretive assistance regarding the specific Ontario test and the legislative purpose, as set out in by Mackinnon J. in Arts v. State Farm, 91 O.R. (3d) 394, leave to appeal denied in Arts (Litigation Guardian of) v. State Farm Insurance Co., [2008] O.J. No. 5740, "that accident victims with greatest needs obtain enhanced benefits."

Glasgow Coma Scale Scores for Brain Injury

Vigmond and Rogers discussed the Glasgow Coma Scale (GCS) ratings, used in s. 3(2) to define catastrophic injury,

For the purposes of this Regulation, a catastrophic impairment caused by an accident is…

(d) …brain impairment that results in,

(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or

(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose;

Vigmond and Rogers posed three questions:

1. What happens when there are multiple GCS readings, at least one of which is nine or less, and at least one of which is above nine?
2. What happens in the presence of confounding factors such as alcohol, drugs, and/or intubation that might affect the GCS score?
3. What happens with unrecorded GCS scores?

Using multiple GCS scores was resolved in Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), where the Ontario Court of Appeal overturned the trial judge's decision that other GCS scores higher than 9 within a reasonable time did not compromise the catastrophic definition,

[27] In my view the answer to the respondents’ objection is the plain language of the legislation. Provided there is a brain impairment, all that is required is one GCS score of 9 or less within a reasonable time following the accident. It is a legal definition to be met by a claimant and not a medical test.

…

[29] In my view the trial judge fell into error in equating the statutory test to a medical one. It is not.

[30] Any notion of catastrophic injury, other than the specific meaning ascribed to that term by the legislation must be discarded when considering whether a claimant meets the statutory test. The statutory scheme creates a bright line rule which is relatively easy to apply. This enhances the ability of those looking to the definition to know what injuries will and will not be considered catastrophic. Having the same definition for both no fault and third party liability claims avoids inconsistency. The ease with which the rule can be applied adds an element of predictability which will facilitate the settlement of claims.
[emphasis added]

Confounding factors was addressed in three decisions, all of which found that the insured person sustained a catastrophic impairment despite the possible influence of confounding factors.

In Holland v. Pilot the plaintiff had been involved in substance abuse at the time of the accident. Justice Keenan invoked July v. Neal to provide a more favourable interpretation for the insured, stating that a restrictive meaning could only be used if spelled out in the statute,

[24] The definition of “catastrophic impairment” in the Statutory Accident Benefits Schedule is a creature of the legislature. This type of regulation is adopted by the legislature after extensive consultation with interested parties, including insurers. If restrictive meaning is to be assigned to the regulation it should be clearly recited in the regulation itself.
[emphasis added]

Two FSCO decisions also support this point. In Tournay v. Dominion of Canada General Insurance Company the patient had a GCS higher than 9, which dropped when she was intubated. Arbitrator Robert Kominar rejected on pp. 17-18 the notion that "there is a special "SABS interpretation" of GCS scores" that would use a medical definition of applying GCS,

…the Schedule does not speak anywhere of exceptions to the validity of GCS tests administered by a qualified person on an intubated patient.

Kominar also discussed the text used in the Schedule to define catastrophic injuries,

Dr. Jennett and Dr. Teasdale, do not anywhere in The Management of Head Injuries, refer to [defence witness'] preferred method of recording the GCS score for intubated patients. The GCS score is the standard numerical score out of 15 only. But, even more importantly, Jennett and Teasdale make it clear that one of the explicit purposes for developing the GCS was to prevent neurological function from being described in terms of only one domain of response. All three aspects of behavioral response were to be assessed independently. They also explicitly recognize in their original 1974 article that the three domains of responses were needed, because one type of response, for various reasons, might be untestable. Yet notwithstanding this proviso, that there may be occasions when you can't test one of the domains, they continue to describe the GCS test and its usefulness without ever suggesting that it would be "confounded" or "invalid" in some cases. Jennett and Teasdale, in The Management of Head Injuries, specifically recognize the challenges associated with conducting a GSC test on an intubated patient…

In the other FSCO case, Young v. Liberty, [2003] O.F.S.C.D. No. 157, Arbitrator Beth Allen considered the case where the injuries were directly to the face, where the majority of GCS scoring is obtained from. She refused to add the words "valid and reliable" as modifiers of the GCS score as requested by the insurer,

82 Perhaps, understandably, Liberty Mutual is attempting to address some of the inherent frailties of the GCS score through its desire to import the adjectives valid and reliable. I accept Dr. Becker's opinion that GCS scores are not intended to be used to diagnose a condition or prognosticate on an injured person's future medical status, but rather is intended as a tool of communication between medical practitioners about a person's state of consciousness after trauma. Although, as Dr. Becker stated, the use of GCS scores is an attempt to quantify levels of consciousness to improve on the previous use of descriptors, there is still a subjective element to arriving at a GCS score. Different medical practitioners may interpret the objective indicators differently. Adding to this, as both parties acknowledge, is the fact that certain factors such as the injuries themselves and certain emergency medical procedures can confound the scores. It stands to reason that the more severe a head injury, the more likely that aspects of the injury might affect the scores, and the more likely that emergency procedures would be administered that might also complicate the medical picture.

83 I find one must be able to assume the legislature was aware of these features of the GCS score when it chose it as a means to assess catastrophic brain impairment. Surely the legislature would not have intended to provide the GCS score as a measure of catastrophic impairment under circumstances where the very characteristics of this tool would rule it out as an appropriate measure. It cannot be intended by the legislature that the most seriously injured might not have the enhanced benefits available to them soon after the accident because their GCS scores were confounded by the severity of their injury. In the end, however, the GCS score is a tool medical assessors and adjudicators must work with in assessing catastrophic brain impairment.
[emphasis added]

On appeal, [2005] O.F.S.C.D. No. 76, Arbitrator D. Evans affirmed Arbitrator Allen's decision and stated,

98 I agree with the sentiments of the arbitrator and the court. It is not necessary to read the terms "valid and reliable" into the legislation. The definition is already strict. Adding in those words would raise the bar to an impossible level. The definition already requires the test to be administered by a person trained for it, so as I have already said, the assumption should be from the beginning that the score is valid. Reading in those terms would validate MDAC's approach to the question, which essentially was to ignore a score if it was affected in any way by possible confounding factors.

The final question related to GCS scores are where the health care practitioner fails to record a GCS score as in Windsor v. Motor Vehicle Accident Claims Fund, [2010] O.F.S.C.D. No. 63. Arbitrator Jeffery Roberts rejected the evidence of the paramedics that the unrecorded GCS score was 3,

24 Mr. Lowe and Mr. Moschini agree that their responsibilities at the scene of the accident were governed by Basic Life Support and Patient Care Standards, Version 1.1, dated September 1999, developed by the Ontario Ministry of Health (BLS). Section 3, Paragraph 7(i) on page 91 of the BLS, sets out the responsibility of a triage unit for a patient found with an altered level of consciousness. It states as follows:

Use the mnemonic AVPU to gauge level of consciousness – Alert, responds to Voice, responds to Pain, Unresponsive. If level of consciousness is reduced, transfer and secure the patient to a long backboard or scoop and prepare to "load and go". Ensure that the airway is patent and ventilation is adequate.

The BLS does not require the triage unit to administer a GCS test. The fact that BLS does not require Mr. Lowe and Mr. Moschini to administer a GCS test makes it less likely that they did so. That probability is heightened by their testimony that shows that they otherwise followed the BLS. The BLS requires three steps: assess the patient, secure to a backboard, ensure that the airway is patent. They testified that, after their initial assessment, they secured Mr. Windsor to a backboard and, because he had a compromised airway, they inserted a nasal airway.

Even though the AVPU provides similar information as the GCS, Arbitrator Roberts held that it was not sufficient for a catastrophic determination as it does not provide for specific information required by the statute in a GCS assessment. Without the GCS score the patient could not have experienced a catastrophic injury as defined in the Schedule.

With the Law Librarian Conversations podcast settling into its new home at CALI (the Center for Computer-Assisted Legal Instruction), the new podcast Law School Tech Talk has now been started. David Dickens, Consulting Technologist at Pepperdine Law, is the host along with co-hosts and regular contributors: Jonathan Ezor (billed as "resident law prof"), Debbie Ginsberg ("Law Librarian"), and Ben Chapman ("another veteran IT guy"). They hope to cover all angles of law school technology.

From the email I received about the show:

We hope to have live shows for you about every two weeks; they should run 30 minutes, give or take.

Topics will include news and events relating to technology in law schools, and we'll usually have one special guest each show.

Our home on the web is here, where you can find our inaugural episode with special guest Tom Boone.

Find out more about our hosts, co-hosts, and regular panelists.

You can subscribe to Tech Talk shows as a podcast on iTunes.

We're also on Twitter.

To attend the next live recording of Law School Tech Talk online, today at 2 pm ET/1 pm CT, register here. It is organized and recorded on a webinar platform.

UPDATE: I've been informed that the papers are reserved for those who attended only. Please, then, treat this simply as a list of papers that were in fact given. Presumably, a request to the author or the the CBA might result in your obtaining a copy with permission.

The CBA's 2010 Canadian Legal Conference in Niagara Program Papers are available via the conference website. Below the fold is a linked list of all the nearly 40 papers currently available (more may be added to the CBA site), arranged simply in the order in which they appear on the program. All are PDF files.

