♫ If you want it you can get it
If you choose it don’t regret it
If you feel it make it real
It’s what you wanted don’t forget it..♫

Music and lyrics by April Start.

During the first week of November, 2010, Vancouver, British Columbia will hold the first ever conference devoted to the topic of Consumer Protection Issues and Online Dispute Resolution (“ORD”). The conference proponents include the US Government, the EU, The Czech Court of Arbitration, eBay and PayPal, and the ICANN Office of the Ombudsman.

According to Dr. Frank Fowlie, the Ombudsman for ICANN, the conference “will aim to have a fulsome discussion concerning trans-national and national consumer protection schemes, and the use of emerging technologies to act as a platform for the resolution of complaints, and fraudulent activity.”

Dr. Richard Susskind has stated that ODR is one of the top 10 ‘disruptive’ technologies facing the legal profession. As commerce moves to the Internet, comsumers and industry alike will be looking for ways to resolve disputes in a low-cost and efficient manner. These parties may not be willing to adopt a dispute resolution model that is tied to litigation that seeks to enforce the law of a particular geographic location, particularly if that law is deemed to favour one of the parties.

For example, the Abritration Center for International Disputes (ADR.EU) “helps brand and trade mark owners, domain name registrants and registration companies all over the world to resolve conflicts in a fast, efficient and cost-effective fashion.” This Center is affiliated with the Czech Court of Arbitration.

It is important for lawyers from all nations to be involved in the growth, development and application of ODR as it emerges into the complaint resolution process. Canadian lawyers in particular, as conference participants, stand to be in a key role to help shape this technology as it interacts with law and economics. After all, if you feel it, make it real…

I can’t resist my annual greeting–I hope you are having a great day and for those of you celebrating, a fun evening.

Photo: Ring of Kerry in Ireland by Connie Crosby, September 2006

The  Library Journal has issued its list of  Movers & Shakers. (ht to Stephen Abram). See the list here, and more importantly, the stories which led to the nominations.  

I like the way the list is categorized – makes navigation much easier. There are lessons to be learned from each of these people, but it is much more efficient to read up on those working in your own area of obsession/interest.

If the pre-1978 U.S. Copyright Act was still in effect, copyright-protected works from 1953 would have entered the public domain on January 1, 2010. Current U.S. law protects works for 70 years from the date of the author’s death, but prior to the 1976 Copyright Act (effective in 1978), the maximum copyright term was 56 years (an initial term of 28 years, renewable for an additional 28 years). Copyright-protected works from 1953 include Casino Royale, Marilyn Monroe’s Playboy cover, The Adventures of Augie March, the Golden Age of Science Fiction, Crick & Watson’s Nature article decoding the double helix, Disney’s Peter Pan, and The Crucible. See: www.law.duke.edu/cspd/publicdomainday/pre1976.

The leading copyright convention, the Berne Convention (www.wipo.org) requires a minimum copyright protection of life-plus-50 — the duration that currently exists in the Canadian Copyright Act.

ICANN, the international body that manages the business of approving domain names and numbers, decided about two years ago to permit generic top-level domain names (gTLD), creating an application process that is expected to get underway this year.

The camera and technology company Canon Inc. announced yesterday that it has done what it can now to apply for the gTLD “.canon”, not suprprisingly, and staked out its territory:

Following approval for the new gTLD system, which is expected to take place after the latter half of 2011, Canon will make full use of the new domain name to increase the convenience and effectiveness of its online communications.

Slaw would, of course, apply for its own gTLD were it not for the small matter of the application fee, which is estimated to be US$185,000.

The quality of Canadian internet access continues to decline in comparison to that of other countries.  See, for example, previous Slaw posts here and here.   This while high speed access is more increasingly considered crucial for the economy,  competitiveness and innovation – even to the extent that many feel that the internet is a fundamental human right.  

The Canadian government talked about a digital strategy in its recent throne speech, but so far we don’t know what that translates to.

Contrast that with what is happening in the US.   The US FCC just announced an aggressive plan to upgrade internet access and speed.  The FCC says “Like electricity a century ago, broadband is a foundation for economic growth, job creation, global competitiveness and a better way of life.”

And Google plans to build trial locations to bring fiber to the home in at least 1 US city with speeds of 1 gigabit per second.  (That’s over 200 times faster than we get at home now.)   Google draws parallels to the space race.