1. La famille en évolution et le droit by Suzanne Pringle
2. La contribution de l’intelligence émotionnelle à la communauté juridique by Raymond David
3. Changements climatiques et commerce international by Bernard Colas
4. The International Carbon Market: Post-2012 International Negotiations by Florence Dagicour
5. Reducing Risk Through Effective Practice Management by George Hendy, Patrick Cassidy, and David Paul
6. GLBT Families and Assisted Reproductive Technologies by Joanna Radbord
7. Trade-marks, and the Federal Court: A primer and tips for young lawyers seeking to understand trade-marks and develop a Federal Courts practice by Steven J.R. Seiferling
8. Investment Powers: A Comparison of Jurisdictions for Charitable Organizations by C. Yvonne Chenier
9. Investment Powers of Charities and Not-for-profit Organizations in Canada appendix to Chenier paper
10. Provincial Borders Are Not Imaginary Lines: Operating Inter-Provincially in Canada by Adam Aptowitzer
11. A Comparison of Corporate Jurisdictions for Charitable Organizations by Karen J. Cooper and Jane Burke-Robertson
12. The Canada Not-For-Profit Corporations Act - A New Corporate Framework for Federal Not-For-Profits by Melanie A. McDonald
13. Technology in Litigation: Friend or Foe by Simon V. Potter
14. Late-in-Life Marriages: Love, Heartbreak, and Family Law Matters by Karon C. Bales
15. Family Law and the Blended Family: An Introduction to the Basic Law by John-Paul Boyd
16. The Women’s Court of Canada: Reflections on a Radical Experiment by Denise G. Réaume
17. Rewriting Equality: The Pedagogical Use of Women’s Court of Canada Judgments by Denise G. Réaume
18. The Women’s Court of Canada: A Valuable Resource for Legal Practice by Sarah J. Lugtig
19. Developing an Appealing Personality by Eugene Meehan
    • SELECTED BIBLIOGRAPHY
    • PRECEDENT (RESPONDENT): IMPORTANCE OF TABLE OF CONTENTS
    • First draft
    • Middle draft
    • Final as-filed draft
    • PRECEDENT (APPLICANT): EXAMPLE OF GOOD STORYTELLING, PARALLELISM & HIGH SENSE OF ORGANIZATION
    • First draft
    • Final as-filed draft
    • PRECEDENT (APPLICANT): CURRENT EXAMPLE UNDER NEW S.C.C. RULES, AND GOOD EXAMPLE OF USING SIMPLE TABLE/CHART INCORPORATED INTO TEXT
    • First Draft Response
    • Final as-filed Response
    • Application to be responded to
    • As-filed response
    • PRECEDENT: PULL-OUT TAB – VERY BASIC
    • PRECEDENT: PUT-OUT TAB – MAP
    • Words
    • Visual
20. Far-flung Families: Family Law Across Borders by John-Paul Boyd
21. Power of Attorney Jurisdictional Issues by Margaret E. Rintoul
22. The ‘Predatory Marriage’, its Consequences, and Costs in Capacity Proceedings by Kimberly Ann Whaley and Amy Cull
23. Les fondements historiques et constitutionnels de la dualité linguistique dans l’Ouest canadien : La Reine c. Gilles Caron by G. Rupert Baudais
24. Canada’s Native Languages: The Right of First Nations to Educate Their Children in Their Own Languages by David G. Leitch
25. Les droits linguistiques des peuples autochtones du Canada by Serge Rousselle
26. New Solution to Old Problems by Pascale Daigneault
27. Les téléphones intelligents – La façon efficace de demeurer branché sur la planète by Monique Veillette
28. Grey Goods vs. Counterfeit Goods – What’s The Difference? by Michael D. Manson
29. Preventing Product Piracy in the United States by Mark Schonfeld
30. Cultivating Leadership I: Honing Your Leadership Skills by Karen MacKay
31. Taking The Lead: New to the Job? Engaging Your People? by Karen MacKay
32. A Collective Shrug of the Shoulders: What’s a Leader To Do About Apathy? by Karen MacKay
33. Taking The Lead: Steering Your Firm through Uncharted Waters by Karen MacKay
34. Technologies for Solo/Small Firm, Home, and Mobile Lawyers – 2010 Update by Richard G. Ferguson
35. Working Better Faster And Cheaper: 60 Tips in 90 Minutes by Daniel Edward Pinnington, Richard G. Ferguson, Donna S.M. Neff, and Julia E. Cornish
36. Top 10 things you should know when crossing the Canada/US Border by Chantal Arsenault and Aleksandar Stojicevic
37. The Impact of the HST on Real Estate Lawyers” and “TELUS’ Assyst Real Estate by Alan Silverstein

Coming up this fall are two conferences dealing with aspects of law and technology that you won't want to miss:

1. The Canadian Forum on Court Technology, hosted by the Canadian Centre for Court Technology, takes place in Ottawa on September 22 and 23, 2010. Keynote speakers include Richard Susskind (author of “The End of Lawyers”), Allan Seckel (Deputy to the Premier of British Columbia) and Justice Louise Charron (Supreme Court of Canada). Panels will cover a wide variety of topics including the use of video in the courtroom, online dispute resolution, e-discovery, and modernizing the electronic records in Canadian courts. A full program is available online.
2. IT.Can presents its 14th Annual IT Law Association Conference in Montreal on October 28 and 29, 2010. Speakers and panels will address topics such as trends in IT contracting, social media, online and mobile privacy issues, and, of course, recent developments in copyright, patents, and trade marks law. The full program [PDF] is available online. CLE credits may be obtained for Quebec and British Columbia practitioners; and certification of the program is pending in Saskatchewan and New Brunswick. Anyone wishing more information may contact Lisa Ptack.

The International Legal Technology Association has its annual conference ILTA 2010 just around the corner. This association and its conference includes some of the leading law firms in North America and looks at not only technology but also records management, information management, knowledge management, social media and related areas. This year's theme is "Strategic unity"

a concept that resonates the need for law firms and law departments to unite their technology with the practice of law. These disciplines must come together as never before in order to survive and thrive in the future. Conference sessions will be developed around this concept, offering attendees ideas and options in creating unification strategies in their own organizations.

There are lots of great looking sessions, and I noticed these Canadian speakers (did I miss anyone?)–

• Elizabeth Ellis, Torys – on the panel The Reinvention of Matter Centricity Through Autonomy
• David Hill, City of Vancouver Law Department – on the panels Freedom of Information vs Confidentiality: a Corporate Perspective and Are AFAs the New Standard?
• Kathleen Hogan, Cassels Brock & Blackwell – on three panels The Search Is Over with iManage IDOL: Frontend and Backend Perspectives, Successful Universal Search Implementations and How to Increase the Use of KM Tools
• Peter Lamb, ii3 – on the panel Taming the E-mail Filing Monster with iManage WorkSite 8.5
• Dean Leung, Davis LLP – on the panels Collaboration in the Clouds: Paradigm Shift and Working Anywhere: Tools for the Virtual Attorney
• Mara Nickerson, Osler, Hoskin & Harcourt LLP – on the panel Weaving KM into and Across Administrative Departments
• Venky Srinivisan, Stikeman Elliott LLP – on the panel Integrating SharePoint and Open Text: It’s Not Just the Technology
• Ceyda Tocsoy, Torys – on the panel Transform to Perform: Making the New Practice Management Hat Fit

"If you build it, he will come." (Field of Dreams (1998))

If you write it on Slaw, be prepared to be quoted.

I was watching Roy Halliday pitch, tonight. The game between the Philadelphia Phillies and the Cincinnati Reds was on TV. It was scoreless through almost 11 full innings. Philly scored in the bottom of the 11th to win, 1-0. The Reds pitcher – a rookie making only his 3rd start in the show - lost his perfect game in the top of the 9th. He surrendered his first and only hit. Halliday was "almost" as good. He gave up only 5, none well-hit. 

Jays fans will remember that Halliday once pitched for the Jays and lost a no-hitter and a shut-out in the top of the 9th. He still won, though. This is the second time in two weeks that I've had the pleasure of watching Halliday perform, even if it was on tv. Last Monday night, I did that while sitting in a tavern in Upper Montclair, New Jersey, drinking Sam Adams and eating good chicken wings.

The introduction has nothing to do with the title of this post, other thanto explain why I had to time to do other things than watch the game: not that it would surprise many who know me to hear that I was doing something else while watching a baseball game (other than sleeping, that is). So, having set the stage …

One of the other things I was doing was searching in Google Scholar for new, relevant, references to one of my current research interests: factual causation. Using my surname helps to limit the number of hits. One hit was, shall we say, surprising. It was a quotation, in a recently published U.S. text on legal eductation, from something I wrote on Slaw more than three years. I'd written, in a comment:

One question the writers of “legal eduction” studies might ask – perhaps they have, I’ve never bothered to look – is “what does it tell us about law as a discipline that so many people who claim they’re no good at math, sciences, philosophy, logic etc. (and whose transcripts show it), manage to get into law school and then do reasonably well”?

A recent text, Randall Kiser, Beyond Right and Wrong: The Power of Effective Decision Making for Attorneys and Clients (Springer, 2010), at 154-55, in the chapter titled "Law School Eductation?, sub-section titled "Probabilistic Decision Making and Statistical Analysis" quoted the not-so-rhetorical question as the summary for that section, introducing it this way: "The question posed by David Cheifetz, a Canadian barrister and solicitor and the author of Apportionment of Fault in Tort, remains a challenge to the law school admissions process and the legal profession: .. ". The context of Mr. Kiser's use of the quotation was established by the first sentence in the sub-section:

The casebook method introduces students to legal philosophy, opinion writing and some substantive law principles, but it neglects the methodological reasoning, probabilisitic decision making, and qualitative evaluation skills essential to accurate assessment of clients' positions and likely case outcomes.

 Mr. Kiser also wrote, quoting from (not surprisingly) a paper in the law and economics area published by the University of Chicago, written by a law professor at that school:

He [the professor] depicts law as a field functioning in the pre-science, pre-modern era: "legal practice seems at odds with scientific logic, or at least with probabilistic reasoning."

I suppose it's a good thing he didn't go on to include my use of the Quinn v. Leathem dictum about the illogic of law and my rhetorical statement-question, in the first comment in that thread, that "something which functions in a manner analogous to a western religion can’t always be logical, can it?"

Unfortunately for my book sales, Apportionment of Fault in Tort is (1) not a text likely to be purchased by many U.S. readers , (2) Mr. Kiser doesn't cite the publication details, and (3) in any event it is long out of print. On the other hand, he spelled my surname correctly.

In due course, I suppose I'll get the Kiser text from a library, or borrow it from some other source, and look through it. For now, I can find better use for the money it would cost to purchase it: $100-$140 (used to new, on Amazon and Chapters/Indigo). I suppose I could hope that somebody from Springer (the text publisher) happens to read Slaw and decides it would be worth sending me review copy. But then I'd have to read it and review it, right?

If you are attending the upcoming American Association of Law Libraries conference in Denver, you are invited to drop by the CALI booth on Sunday afternoon from 2 to 3 p.m. for a "meet and greet" session with hosts and panelists of the Law Librarian Conversations podcast. Hosts Richard Leiter, Marcia Dority Baker and Roger Skalbeck will be there along with a pack of panelists to meet you.

You are also welcome to attend the recording of the special AALL 2010 episode of LawLibCon on Tuesday, July 13th at 2 pm in the CALI booth at the conference. Richard Leiter and Roger Skalbeck will be discussing highlights from the conference and would love your input!

If you haven't listened in a while, we just recorded and posted the latest episode of LawLibCon talking about highlights of the upcoming AALL conference. Have a listen if you are attending, or hear what you will be missing if, like me, you won't be there.

This is the first week for a couple of Field Law students. At my office we request that the students start on the same day and we have a formal week long student orientation program. Our program structure hasn't changed much over the years, except that the librarian face time has doubled to a full half day.

Our students are invited to attend the Head Start program that is organized by the Edmonton Law Libraries Association so our orientation week library session is a half day refresher of our firm specific resources and writing protocols rather than a general research review.

Our orientation program topics include:

• Practice management
• Computer systems training
• Voice mail training
• Office procedures and a tour
• The Roles of support staff (assistants, paralegals, central services)
• Oath taking
• Land titles and other government registry searches
• Dictation
• Timekeeping
• Time Management and Priority Advocacy (dealing with lawyers)
• Firm publications
• Pro bono projects
• Chambers procedure
• Law Courts tour, attendace at docket, small claims, chambers
• Cold calls
• Accounting training
• First file assignment
• Review of Computer systems
• Student Duty briefing including a tour of government registry offices like Land Titles
• Library tour, research procedures, electronic research products, and effective memo writing
• Review of the week "This Hour has Five Days"

They also get fed lunch 4 of 5 days and have face time with almost all members of the firm.

I think it is a pretty good program. Do you do anything different?

I am standing at a terminal in the Alberta Law Libraries Legal Research and Training Centre in the Edmonton Courthouse, listening as 40 articling students are given a tour of the facility. They are fresh faced and eager to begin their legal career, even after sitting through lectures on legislation this morning.

The lesson from this year's Head Start program is that it is good to have a contingency plan.

The first activated contingency plan took place yesterday when we were bumped from the courtroom that we traditionally use was scooped up by the trial coordinator. Imagine, using a courtroom for a trial. The nerve!

Second contingency (could have been avoided by deciding to plug in the laptop being used for demos rather than running on a battery) was plugging in my (spare) laptop part-way through the federal legislation presentation. Awesome librarian Linda Harmatta, Edmonton Librarian for Alberta Law Libraries didn't miss a beat and carried on through the turmoil of technology change and the excellent group of students stayed engaged and positive.

Day 1 concludes with some hands on practice with legislation questions led by a group of law librarian facilitators. The buzz of communicating this valuable learning is very energizing.

Tomorrow we have a contingency plan in place for our electronic demos with screen capture backups for everything we plan to demo. Day 2 is all about secondary sources and case law so the goal is to make sure that technology does not disrupt the learning objectives.

I invite the Head Start 2010 students to comment about the program here at Slaw. I'd like to hear some buzz about whether the librarian perception on activating our contingency plans were successful.

The Law Society of Upper Canada is having a teleseminar at noon today entitled "The New Guide to File Retention and File Destruction."

I'm one of the speakers – talking about issues relating to electronic records.

One of the fundamental principles of electronic records from a records retention and destruction perspective, is that electronic records should be retained and destroyed on the same schedule as paper records.

As I was thinking about the issues, it occurred to me that if I had to hazard a guess, I suspect many law firms, and many businesses for that matter, have not come to grips with this yet. 

The reason is simple. Take the period of time a file is active, then add to that the time a closed file should be retained. (The LSUC suggests 15 years for typical files.) Then consider how long electronic records have been around in a significant quantity. We are just now coming to a time when law firms might have a significant amount of electronic records in addition to paper files. 

Certainly word processing and email have been around for more than 15 years, but in the early years the only thing that was kept was the paper. 

Personally, my viewpoint is that the electronic versions (word documents, email, images, faxes, collaboration tools, instant messaging, etc.) of documents are the real, original documents. The paper versions are just a physical manifestation of those records.

Circle September 22 and 23, 2010 on your calendar to attend the inaugural Canadian Forum on Court Technology at the Brookstreet Hotel in Ottawa.

The Forum represents a rare opportunity to explain, understand, collaborate and move forward. So often we see the application of technology solely from our own perspective – as lawyers, librarians, judges, IT specialists, etc. – without realizing that other perspectives exist within the justice community and that these perspectives must be recognized and accommodated before mutually satisfactory goals can ultimately be achieved.

The Canadian Centre for Court Technology is proud to provide the country with an event during which will be featured Keynote speakers including Richard Susskind (author of “The End of Lawyers”), Allan Seckel (Deputy to the Premier of British Columbia) and Justice Louise Charron (Supreme Court of Canada). An array of experienced panels will cover a wide variety of topics including:

• “Judging in 2020; In a courtroom or on the web?”,
• use of video-conferencing in the court setting (with live coast-to-coast demonstration),
• lessons on access to justice learned through one of Canada’s largest and most complex civil trials (Gastops v. MXI),
• E-discovery,
• performance measurements,
• the use of tech-generated court statistics,
• online dispute resolution,
• techno-stress,
• “do’s” and “don’ts” of court technology changeover,
• modernizing the electronic record in Canadian courts,
• and other timely subjects (full program).

Note that Early Bird Special ends June 4th, 2010 : Register online now!

The Canadian Centre for International Justice is hosting a conference next month focusing on international criminal law in Ottawa and Toronto, with further locations at a future date.

The website describes the program:

Over two days, participants will receive a comprehensive overview of legal processes through which individuals can be held criminally and civilly accountable in Canada and abroad for war crimes, genocide, crimes against humanity and torture. Lawyers, journalists, students, civil servants, NGO representatives and other professionals with an interest in international justice, human rights, international law, criminal law or torts are encouraged to attend.

Details below.

Ottawa, June 25 & 26
Univ. of Ottawa, Fauteux Hall, 57 Louis Pasteur St., Room 147B
Module I: Friday, June 25, 9:00 – 4:45
Module II: Saturday, June 26, 9:00 – 4:45
Co-sponsored by the University of Ottawa Human Rights Research and Education Centre

Toronto, July 9 & 10
Univ. of Toronto, Bahen Centre for Information Technology
40 St. George Street, Room B024
Module I: Friday, July 9, 9:00 – 4:45
Module II: Saturday, July 10, 9:00 – 4:45
Co-sponsored by the University of Toronto – Mississauga Women and Gender Studies Program

Module I: Introduction to International Justice Mechanisms (6 hours of course time)
1. Overview of International Criminal Law
2. The International Criminal Court
3. Criminal Liability in Canada for War Crimes, Genocide, Crimes Against Humanity and Torture
4. Civil Liability in Canada for War Crimes, Genocide, Crimes Against Humanity and Torture

Module II: Litigating Cases in Canada Involving War Crimes, Genocide and Torture (6 hours of course time)
1. Legal Issues for Criminal Cases in Canada
2. Practical Issues for Criminal Cases in Canada
3. Legal Issues for Canadian Lawyers Representing Plaintiffs in Civil Lawsuits
4. Practical Issues for Canadian Lawyers Representing Plaintiffs in Civil Lawsuits
5. Defending Persons Accused of Atrocities

I am in the process of preparing for the upcoming CBA BC Branch Women Lawyers Forum event Defining Moments – Leadership and Ethics. I am presenting on "Defining Success on Your Own Terms," which is an interesting exercise. What is success anyway? I know what success does not look like – for me, pretty much most of 2003.

When I started law school in 1997, I was spurred by an interest in public affairs and advocacy for women and children. By 2003, I found myself as an associate in the commercial real estate group of a large law firm, which was a total mismatch for my interests and skills. Through a journey of reflection, research and trial and error, I ended up starting Heritage Law in 2005. I found out I was expecting our first child shortly after opening the doors, and the firm was designed around how to effectively manage the competing demands of starting new law firm and being a new mother.

In contrast to where I was in 2003, I have been able to build a career and a firm that mirrors my skills and interests. Based on what I have learned through this journey, here are some initial thoughts on tips for “defining success on your own terms” in law:

1. Know yourself.

There are a lot of subtle and not so subtle messages in law school, in the workplace, in the media, from colleagues, friends and even family members about constitutes professional success. After awhile, it can be difficult to distinguish where ideas have come from and whether they are external or internal. There is a strong sense in the legal community that a successful legal career means certain things, whether it's a partner track position at a prestigious boutique or large law firm, being corporate counsel, a professorship or becoming a judge. Maybe one of these paths is right for you – or not. The challenge is to do your best to drown out the external noise, spend time assessing what your true skills, interests and aptitudes are and then hopefully fashion a career path doing something you're good at and like to do. Spending years practicing an area of law you dislike because that was the position open when you completed your articles is depressing to contemplate.

2. Be creative.

Similar to the comments above, a successful career does not necessarily mean a traditional path or even having the same job for more than a few years at a time. We live in a rapidly changing economic, technological and professional landscape. While the pace of change can be daunting, it is also a source of incredible opportunity. There are many different options available now and in the future if you are willing to look outside of the traditional box so to speak.

3. Seek out mentors, both informal and formal.

A recent Ontario study found that almost all women lawyers who were singled out as notably successful or rising stars in their firms identified a strong mentor who championed them to the firm and provided valuable training and client introductions. In addition to paving a pathway to success, mentors can be a valuable source of inspiration and advice. I have had a number of mentors over the years whom I didn't actually know personally, but who inspired me with their achievements and example from afar.