University of Waterloo president David Johnston is quoted in a CBC article saying:   

My wife and I did a good thing on the day of the recent Oscar telecast: we attended a 1 pm showing at our local theater of the Oscar-nominated short films and short animation films.

Although I thought the Oscar presentation was too long and not funny enough, having seen the 1 pm showing made the presentations later that night for those two categories much more interesting.

If you get the chance to see the winning short animation film it is simply brilliant. It was Logorama, a 16-minute animated film set in what is presumably Los Angeles that uses to great satirical effect (apparently) over 2,500 logos or trademarks (the Wikipedia entry here provides a nice overview) (A recent Retweet by Simon Fodden makes a brief mention of the film).

The image here gives some flavour of the stunning visuals:

Produced and written by a team of French film-makers, it tells the story of two foul-mouthed police officers (in the forms of Bibendum, the Michelin man) who get a call to chase a criminal who turns out to be in the character of gun-toting and equally foul-mouthed Ronald McDonald driving a stolen courier truck and eventually taking Bob’s Big Boy as a hostage. Cleary a touch of Quentin Tarantino going on here, to good effect.

This short summary does not do justice to the movie and the wonderful satirical message on the impact of corporations and advertising.

I will be adding it to my list of law-related movies that I will shortly be re-publishing on a new website (the launch of which I will announce on SLAW).

Although I tried a few Internet searches now to get more information about the making of the animated film, my main reaction – aside from one of awe – was “How did they get away with not being sued by the various owners of the trade-marks?” I assume they did not have the consent of the trademark owners (given the way most of the logos were portrayed). I therefore assume (and hope, in a way) that they are relying on the “satire” defence.

For a good overview of this defence, I recommend the following recent article:

Aaron Jaroff, “Big Boi, Dr. Seuss, and the King: Expanding the Constitutional Protections for the Satirical Use of Famous Trademarks” (2008) 57 American University Law Review 641, available online here (40 pages, PDF).

The following online bulletin by two Latham & Watkins lawyers for the ABA IP Litigation Committee also provides a good listing of some recent trademark parody cases:

The Satire/Parody Distinction in Copyright and Trademark Law (here in PDF, 17 pages).

For those not shy of material that is not necessarily family friendly, a Google images search here on << dr seuss parody >> has some fairly funny (and tasteless) takes on the Cat and the Hat and the like.

And speaking of Bibendum (the Michelin man): This all brings back good memories of Professor Drassinower’s IP course (taken while I was doing an LL.M. a few years back at U of Toronto). One of the cases we discussed was a Canadian case involving posters and placards containing use of a caricature of Bibendum by disgruntled union members of Michelin – see: Compagnie Générale des Établissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), [1997] 2 F.C. 306. The Court described the union’s caricature of Bibendum in these terms:

The contentious portion of the leaflet depicts a broadly smiling “Bibendum”, arms crossed, with his foot raised, seemingly ready to crush underfoot an unsuspecting Michelin worker. In the same leaflet, another worker safely out of the reach of “Bibendum’s” looming foot has raised a finger of warning and informs his blithe colleague, “Bob, you better move before he squashes you!” Bob, the worker in imminent danger of “Bibendum’s” boot has apparently resisted the blandishments of the union since a caption coming from his mouth reads, “Naw, I’m going to wait and see what happens”. Below the roughly drawn figures of the workers is the following plea in bold letters, “Don’t wait until it’s too late! Because the job you save may be your own. Sign today for a better tomorrow.”

If I recall correctly (and this shows you I am too lazy to actually re-read the case I just cited to), the union was not necessarily offside on trade-mark infringement but were offside on copyright infringement (and their freedom of expression rights were held to not have justified such infringement since they could have expressed their frustration with Michelin in ways that did not infringe Michelin’s intellectual property rights).

See Logorama at your first opportunity.

On January 19th the Small Claims Court of Nova Scotia awarded $750 to an aggrieved surfer whose new surfboard was dinged by another surfer who breached the “paddle behind” rule of surfing etiquette.