4. You don’t have to do it all at once.

For women lawyers, who often have young children during the early building years of a legal career, the traditional law firm "up or out" promotion system may not work out well. This inherent conflict is likely one of the biggest reasons why only approximately 16% of equity partners of large law firms are female. That said, a thirty plus year legal career can be a fluid one, with different stages and opportunities for success. Sandra Day O'Connor spent several years at home with her young children. Success doesn't mean you have to do it all at the same time.

5. Be brave! and failure is often an opportunity.

There is that old truism that nothing worth having comes easy. Take risks. Leave your comfort zone. The worst thing that will happen is that you will fail – which may be a wonderful opportunity for growth, learning and a new path forward.

Please share your own thoughts on defining success on your own terms in law.

♬ And I hear this calling
Still you don't seem so far at all …♬

Lyrics, music and recorded by All That Remains…

On Friday, May 14, 2010 (9:00 AM – 4:30 PM) the 5th Annual Solo and Small Firm Conference and Expo will be hosted by The Law Society of Upper Canada in conjunction with The Ontario Bar Association.

What makes this Solo and Small Firm Conference a bit unique and new this year (and important in a Province that is bigger than France and Spain combined) is the live webcast of the Conference:

If you are unable to join us in Toronto, watch the live webcast of this valuable conference from your home or office. You will view the opening plenary "60 Tips in 60 Minutes" and follow five key sessions "live" throughout the day including tech essentials for your office, email and time management, running a "paperless" office, an introduction to social media for lawyers and more. The remaining sessions will be recorded and available to view after the conference.

Solos and small firms (which typically are challenged to attend such a conference, particularly if they live outside the Toronto area) can benefit from this program and not leave their office.

Of course, if you attend in person you will not only see the presentations (more on this later) but you can stroll the Exhibit floor (and enter the draw for the fabulous prizes).

Donna S.M. Neff, T.E.P. of Neff Law Office Professional Corporation and fellow SLAW-er Daniel E. Pinnington of Lawyers' Professional Indemnity Company (LawPro) are the conference chairs.

This year's conference "focuses on new technology and best practices to make you more efficient and cost effective. Master new ways to communicate and use collaboration tools that will take your practice to a new level."

Sessions include:

• 60 Tips in 60 Mins! This perennial conference favourite is back with a new panel of tipsters with the latest software, hardware, gadgets, marketing ideas and more.
• Essential Solo and Small Firm Legal Technologies: Solos and small firms face unique situations as compared to larger firms. This session will run thru the technologies that every solo and small firm should have.
• Social Media 101: What is your social media strategy? Should you be on Facebook, LinkedIn and the myriad of other social networking sites? This session will explore what is out there and how to apply it in your firm for marketing, networking and informational gathering.
• A Voyage to Paperless: All Aboard! No other technology has received such interest today as the potential of the paperless office. This session will give you the tools (and the courage) to move your practice to the paperless world.

There are 16 sessions in total. The full program and conference information can be found here.

This Solo and Small Firm Conference is an annual 'must attend' conference if you are a solo or small firm lawyer in Upper Canada. Fortunately, courtesy of the webcast capability this year, it doesn't seem so far away at all…

On Friday the Early Bird Deadline to register for the Canadian Association of Law Libraries conference in Windsor was extended from March 12th to April 9th. Before April 9th, the full conference registration is $460 for members ($505 after April 9th), $520 for non-members ($555 after).

This year's conference runs May 9-12th with a pre-conference workshop on U.S. legal research and two local tours on Saturday, May 8th. This year's conference is run jointly with MichALL, the Michigan chapter of the American Association of Law Libraries.

To register online, visit the conference website: English | French

The Canadian Bar Association's National International Law Section and the National Continuing Education Committee are presenting the 2010 International Law conference on "The Future of Canada-U.S. Cross-Border Relations" on May 6-7 in Vancouver.

The conference program (available in PDF) lists the following plenary events and breakout sessions:

• Legal Lessons in Inter-Jurisdictional Relations from the 2010 Olympics Games
• Cross Border Regulation and Trade
• Labour Movement and Human Trafficking into the Pacific North West
• Corporate Complicity in International Human Rights Abuse – The Search for Effective Remedies (dinner keynote – speaker: Justice Ian Binnie)
• TILMA, AIT, NAFTA, and WTO: Integration or fragmentation of inter-jurisdictional law?
  Trade Issues: “buy American”, border congestion, and “cap & trade”
• A Practical Guide to Cross-border Mediation-Arbitration
• An American Perspective on Canadian and American Legal Cross-border Concerns and Opportunities
• Canadian and American Cross-border Concerns and Opportunities: A dialogue between the legal profession, stakeholders, and government
• Freedom of Expression during International Events
• Year in Review: New Developments in Cross-border business dispute resolution

The registration form is available online in PDF.

The Law Societies of British Columbia, New Brunswick, Prince Edward Island, Quebec, Saskatchewan and Upper Canada (a.k.a. Ontario) are offering accreditation in connection with this conference. Details are available on the CBA site.

Date: Friday, May 14, 2010
Time: 8:30 am to 1:30 pm

I am excited to be able to participate in this year’s CBA BC Branch Women Lawyers Forum Education Day event. Along with Elizabeth Watson and Stacey Handley, I will participate on a leadership panel which will be led by Marion McAdam of Fourth Wall Project Management & Consulting. Marion has worked extensively with women who are leaders already or who are aspiring to become one within their own context. In conjunction with this, she has also done a considerable amount of research on emerging and changing trends in women’s leadership.

I have been tentatively asked to speak to “defining success for yourself and making it happen.” My personal conception of what success is and my level of achievement in that regard are both rather fluid concepts, so this should be an interesting exercise.

I am particularly interested in the quotes contained in the draft discussion materials prepared by Marion McAdam, some of which I include here:

“Success has been defined by men all these years as movement high up the ladder. Women have to define success differently. It isn’t necessary to be the top person to be successful…Success is having work in your field that permits you to have a life as well. … A woman’s life is a horizontal journey rather than a vertical climb.”

“Women At Law: Lesson Learned Along the Pathways to Success” Phyllis Horn Epstein

Trying to act like men in the workplace creates a kind of dissonance. We can sense when people are not acting authentically and we don’t trust them. “Women bring a unique set of behaviours to the workplace that are needed, especially in today’s climate. Our tendencies to collaborate rather than compete, listen more than talk, and use relationships rather than muscle to influence are the very same behaviours I coach men to acquire. But it’s all about balance. Just as men can overuse their stereotypical characteristics, so can women.” (p. 62 Nice Girls Don’t Get the Corner Office)

"In order to be effective leaders, women need to be comfortable practicing law as women – in their own way. Women don’t need to practice law the same way that men do in order to be successful."

It should be an interesting discussion!

This year's Legal IT conference, Legal IT 4.0, is scheduled for April 26 and 27th. Each year the conference looks at information technology and its impact on the law. I was fortunate to attend last year's conference, and found the audience and presenters to be a stimulating mix of thought leaders and those new to many of the concepts.

The program has largely been set, and the 50-plus speaker roster is being finalized. The subject areas being covered:

Day 1:

• Cyber crime
• IT in courtrooms
• Tech Showcase – written communications
• e-Discovery
• Early adopters
• Tech Showcase – research and processing results

Day 2:

• Intellectual Property
• Tips and Tricks at the office and elsewhere
• Tech Showcase: cloud computing
• Commercial law
• In-house lawyers
• Tech Showcase: law firm management

The Plenary on Day 1 will be Countering spam by legislative means in Canada(Bill C-27) by the Honourable Yoine Goldstein Ad. E. Plenary for Day 2 is scheduled as Controversy surrounding Google Books and the Book Rights Registry by Charles S. Morgan.

Early bird registration is available until March 12th.

Changes are afoot with the Law Librarians podcast! We have moved to hosting and support by CALI (Center for Computer-Assisted Legal Instruction). We have also taken advantage of this change to rename the show Law Librarian Conversations.

More information is on the website at http://lawlibcon.classcaster.net/. This show was created and is produced by Richard Leiter, is co-hosted by Marcia Dority Baker, and given web support by Roger Skalbeck. It includes a varying group of panelists (of which I am one) and a number of special guests.

We are now recording live twice a month (the first and third Fridays of each month, at 2:00 p.m. Central time). Information on accessing each show live will be posted on the website. Live chat for audience members during the show is also available on the website. Past episodes are available from the website and from iTunes. Discussions on Twitter about the show may be tagged #lawlibcon.

Next show:

March 5, 2010, 2:00 p.m. Central

Margie Maes, Executive Director of the Legal Information Preservation Alliance (LIPA), and regular panelist on the podcast, will join us for a discussion about LIPA's involvement in many important initiatives and projects to insure the longterm access to legal materials.

Additional details and register to attend.

Facebook appears to let you list only a single website or blog on your profile page.

Of course, many people have a website and a blog, and loads of us have connections with multiple websites and/or blogs.

With this simple trick you can list multiple sites on your Facebook profile page: Simply list the URLs for multiple sites in the Website textbox and separate them with a comma. They will display properly as separate links on your Profile page. Not sure if there is an upper limit, but I currently list 5 websites and blogs on my Facebook profile.

Previously posted on LawyerSuccessTips.com

I periodically get asked what courses are available for getting up to speed on how to conduct legal research. Clare Mauro has been the instructor for the Legal Research on the Web course at the Professional Learning Centre, Faculty of Information, University of Toronto, for a number of years now. The next sign up for this popular course (with description) is as follows:

Legal Research on the Web
Mon. 1 Mar 2010 – Sat. 17 Apr 2010
7 weeks
Instructor: Clare Mauro
Fee: $435.00 Cdn
Location: online
Cert: optional
Status: open

This is an in-depth instructor-led web course focusing on legal research skills using Internet resources. Weekly classes cover a variety of law-related topics: participants are expected to read the weekly online course readings, use the web to practice the skills taught each week, participate in interactive online discussion groups with the instructor and fellow participants, and complete short written assignments based on the material covered. This course is aimed at librarians, articling students, researchers, government employees and those conducting legal research particularly within a legal environment. The course is at the introductory to intermediate level and assumes basic knowledge of using web resources.

"I am becoming addicted to the chase and can hardly wait to see what each Monday will bring. I am also amazed at how comprehensive your materials are."
"I would recommend this course to everyone. I wish there were more like it. I went to Internet sites and accessed information I never knew was available and which will be most useful in my job."

Additional courses available online soon from the PLC:

Records Management Practice
Mon. 8 Mar 2010 – Sat. 24 Apr 2010

Records Management Fundamentals
Mon. 22 Mar 2010 – Sun. 16 May 2010

Disclaimer: I'm not just a student, but I'm also an instructor at the PLC.

Richard Susskind of the Times Online has a piece this week on how the College of Law's Legal Practice Course is delivered with video, slides, and audio – which can all be paused and started at a student's leisure in their own home.

He also mentions the online initiatives at the BPP Law School and the University of Strathclyde. The latter actually has students role-playing as solicitors dealing with a real problem in a virtual law firm.

Susskind closes saying,

Sceptics protest. They say that a law lecture should be a communal event at which students are professionally socialised. It would be regrettable, of course, if law students were never to experience the thrill of assembling with peers in a fine hall and listening to an outstanding live performance. But we should not preserve the old ways in the delusion that such performances are commonplace. Unless the lecture is genuinely outstanding (a rarity, students say), the convenience and flexibility of e-learning will trump the benefits of the communal learning experience.

I've been fortunate to have some outstanding lecturers, who I would only reluctantly replace with an online video. The upside would be the ability to easily invoke an encore. But some of the best law lecturers I've seen are interactive, responding directly to visual stimuli from the audience – not just verbal questions. There is something to be said about connecting directly with academics with whom you have some affinity to.

That being said, I know several of my peers that do quite well academically and never attend a single class. They get everything they need for the exam from lecture notes, summaries and texts. For them, lectures are the reason why their law tuition fees are so needlessly high.

To meet all of these different needs, I'm pretty sure we'll eventually see some schools coming out with more emphasis on online delivery. For remote and rural communities, it might actually be a preferable strategy in looking to meet replacement lawyers in smaller towns.

I've noticed that lawyers tend to be second wave adopters of technology. Not quite on the cutting edge, but once that edge blurs into the maintstream most (young? progressive? keen? geeky?) lawyers are there. There are dozens of examples, from e-mail to social media. Lawyers, law firms and legal education are all there. But one thing I've noticed is that the massive movement to video seems to have left lawyers behind (or, more likely, lawyers have left it behind).

My eldest kids have videos on YouTube. I've picked up an HD camcorder for less than $150. The barriers to entry have been reduced to virtually nothing, but I haven't been able to find any useful, educational law-related video content online.

It is not that it cannot be done. Fellow practitioners of my non-legal obsession, photography, have jumped on the video bandwagon with both feet and are educating hobbyists in all aspects of the craft. For free and for fee. Leaders, such as Scott Kelby, have loads of quality content avilable at no charge. Check out D-Town TV for 25 quality episodes on just about every photographic topic. If you're more of a Canon person, you can get your gear and technique fix at LensFlare35. There are hours and hours of free content out there, and much of it is professionally produced. If you're willing to pay for some serious online education, Kelby Training and others will teach you all you need to know about photraphy, lighting, weddings and photoshop.

There's a reason why masses of educational video content are available online. It's a great way to learn.

Obviously photographers are a creative bunch, so it shouldn't be a surprise they are embracing technology to learn and share. But this is no longer cutting edge. Where are the CLE providers? Where is video-on-demand CLE?

(Perhaps it's there and I've just been spending too much time with my eye in the viewfinder. If so, don't hesitate to tell me in the comments.)

I’m slowly working through all my friends from outside of our community with something to contribute. On this criterion, Jason Lewis – change management consultant, facilitator and improvisational comedy artist – is a great introduction.

Jason and I both ran distance back at Queen’s, and first became close when we roomed for a summer – me teaching windsurfing and Jason doing telesales, and both of us with plenty of time for just shooting the breeze. We spent every night on “storybook porch” with friends, talking goofy stuff but also lots about the skills we both employ in our professional lives today. Since then, Jason has caused me to think hard about many aspects of my own performance, so I’m happy to introduce you to him.

Here’s our conversation, recorded just before the Christmas break and edited for readability.

Jay, maybe you could tell us a little bit about yourself. What do you do for a living?

JL. Well, I do consulting and facilitating – mostly on change management. A significant amount of this work is in the oil and gas sector, but I’ve also worked with very interesting groups all over Canada, the United States and even overseas. The other work I’m doing is facilitating using “improv” – improvisational comedy – as a tool to animate concepts around leadership and work creativity.

DM. You’ve applied improv in consulting and facilitating?

JL. Absolutely, absolutely. I actually did my Masters at Royal Roads University on learning and development, and my thesis was on using improv in the corporate environment as a team training tool. So I’ve done research on high performing teams and how to use improv to help teams develop recognized best practices.

Jason Lewis, fully present (Photo: Jenny Hamilton)

DM. Can you identify a key technique that you use?

JL. One of the big principles of improv is “yes, and.” So if I’m on stage and you’re my stage partner and you come in saying “Captain, Captain, the duck is sick,” I have to recognize that I’m the captain of something and my scene partner is very concerned about this duck. If I say to myself, “I’m not a captain and that is not a duck,” the whole scene stops. If I say “yes, and” to both – “Well Lieutenant, we better get it some antibiotics.” – then the scene can move forward and we have something we can work with together.

DM. Sounds like a different way of thinking.

JL. Yes. Most of us have experienced “yes, but” meetings. Well, you know, we are need to defend this litigation but there’s a ton of documents to produce and there’s this legal problem or that legal problem. So that really shuts the conversation down. What about, yes and this is an opportunity to get efficient at producing documents and so on.

DM. It seems like a technique to get groups thinking creatively.

JL. Absolutely, absolutely. You’ve contributed something and here is my piece. We’re going to build this little cathedral together.

DM. Any other key techniques or principles?

JL. If we can get people to do “yes, and” we’re most of the way there. But the other piece that is really important is “presence,” which involves focus and listening.

DM. Please explain.

JL. When you and I are on that stage together doing a scene about a duck, I’ve got to be really focussed on what’s going on and what you are offering to me. You know, if it seems like your character is scared, well that is something that I can use. I can amplify that fear in an interesting way for the audience.

DM. Sounds a little like you’re teaching people how to be empathetic?

JL. Yes, yes.

DM. Is there an application for litigators?

JL. One of the reasons that writers and dramatists love trials is because there is so much rich conflict. There are characters and there’s often a story about someone behaving badly right? If you’re a trial lawyer you’re not really an actor but are present in the courtroom. What sorts of really subtle techniques are you going to use in your interaction with a witness to enhance the impact of your exchange? Do you want to appear friendly or disarming or charming, etc.? Improv can help litigators be conscious of how they are present in a court room.

DM. That’s your “presence” concept. What about “yes, and”?

JL. I understand that trial lawyers want to be as prepared as possible, but things go sideways quite frequently right? The “yes, and” principle is a good one for helping litigators move forward from those points.

DM. Will it come naturally to lawyers?

JL. Well, there’s a tension. With advocacy, you have a very strong point that you want to make in a competitive environment. Yet improv comedy is all about collaboration because if you and your four colleagues are on stage in a pressure situation so if you are not collaborating or if you are trying to make yourself look better than your colleagues, then you are going to get into a bit of trouble. However, by developing skills around presence, around focus, around “yes, and,” you are certainly going become a better communicator. I think that a lot of people are very good in a couple of ways of communicating, but can be so good that they become insensitive to how they are actually presenting. Improv training can help overcome this.

DM. So where do lawyers go to find out more about improv?

JL. In the Toronto area I would go to Second City or Mad Dog Theatre. Most improv groups offer courses. In Calgary, I’m with the Kinkonauts and we’re at www.kinkonauts.com.

DM. Thanks Jay. What’s up next for you professionally?

JL. More of the same, and I’m developing a presentation skills course based on improv that I’ve already run a couple of times at the Banff Centre for Leadership. It focuses on presentation skills and being spontaneous as a presenter – so when things change, when somebody comes up with a question out of the blue, how to respond and maintain composure.

DM. Sounds read-made for lawyers.

JL. Yes, absolutely and we’d love to work with a group of lawyers. The beauty of working with lawyers is that they’re already advanced communicators, so it’s really about helping develop mastery.

DM. Awesome. Thanks again!

[Warning: The following missive contains attempts at humour. Reader discretion is advised.]

In the early part of the last century, one could find judges railing about "scholastic theories" of this and that. What this and that was doesn't matter. "Scholastic" was not used as a compliment. In the mid part and last part of the century, the denigration of choice became "abstract metaphysical theories".

The SCC has now introduced a new species of metaphysics applicable to, at least, insurance policy interpretation, and eventually , we should assume, contract interpretation generally …. DRUM ROLL PLEASE:

"law office metaphysics".

 See Co‑operators Life Insurance Co. v. Gibbens, 2009 SCC 59 at para [57]: "Such law office metaphysics would make nonsense of the reasonable expectation of the parties at the time the policy was entered into."

[Correction: I've been reminded that Binnie J introduced "law office metaphysics" in Dunsmuir v. New Brunswick, 2008 SCC 9]

Justice Binnie, who delivered the reasons on behalf of a unanimous, full, court, didn't specify what part of the law office it had in mid, or whether this is a generic archetype. I mean, do we have Bay Street large law office metaphysics, and small law office metaphysics, and academic law office metaphysics, and in-house law office metaphysics, etc., or perhaps even law office water-cooler metaphysics, for those offices that still have water-coolers?

I suppose the saving grace is that Justice Binnie didn't see fit to quote from Henry The Sixth, Part 2, Act 4, scene 2, at about line 75.

Kidding aside, the case needs to be read by all in the profession whose job requires them to provide useful advice about the interpretation of contracts. It'll probably result in much usefully spilled ink – real and pixellated – academic, judicial and otherwise, and produce debates which I expect will get catalogued. There will be a discussion of the case on the University of Alberta Law Faculty blog – here – and other law related blogs.