The rule of surfing that the defendant was proven to violate is a pretty indisputable rule of surfing etiquette. The surfer paddling out should not interfere with the surfer riding the wave. This usually means that the surfer paddling out takes a path that leads into the breaking part of the wave, moderately discomforting but a warranted self-sacrifice to allow the rider to enjoy an uninterrupted ride.

Of course, one of the wonders of surfing is the number of variables engaged, and even experienced surfers can get caught exercising bad judgment. Ordinarily the exercise of bad judgment on the part of the paddler leads to a ruined ride and a few words. “What haole boy, you like beef?!” Yet riders can err in judgment too, which can lead to collisions.

With all the imprecision associated with a good surf session one might wonder if the voluntary assumption of risk rule (raised unsuccessfully in this case) should prevail. In more animated terms, surfing etiquette is about being conscientious, but shit does happen.

So is a damages claim for a dinged board a good outcome for surfing? Arguably no more than a damages claim for interference with a good ride. And now that I’ve applied more analysis and language to an act that is too pure in its origins to deserve this kind of deconstruction, we should all go back to the beach.

Thank you to The Surfing Handbook for the use of the image. Please check out its etiquette page as a matter of risk management before entering the water.

Boy, does time fly! Although at this time of year, that ’ s a good thing. It means that spring is nearly here, bringing with it another ABA TECHSHOW , and that it ’ s time for Law Practice ’ s annual Tech Tips issue. In this special issue, for the third year in a row, we celebrate the spirit of ABA TECHSHOW with a bounty of legal technology tips that you can put to use right away to help your days go more smoothly. Here’s a rundown of what you’ll find:

• Essential apps for your smartphone: Lawyers who are known for hunting down the best new smartphone apps tell us the ones they most love for making their day run smoothly.
• Protecting client data: 11 steps to take when using technology: In a big heads-up for lawyers, a recent opinion from a state bar rules committee addresses the concept of lawyer competence for protecting client information when using technology. Here’s a data safeguarding checklist that should help keep your client data, and your practice, safe.
• Working virtually: high productivity tips for travelling lawyers: With the toolset and how-tos given here, you’ll be able to keep your office at your fingertips anywhere there’s broadband access. (This article by fellow SLAWer Nicole Garton-Jones!)
• Working smarter with knowledge tools: Knowledge tools, including work product retrieval systems, interactive checklists and document assembly systems, help get everyday legal work done faster, cheaper and better. This excerpt from the new ABA book The Lawyer’s Guide to Working Smarter with Knowledge Tools reveals what to look for in system authoring software.

Many thanks to Jim Calloway for pulling together an excellent set of pointers from ABA TECHSHOW veterans and all his help with this issue. We hope you enjoy the magazine and will put the tips to use today! You simply can’t practice law today without technology. It is critical to providing professional and competent client service at every law firm.

Here it is, just about half way between Friday Fillips, and I’m feeling the urge to share some frivolous findings with you. I hope that those who read Slaw for our contributions to your understanding of law and practice will forgive me this mid-week miscellany, most of it blithely immaterial.

But let’s start with law, in a way. The Globe and Mail this morning reported on a British scholar’s announcement (assertion?) that the 1613 Elizabethan drama, Cardenio, is in fact (mostly) by Shakespeare, and not Fletcher (his ghost blogger?) or Theobald, the later plagiarist. In the brief excerpt cited I noticed — here comes the legal reference — the use of “reversion”:

To have enjoy’d her, I would have given – what?
All that at present I could boast my own,
And the reversion of the world to boot
Had the inheritance been mine. . . .

Nice little conundrum here, if he’s referring to a reversion upon a life estate, because, of course, it only vests in possession upon the death of the life tenant.

There are so many allusions to law in Shakespeare’s plays that some believe he must have had legal training, a hypothesis rejected by the 1943 book The Law of Property in Shakespeare and Elizabethan Drama by Paul Clarkson and Clyde Warren, which in turn has been criticized as being wrong in law: see Shakespeare’s Bad Law by Mark Alexander.

Now straight from the sublime to the ridiculous. The Wall Street Journal, for reasons best known to its editorial board, decide to publish a lengthy piece recently on a Russian scholar’s assertion (announcement?) that the United States will fall apart this year, and that the various resulting regions will be taken over by other nations. The map to the left (click to enlarge) gives you his picture. China gets the west; Mexico gets the south; Europe gets the east; and — oh, goody, we get South Dakota — Canada gets the northern midwest. Uh, and Russia gets Alaska back. Kind of puts our anxiety about Quebec separatism to shame, doesn’t it?