DC

Simon Fodden recently quipped that Apple was becoming so mainstream that he might have to switch to Linux to keep his "smug sense of computer specialness." This reminded me that, a little more than a year ago, I posted a little note here indicating that I was thinking about getting a Linux netbook and an internet stick. I eventually did just that, and thought I would offer some reflections on my experience so far.

The bad news is that most people using Linux (at least those without IT support) are going to feel "special" at least some of the time, because of the extra challenges they face. If, however, you are the sort who enjoys the sense of smug self-satisfaction that comes from solving a good puzzle, Linux may be for you.

I pretty much knew what I was getting into. I knew GNU/Linux was Unix-like (though, of course, GNU's Not Unix.) I've been using Unix shell accounts for one thing or another for over 20 years. In ancient times, that's what the universities would give you for e-mail and web-sites. That ended when IT departments realized that most of the people who wanted to do e-mail and web-sites weren't going to learn how to stay out of trouble with a Unix shell account. When that day arrived here at York, I got a shell account with an off-campus service provider. I've switched providers once since then, because I wanted to play with some Java applications (Apache Tomcat and Cocoon, particularly) that let you use XSLT on a web-site. (It's not the only way to do it.) When I'm feeling brave enough, I'm going to upgrade to a VPS (Virtual Private Server) account so that I can be "root" and really get into trouble. I thought that using Linux on a netbook would help to prepare me for that, and things seem to be on track. I'm learning a lot.

If you think this resembles a continuing education project, you're exactly right. FOSS is free and open-source software, and the open-source part should probably be more important to you than the free part if you want to do Linux as an individual. I bought a Dell Mini 10v with Ubuntu pre-installed, and nothing more. I could have had Windows too for the same price, but I just didn't want to complicate my machine.

Getting a machine with Ubuntu pre-installed was just me being timid, I suppose. I figured Dell would probably play it pretty safe, and, as a Linux newbie, I wanted to see what their configuration looked like. My Dell came with version 8.04 (alias "Hardy Heron"), which is a long-term support release. I don't think it will be many more months before I decide to overwrite my machine with a version from http://www.ubuntu.com/. I will probably do it when the next long-term support release (Lucid Lynx 10.04 LTS) comes out. Dell maintains its own repositories, presumably to keep the lay-support problem manageable, and they have hobbled the part of the upgrade manager that lets you do version upgrades. Apparently, that's because of copyright issues with some proprietary drivers that they felt they needed to install. At this point, I don't know if it's possible just to undo Dell's hobbling. Assuming an overwrite would be best, I would need to find out what those proprietary drivers are, and convince myself that I don't really need them.

Dell's actually pretty close to having something that people can just use without having to learn too much. Though learning was sort of the point for me, I wouldn't actually have had to learn very much if it wasn't for wanting an internet stick. As noted below, it will be simple to use an internet stick in newer versions of Ubuntu too.

These are interesting times in the mobile broadband market. Even the courts are taking an interest: Bell Canada v. Rogers Communications Inc., 2009 CanLII 39481 (ON S.C.), Telus Communications Co. v. Rogers Communications Inc., 2009 BCSC 1610 (CanLII), and "Rogers-Bell Advertising Dispute Heading to B.C. Supreme Court" (Teleclick.ca, Dec. 9, 2009).

I chose the ZTE MF668, available from Rogers, mostly due to inertia. I already dealt with Rogers for cellphone, cable, and cable-internet, and this stick can use the new HSPA Plus 21Mbps network: Luann Lasalle, "Rogers launches faster network for mobile Internet for laptop, netbook users". (The Novatel U998, available from Bell, and the Sierra 306, available from Telus, seem comparable. I haven't seen any announcements yet on the sticks that Wind Mobile will offer in Canada.) I opted to have my new data plan expire along with my cell phone plan, because, in the long-run, tethering seems to make sense. Maybe the smartphones will get to be as fast as the sticks, or maybe I will decide the difference in speeds doesn't matter to me. One modem and one data plan should be enough.

None of Rogers, Bell or Telus claims to provide support for Linux. Support comes from the Linux community. Here, for example, is an Ubuntu page, "NetworkManager/Hardware/3G", surveying progress involving the Network Manager and 3G hardware. I'm using wvdial and GnomePPP instead for now, following the lead of GeorgeVita and shailendra in "HOW TO: Use USB modem on Ubuntu 8.04 Hardy Heron".

As often happens, something which is done to give the appearance of making things simpler actually makes them more complicated. The sticks come with some software from Option NV called "Zero-CD". (Application Number 1420681 in the CIPO Canadian Trade-marks Database.) This software mounts the stick as if it were a cd-rom from which, in Windows 2000, XP, Vista, or Mac OS X 10.4 or above, some software is automatically installed. In Ubuntu 8.04, this is just a nuisance. With the "cd-rom" mounted, lsusb showed vendor 19d2 and product 2000. Eject the "cd-rom", and the product was 0017 instead.

Ubuntu 9.10 and above include a module called usb_modeswitch which handles switching back and forth. To solve the problem in 8.04, the simpler (and more interesting) option was to use minicom to tell the stick not to pretend to be a cd-rom anymore. The way to do that was with a Hayes-style modem command, "AT+ZCDRUN=8". (The best documentation I found for this–"How to use a USB data modem without the Connection Manager"– was on the site of the Australian subsidiary of ZTE.)

The standards work that now seems to matter most in Canada appears to be happening at http://www.3gpp.org/. (The other guy is http://www.3gpp2.org/.) The former site has a specification 27.007, "AT command set for User Equipment (UE)", which suggested other ways to probe the stick. "AT+CLAC", for example, returned a list of available commands (not–arghh!–including "AT+ZCDRUN=8".) Another useful one was "AT+IPR=?", which told me that the maximum baud setting was 460800.

The next thing was to do what GeorgeVita suggested in "HOW TO: Use USB modem on Ubuntu 8.04 Hardy Heron": create a "/etc/udev/rules.d/90-zte.rules" file, and reboot. The udev command associates the zte modem with the usbserial module. All this is way beyond my depth, but interested readers can learn more in two articles in Linux Journal by Greg Kroah-Hartman, "The USB Serial Driver Layer" (Feb. 1, 2003) and "The USB Serial Driver Layer, Part II" (April 1st, 2003), as well as Daniel Drake's "Writing udev rules". For those using later versions of Ubuntu, it will be either more complicated or simpler: "usbserial.ko missing in Jaunty". It's also worth noting that the usbserial driver (or an old version of it) might not be the best match for any given modem: "Poor HSUPA Throughput with option driver".

The next step was to see if I could make an internet connection using the wvdial program. The best thing, though, was to run the wvdialconf command first. This program was smart enough to create a wvdial.conf file which only needed a little bit of additional tweaking.

Once I had a good wvdial.conf file in place, I found that gnome-ppp gave me a simple graphical interface for everyday use.

I suspect that this setup would benefit from additional tweaking. I also have to figure out what to do about version upgrades for Ubuntu, since it's clear that the community has recently made and is still making a lot of progress in improving support for various modems. At the moment, though, other things are higher on my to-do list.

I hope this provides a bit of insight into what life with Linux is like. I still have a ton to learn, but I'm finding it fascinating.

In case you overlooked it in our selected #slawca retweets from last week, the ABA Techshow 2010 schedule has been released. ABA Techshow will be taking place March 25-27, 2010 in Chicago. View the quick web version of the schedule (session titles only, speakers aren't listed here) or download the PDF schedule and registration info. Keynote is Ari Kaplan: "The New Big Bang – The Convergence of Technology and Marketing". Faculty from our Slaw community and the larger Canadian legal industry include:

• Joel Alleyne
• David Bilinsky
• Jean-François DeRico
• Peg Duncan
• Dominic Jaar
• Nils Jensen
• Steven Matthews
• Donna S.M. Neff
• Dan Pinnington
• David Whelan

Did I miss anyone? I am hopeful they will at some point be linking speaking faculty with the individual sessions. Congratulations to everyone who will be presenting!

Want to stay current on the "buzz" around Techshow? Check out the ABA Techshow Buzz page, or grab the Techshow Buzz RSS feed. I note they have used Yahoo! Pipes to monitor the web and create this feed. Or grab the feed for the Twitter discussion tagged as #techshow.

Some substantive law both because of what happened and because it may give some people cause to think about the consequences of our past action on our environment.

If the decision stands – I expect the plaintiffs will try to get leave to appeal to the Supreme Court of Canada given the amount involved: more than $1.7 million plus interest plus legal fees – it's proof that the courts aren't the answer to all problems.

I've set out all that's needed to understand what the problem was, and the end result.

Berendsen v. Ontario, 2009 ONCA 845

http://www.ontariocourts.on.ca/decisions/2009/december/2009ONCA0845.htm

[1] In the mid-1960s, the Ontario Ministry of Transportation deposited asphalt and concrete waste from a highway reconstruction project on a nearby dairy farm. It did so with the farm owner’s consent.

[2] In 1981, the respondents, Bernard and Maria Berendsen, purchased the dairy farm. Soon after their purchase, the Berendsens’ cows began to suffer serious health problems and to produce an unusually low quantity of milk. The immediate cause of these health and poor production problems was the cows’ unwillingness to drink enough water. However, the Berendsens claimed that the root cause was Ontario’s deposit of waste material on their farm. They alleged that harmful chemicals in the waste material migrated to the wells on their property, thereby contaminating the well water and making it unpalatable for the cows. Although testing showed that the chemicals in the well water did not exceed the limits under the Ontario Drinking Water Objectives for human consumption, the Berendsens maintained that the water was unfit for their cows.

[3] In 1994, nearly 30 years after the act they complain about occurred, the Berendsen family sued Ontario in negligence for depositing the waste and then failing to remove the contamination. In a lengthy judgment, after a five-week trial, Seppi J. found in favour of the Berendsens on both branches of their claim. She awarded damages of $1,732,400 plus pre-judgment interest at six per cent annually and costs of $655,000.