Now, moving somewhat away from the ridiculous, we find a novelty from Google Labs: Google Reader Play. If you read RSS feeds (and you should), you may well do it in Google’s Reader. This new turn on that app not only slides things in sideways from the right, but does it in big square blocks that favour images over text. (The speculation is that, like the Wall Street Journal and NPR, they’re preparing for the launch of the iPad.) Google Reader Play doesn’t play your subscriptions (although I gather you can make it do so); instead it treats you to a concoction of image-heavy material from feeds that its chosen in mysterious ways. Fun for a few moments.

And finally for something completely silly: the Bounty paper towel ad on YouTube, presented here because it uses our Mounties as a symbol of strength:

A Spanish judge, Raul N. García Orejudo,  has ruled that linking to copyrighted material is not illegal in SGAE (Sociedad General de Autores y Editores) vs. Jesus Guerra over the link site elrincondejesus.com.

Stan Schroeder of Mashable summarizes the proceedings:

First, he denied SGAE’s request to shut down Guerra’s site in June, saying that “P2P networks, as a mere transmission of data between Internet users, do not violate, in principle, any right protected by Intellectual Property Law.”

Now, he decided that “offering an index of links and/or linking to copyright material is not the same as distribution.” His decision was largely based on the fact that Guerra doesn’t make any direct or indirect profits off the site.

TorrentFreak translates part of the judgment (my Spanish is horrible),

“P2P networks are mere conduits for the transmission of data between Internet users, and on this basis they do not infringe rights protected by Intellectual Property laws,” he declared. Therefore, if an individual uses P2P networks like eDonkey or BitTorrent to obtain copyright material for non-profit reasons, the act is completely legal.

Interesting ruling in the backdrop of the Google exec case in Italy.

An article from yesterday’s Globe and Mail points out that the Tories are quietly cutting funding to organizations that benefit from Industry Canada’s Community Access Program (CAP). These organizations, which include hospitals, seniors groups and employment centres, use the cash from CAP to provide free Internet access to Canadians who don’t always have access to high-speed Internet or even access to computers, particularly those living in rural communities. Organizations that are located within 25 kilometres of a public library will no longer receive funding.

The ABA Techshow “tips” issue of Law Practice Magazine is live today. The Editor in Chief is Dan Pinnington, and the issue is full of practical technology tips. I am not sure that I am truly “totally mobile” as described, but I do have some tips in that regard in my article Working Virtually: High-Productivity Tips for Traveling Lawyers.

Olivier Charbonneau, doctoral candidate in law, associate librarian at Concordia University, blogger, and all-around legal information expert, has a post up on VoxPopuLII, the blog associated with Cornell’s Legal Information Institute. In “Collaboration and Open Access to Law,” Charbonneau talks about certain aspects of his research work on the way in which the public and legal documents interact with each other on the web.

In this post he gives only a few suggestions as to how we might improve this interaction and points us to his paper submitted at the Law via the Internet Conference in 2009 and to his master’s thesis for more. For instance, he suggests that it might be helpful if when users wanted to quote a patch of a judgment from a open access legal source they were offered (à la YouTube) a bit of code for embedding; this could then establish a dynamic link between the users’ web pages and the source, allowing for automatic updates or alerts on the one hand, and stats on use for the source provider on the other.

As Slaw readers may know, this sort of imaginative use of technology to improve legal documents interests me greatly. If you’re like me in this, you’ll want to have a look at Charbonneau’s work. But even if you can leave legal informatics alone, you should give this a glance, because it will give you a sense of what’s coming down the pike. Future technologies, like objects in the passenger-side mirror, are closer than they apear.

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 Uniform Law Conference has asked for model legislation to implement the UNCITRAL Convention on the use of Electronic Communications in International Contracts (the E-Communications Convention, or the ECC). In order to prepare this legislation, one needs to answer a number of policy questions — and then some drafting questions.

I have done an issues paper outlining the questions that have occurred to me. I would very much like your views on the right answers.

Here are the questions, to pique your interest:

1. Should Canada accede to the Convention?

My proposed answer is Yes. Each province and territory can make its own choice, though.