[4] On its appeal, Ontario accepts that it owed a duty of care to the Berendsens but submits that the trial judge erred in her finding of negligence. It puts forward two arguments in support of this submission. First, it contends that the trial judge’s finding on causation – that the waste deposit materially contributed to the unpalatability of the well water – was tainted by palpable and overriding errors and was unreasonable. Second, Ontario contends that the trial judge erred in law in finding that it breached the standard of care because there was no evidence a reasonable person in the 1960s would have foreseen the risk a deposit of waste material 60 feet away would contaminate the well water and cause harm to animals.

[5] Finally, Ontario attacks the trial judge’s finding that it had a duty in the 1980s and 1990s to eliminate the harmful effects of the buried waste material and that it breached this duty. Ontario contends that it had no statutory duty to remove the waste material or remedy the contaminated well water.

….

[85] I would allow Ontario’s appeal, set aside the judgment at trial and dismiss the action. In my view, Ontario was not negligent when it deposited waste material on the farm in the 1960s. Because the risk of harm was not then reasonably foreseeable, Ontario did not breach the standard of care.

[86] Nor did Ontario have a duty in the 1980s or 1990s to eliminate the waste material and remediate the Berendsens’ well water. No duty existed under the Ontario legislative regime protecting our environment. And Ontario was justified in not taking further action when both its investigation and the investigation conducted for the Berendsens showed that no chemicals in the Berendsens’ well water exceeded the allowable provincial drinking standards.

Lawyers will always be free to decide how they chose to practice law; the market will, however, decide who the winners and the losers are. Winning in e-discovery increasingly means adopting lean, efficient business practices. These practices include (but are not limited to) using project management and appropriate measures of quality to reduce cost and to mitigate risk.

This powerful statement is from the Sedona Conference's Commentary on Achieving Quality in the E-Discovery Process. The drafters of the Commentary argue for the application of formal project management methodologies by lawyers. This is a short endorsement of this argument, with links to other sources of authority.

Wikipedia defines project management as "the discipline of planning, organizing, and managing resources to bring about the successful completion of specific project goals and objectives." "Projects" are distinct from "processes" because they have a beginning and an end and particular goals and objectives. Project management is also a professional discipline, with concepts that enable better control over projects and that are embodied in a leading model – the Project Management Institutes' "PMBOK."

This is about all that I am qualified to tell you about project management because I am only a lawyer who carries litigation files. I do accept, however, that I owe it to myself, my firm and its clients to develop project management competencies. My own perspective may not count for much, but does highlight the true significance of the Sedona Conference position on project management; to at least some degree, the Commentary is a message from practising litigators to practising litigators about the need to bring formal project management methodologies to bear on litigation files.

There are other sources of authority for the pro-project management argument, starting with the CBA Code of Professional Conduct mandate to serve clients in an "efficient manner" through the application of "adequate knowledge of the practice and procedures by which [legal] principles can be effectively applied." And, like the Sedona Conference, Slawyers Debbie Westwood and Jordan Furlong have stressed that lawyers should develop project management skill for competitive (and not merely professional) reasons. Westwood says, "The smart litigator will get a handle on project management now; not just because the client expects it, but because the smart litigator knows this is the way to offer better value than the competition." Furlong is not as charitable: "…today, everybody project-manages: it's SOP in corporate life, and lawyers are the only ones in the business chain who seem to have missed the memo."

In making a similar point to Westwood and Furlong, I don't wish to obscure the live debate about the ideal division of project management responsibility between lead counsel, other lawyers acting on a file and litigation support professionals. The Sedona Commentary does not suggest that lead counsel should become project management leaders and, instead, says that files should benefit from a "lead e-discovery attorney in charge" who is "empowered by the client to manage the effort of counsel and service providers." Others, like e-discovery and litigation support consultant Brett Burney, say that the project management specialist role is best performed by professional project managers.

I take no position on whether lawyers or litigation support professionals are better suited to play the role of legal project management specialist. I only say that all litigators need at least basic project management acumen regardless of the staffing model which they most commonly employ. Staffing files with a project management specialist is not an option on smaller files, but project management itself is still required. On larger files, the development of litigator project management acumen is an important change management objective that will help teams of individuals function well and project management (through a project management specialist) succeed. And finally, project management supports alternative billing and the business aspects of a litigation practice.

Do you have a view on the importance of project management to a litigation practice? A view on who should contribute project management expertise to litigation files? A view on how to get litigators on board? Please comment below.

(Thanks to my colleague and trained project manager Heather Colman for directing me to some great resources on legal project management.)

As Connie pointed out this is a week for legal technology focused discussions – both Ted Tjaden and I spoke at one of the Toronto conferences this week, though attendance was light in comparison to the record crowds at the Pacific Legal Technology conference, LegalIT and the Legal Futures conference of the College of Law Practice Management.

ALM are sponsoring Virtual LegalTech, a virtual trade show covering legal technology, which will take place Thursday. It features live webcasts and seminars, virtual trade booths, online networking, chatting, blogs, and more. "It's everything you'd expect from a live conference, brought right to your computer". They're bring together speakers from North America and Australia for a session on International E-Discovery. Thursday's event is followed by sessions in March, May, September and December next year.

In addition to five interactive sessions covering technology, the virtual trade show will include a session called “Fixing the Broken Recruitment System,” about associate recruitment trends and projections. This is a live interview by Aric Press, Editor-in-Chief, The American Lawyer with Ashish Nanda, Faculty Chair, Executive Education and Research Director, Center for Law and the Professions, Harvard Law School and Lynn Mestel, President, Mestel & Company.

The CLE line-up is at least as interesting as the Toronto events:

11:00 AM Cost-Conscious Technology Adoption. CLE Eligible*
Despite a troubled economy, money must be spent on technology. Today, it is more critical than ever to ensure you are squeezing all you can out of existing technology and acquiring the new tools that will save both time and money. This session features the large, medium and small firm perspective on business driven technology adoption.

Joe Utsler Joe Utsler, Vice President of Product Strategy, IPRO Tech Rachelle Rennagel Rachelle Rennagel, Chief Knowledge Officer, Sheppard Mullin Richter and Hampton LLP Alston W. Walker Alston W. Walker, Manager, Litigation Practice Systems – Litigation Technology and Support Services, Fish & Richardson P.C.

IPRO Tech
12:00 PM The Challenge of Preserving and Collecting Evidence in a Cloud.
As more and more information is being stored on websites, the challenges of preserving and collecting evidence become more difficult. How do you search for information if it's not somewhere you can physically search? This hour long panel discussion will delve into the challenges that the "cloud" presents and offers guidance for in-house and outside counsel on preservation.

Jeff Fehrman, Vice President of Forensics and Consulting, Integreon Craig Ball, President, Craig D. Ball, P.C Tom Morrissey, Sr. Director, IT Litigation, Purdue Pharma LP (DC)

Integreon
1:00 PM Special Plenary Session

Virtual LegalTech: Thought Leader Series – Fixing the Broken Recruitment System

Each Virtual LegalTech will feature an hour long interview with one of the industry's foremost experts as conducted by an ALM editor.

Join us at our inaugural American Lawyer Thought Leader Series when Aric Press, Editor-in-Chief, The American Lawyer speaks with Ashish Nanda, Faculty Chair, Executive Education and Research Director, Center for Law and the Professions, Harvard Law School and Lynn Mestel, President, Mestel & Company and President, Hire Counsel who is sponsoring this session.

The legal profession is experiencing serious dramatic changes. The most obvious has been a season of associate layoffs, deferrals, and general hiring distress. It seems clear that the conventional associate recruitment model is broken and has been for some time. Ashish Nanda has an idea for a significant change- akin to the medical school model.

It's not just associates who are troubled. The lateral partner model is severely roiled, reflecting anxiety about the economy in general and the legal marketplace in particular. Lynn Mestel has been a maestro of laterals for decades. She will join the panel to discuss her views about the current situation. Ashish will apply his view from his studies of "hiring stars" in hiring and the legal profession.

2:00 PM International E-Discovery. CLE Eligible*
International E-Discovery is one of the greatest challenges facing the legal industry today. To a large extent, things that are law in the US are utterly ignored in the EU and UK. How then do you collect and preserve when the systems, ethics and cultures are at odds? This panel will examine the disparities and offer insight to navigate.

Michelle Mahoney, Director of Applied Legal Technology, Mallesons Stephen Jaques George Rudoy, Director of Global Practice Technology and Information Services, Shearman & Sterling, LLP Chris Dale, eDiscovery Information Project Christopher Byrne, General Counsel, Wave Software

3:00 PM IT Leadership in Turbulent Times.
With so many organizations experiencing restructuring and layoffs, it's often not easy to see the opportunities within the chaos. But IT professionals can help their organizations, their IT teams, and their own careers not just cope with tough times, but excel. Our panel will address the often-counter-intuitive ways that can help your company or law firm thrive – and at the same time, promote "green" protocols. From training, to effective travel, you'll find the advice pragmatic and encouraging, as we discuss how to better incorporate technology for increased productivity; improve client/customer relationships; and improve profits!

Monica Bay, Editor-in-Chief, Law Technology News, ALM James E. McKenna, Senior Manager of Infrastructure Operations, Morrison & Foerster LLP John G. Roman, Jr., Director, Litigation Technology Services, Nixon Peabody LLP

4:00 PM The Microsoft Boot Camp.
Only 10% of the functions of Microsoft Office Suite are ever used. The essential Microsoft Boot Camp will explore the secrets of Word, Excel, Power Point and Outlook and offer advice on using Sharepoint and using it well. Windows 7 is going live in late October and this session will delve into tricks and techniques to make it work for you.
Donna Payne, CEO, PayneGroup

Two conferences have been taking place in Toronto simultaneously this week: Law Tech Canada (Insight) and Law Firm Leadership Conference (CBA). Some impressive leaders have been speaking at both conferences. I hope some write-ups will emerge soon here on Slaw. In the meantime, those of us not in attendance can follow some of the discussion via Twitter:

Law Tech Canada #lawtech

Law Firm Leadership Conference #lflc

For folks in or around Toronto, a couple of Osgoode Hall Law School events are coming up that might be of interest.

Tomorrow, Friday, October 30, 12.30 – 2.00 p.m., Supreme Court Justice Marshall Rothstein will be speaking on intellectual property, in particular on patentable subject matter and business method patents. The talk will be in Room 102, Osgoode Hall Law School. (Anyone attending who would like to blog or live blog the talk, let me know.) RSVP to iposgoode@osgoode.yorku.ca

Friday, November 6, 10.00 a.m. – 3.00 p.m., IP Osgoode and the Institute for Feminist Legal Studies will joint host their second Women and IP Roundtable, at Gowlings Toronto office. A panel from government, practice and academia will follow a keynote by Dr Fiona Kay from Queen's Sociology Department.

One of my favourite tasks as a firm librarian is to provide training (formal) and mentoring (informal) to articling students on gathering materials to answer legal research problems. Another favourite task is identifying trends (industry trends, process trends, changes in the use of language, emerging technologies) that will affect legal practice at my firm. I have noticed some interesting crossover lately.

• The Legal Education Society of Alberta is hosting an Advanced Legal Research and Writing seminar on December 3 in Calgary and they recently offered a basic Legal Research session
• A DVD on Advanced Legal Research by Bonnie Fish is on the market
• The CBA Research Lawyers North section invited a LRW instructor to present a session about the University of Alberta 1L research class and what they teach
• The Edmonton Law Libraries Association HeadStart program was sold out this spring
• Legal research training will be at topic on the CALL 2010 conference program.

Taken separately, these items are interesting. When mashed together, and having read Simon C's post from July 2008 and Colin's post from January 2008, I see patterns emerge.

Is there a perception among partners that law firm juniors only look in electronic sources and are therefore missing vital information when performing analysis? Is the perception a truth or even a valid generalization? What does this mean for those of us who attempt to teach gathering skills?

Should we skip teaching methods for gathering from electronic sources in favour of a short lecture on reading the computer screen? Should we spend more time on identifying appropriate sources and instruction on how to apply search results to a legal research problem?

Program planning for HeadStart 2010 is underway so I hope for comments.

Weir Foulds' litigator (and my former colleague) J. Gregory Richards published a wonderfully thoughtful piece originally prepared for the Advocates' Society called "Grace Under Pressure", ZEN AND THE ART OF THE LITIGATION PRACTITIONER: Some Strategies for Dealing with the Unexpected and the Uncivil that bears reading for all litigators, and that firms should insist be read by young litigators. Greg's thirty years of experience distilled to twenty points.

It's all worth reading but I'll quote a couple of paragraphs:

3. Great Lawyers Are Good Listeners
When someone speaks, listen carefully. A good talker can sometimes be a good lawyer, but only a good listener can be a great lawyer. An inability or unwillingness to listen inevitably results, to quote the iconic words of the prison warden in Cool Hand Luke, "a failure to communicate". More conflicts – from wars between nations to squabbles between counsel – are caused by a failure to communicate than anything else. Minimize the unexpected and uncivil by following three simple steps: (1) listen, (2) think, … and only then, … (3) talk.

9. Make It Visual
We also live in the "Age of Computers and Television". Where possible, make it visual: charts, tables, graphs, chronologies, photographs, videos, 3-D models – all of the above and more – are welcome in courts. These are the tools we use to make complex things simple. Consider as well that documents (e.g., motions, written submissions, factums etc.) argue for you after you've left the courtroom and, at the same time, help build a record for appeal should this be necessary. Clear, inviting material will make others – the court and your opponents – more disposed to your position.

20. At the End of the Day, Be Brave
When all else fails, take a deep breath, and stand your ground. Be brave. You owe it to your client. Giving our all for a client – diligently, resolutely and fearlessly – is the hallmark of our profession.

For some years now I have been visiting the Information Resources and Services II class at my alma mater Grant MacEwan University. The two year diploma program in Library and Information Management (as it was called when I attended) has been delivered in Edmonton since the seventies and is a great jumping off point for careers in many types of information related organizations.

I always enjoy showing legal research methods to library students, most of whom have not been exposed to this area previously. They always 'get' that the method for gathering information to answer a legal problem follows the same consistent path. They don't mind the demonstrations of electronic research gathering sources and they understand why I say "read the screen". They ask questions, even when I forget to bring candy bribes. They applaud at the end of the class (perhaps from relief, but maybe not).

What did I share with these energetic, enthusiastic learners today? The session was all about case law. I covered starting points, how to find case law using fee and free sources, and what it means to note something up and some methods for doing that task. I have posted the slides.

Cheers GMU Library Tech class of 2010!

Some of the most interesting people I know are not lawyers!

This is the premise underlying this, my first, "get to know" post. My intent is to introduce this wonderful community of legal thinkers to wonderful thinkers with something to contribute from other communities. I'd encourage other Slaw contributors to do the same. This is valid online social networking isn't it? And is building links beyond our immediate social network not a path to greater creativity and knowledge for all?

My first subject is James Chisholm, business simulation designer and principal of ExperiencePoint. We became friends back in b-school in the early 90s, but when the rest of us went on to work in finance or package goods or to (eh hem) law school, James started a simulation-related project and then a business. James and business partner Greg Warman have since grown an organizational learning business with a world-class client base that includes the UN, NASA, GE, Nokia, and the US Military as well as top business schools like Rotman, Duke, Michigan, Cornell and HEC (Paris).

Ready to implement change at Lakeview Regional Hospital?

I'd like to introduce you to James because he's the most creative entrepreneur I know – one with the kind of business mind that any good Slawyer would appreciate. James is also an established subject matter expert in organizational change, having been drawn into mission-critical change initiatives in big business and government for years. Change management, of course, has been noted here at Slaw and elsewhere as a critical competency for law firms today.

Here's what James had to say last week about his background, organizational learning and the challenges facing law firms.

DM: So how did you guys go from business grads to simulation designers?

JC: Greg I met at business school. We both grew up as gamers in entrepreneurial families, and we both were passionate about learning and personal development. Back when we started in 1996, the idea of putting a computer game in front of a team of executives was novel, even career limiting! We grew the business one client at a time and learned a great deal about what works, and even more about what doesn't.

DM: Do organizations get it today?

JC: Oh yes. Leaders recognize that, unlike musicians and athletes, business professionals don't have the luxury of practice. Simulations enable practice for professionals. Recent books by Malcolm Gladwell [Outliers], Geoff Colvin [Talent is Overrated] and others have made years of research on performance and expertise accessible. These books all convey similar ideas. The great are made, not born, and it's only through years of dedicated, structured effort that people can reach the top in their field.

DM: So is that what "perfect practice" is about?

JC: Perfect practice is from the Vince Lombardi quote, "Practice doesn't make perfect. Only 'perfect practice' makes perfect." Providing perfect practice is our mission.

DM: Okay, so what is it about simulation that helps accomplish perfect practice?

JC: Simulations – designed well – provide a structured experience that focuses the participant on personal development. Key elements of "perfect practice" are inherent in the methodology – things like explicit goals, experimentation, and instant feedback – and can be fine-tuned to create optimal learning in a condensed timeframe. Great simulations are also replayable – participants can tackle them multiple times and achieve skills mastery rather than game mastery.

DM: Are all simulations the same? What do you do that's different?

JC: The word "simulation" means all sorts of different things to different people. At ExperiencePoint, we focus on a fairly specific niche – leadership and management development. The simulation experiences we create are also part technology and part human. Participants work in teams and the role and experience of the players around the table can greatly influence the degree and type of informal learning that occurs. We aim not only to impart best practices, we subtly prompt specific and important conversations. For the learning outcomes our clients desire, a simulation is a great mechanism for provoking conversation and sharing experiences.

DM: How key a role does technology play?

JC: Technology is alluring and sexy and the learning industry too often sells technology as a solution. For example, the concept of teaching interpersonal skills by placing a learner across the desk from a computer-based conversation partner is a terribly flawed one. These types of simulations offer up three to four pre-packaged things to say (each eliciting a pre-packaged response from the computer). We shouldn't promote these types of games as useful for anything other than imparting the very basics of interpersonal interaction. Fortunately, this isn't the final word on these type of games – the technology will improve – and perhaps someday we will see a game that recognizes and reflects human emotion. But at the end of the day, good simulations are learner-centric rather than technology-centric.

DM: Are you aware of the challenges facing law firms today?

JC: It certainly seems they're facing a critical leadership challenge. I read Mitch Kowalski's "2020 Vision" article in the Canadian Bar Association's magazine and its description of what a successful law firm might look like in 10 years. It described some big changes, but who's going to lead them and how? And frankly, from the perspective of someone who's a consumer of legal services, the message in the article was very appealing.

Chisholm

DM: Have your professional services clients faced resistance in taking billing professionals off-line for development?

JC: This is a classic challenge that I've heard in almost every type of firm we work with. Sure professionals are billing for their expertise, but that expertise still requires time to develop. Everyone can recall going to some professional development activity and taking home little more than a binder for their valuable time. The challenge is to make the the most of that time investment by creating a developmental experience that's highly relevant and immediately applicable.

DM: But how?

JC: This our industry's challenge. We've seen movement away from three to five day "Just In Case" development programs to more focused two to three day "Just In Time" programs with direct application. And formal programs aren't the only ways in which organizational learning is being delivered to professionals today. Blended [online with in-class] programs are fast becoming the norm instead of the exception. And using new approaches that incorporate social media in learning is hot. I would challenge the law firms to challenge us. These shouldn't be only your problems, they should also be ours.

DM: Nice thought James. To wrap things up, tell us about the most exciting project you're engaged in right now.

JC: We're very excited to have partnered with one of the world's leading design firms and are launching an innovation/design thinking simulation later this fall. It's a topic that is very important for knowledge-based organizations. "Design Thinker" will teach the methods and sensibilities for (a) discovering hidden opportunities for breakthrough innovation, and (b) building solutions that are desirable, technically feasible, and economically viable. Our existing portfolio of simulations is focused on helping organizations implement ideas. Design Thinker will prepare organizations to generate those ideas.

DM: Thanks James. All the best!

I hope you found this introduction relevant. You'll find the 2020 Vision article James referred to here and you can learn more about James' work at the ExperiencePoint website and his LinkedIn profile.