2. Application of the Convention: how is it triggered?

The law applicable to the contract is the Convention, by diverse routes. I think we should not take any exceptions to what is in the Convention.

3. Application of the Convention: what other conventions?

The Convention can apply to communications about contracts subject to any other convention to which a contracting state is a party. I think that Canada should extend it to all such conventions.

4. Application of the Convention: international and domestic contracts?

The Convention applies on its face only to international contracts, but we could amend our domestic law so the same rules apply to both levels of contract. Some other countries — notably Australia and Singapore — are likely to take this approach. Some considerations each way are set out in the paper.

5. Attach the Convention or rewrite the UECA?

The ULCC often does implementing legislation that just annexes the full text of the convention as a schedule. Which way we go for the ECC may depend on the answer to the previous question on applying the Convention’s rules to domestic law as well as to international contracts.

6. Application of the Convention: exclusions and permissions

We need to figure out what to do with our exclusions compared to those in the Convention, if we harmonize our domestic law with it. Ditto for the places where our law (the UECA, for the common law provinces) is more permissive than the Convention: do we need to restrict it? Have I got the dynamics right in this discussion?

7. Compatibility with existing Canadian law

Two studies were done for the ULCC in 2008 on compatibility of the Convention with Canadian common law and civil law. The common law study found general compatibility. The civil law study found general compatibility except on a key issue, the functional equivalent of ‘writing’, on which point the study said the Convention’s solution would not work in Quebec law. That study concluded that Quebec, and indeed Canada, should not adopt the Convention as a result. The issues paper comments briefly on the issues.

Comments on any of these issues would be welcome, in case a discussion is necessary, or to me directly. I would like to have a good idea of the optimal approach by, say, the middle of April.

Feel free to send on the questions or the link to the issues paper to anyone you think would be interested. I can make a Word version available, but did not want to impose on people’s bandwidth. (It’s only 11 pages long including a page of sources.) Is there someone who should be consulted more formally?

Thanks for your ideas and your help.

Lawyers are asking the wrong question when they wonder whether to upgrade their operating system (OS) to Microsoft Windows 7 or stay at Windows XP or Vista.  If you’re upgrading, the question should be what are ALL my options?  Now that Microsoft issues its operating system in so many versions that you need a score card to keep track of which does what – did you know that Windows 7 Starter for netbooks even locks down your wallpaper – you might as well compare them to other alternatives.  The legal technology world has changed a lot since you installed that version of Windows 98!

Choices, Choices

You might think that there aren’t viable alternatives to the Windows operating system in the law practice.  Apple Mac devotees would argue that point, although they have remained a very small segment of the legal world.  The American Bar Association Legal Technology Resource Center thinks that Mac may gain ground in 2010 buoyed by adoption of Apple’s iPhone.  The ABA’s 2009 Legal Technology Survey Report indicates 3.6% of all lawyers responding, and nearly 7% of solos, run Mac OS on their primary computer.

Linux adoption is slowly growing, probably thanks to the popularity of netbooks, although there are no numbers for Linux lawyers.  Like the Mac, it is likely to pop up in a law practice that purchases consumer, rather than enterprise, technology.  Linux comes in a variety of flavors with Ubuntu being one of the more common.  In fact, Ubuntu is in many mid-size to large law firms as a specialized network server, according to the International Legal Technology Association’s 2009 Technology Survey.  Ubuntu is an excellent choice for a lawyer moving trying out Linux.

We’re Not Compatible

Compatibility is one reason raised for staying on Windows.  It’s not necessarily that lawyers love Windows but they do prefer Microsoft Word.  If you are determined to stay in Microsoft Word, you’re committing to Windows or Mac OS for now.  That may change with Microsoft Office 2010, which will have Office Web apps that you can access from your Web browser.  Linux users with Mozilla’s Firefox Web browser will be able to use these limited functionality versions of Microsoft Office software, as will Microsoft Internet Explorer and Apple Safari users.

Let’s put Microsoft Office to one side, though.  If your document sharing and collaboration consists of e-mailing documents or using online collaboration tools, portable document format (PDF) is probably a more important file format than Word’s .DOCX.  PDF enables your recipient to access your document, without troublesome metadata, and without worrying about what word processor they have on their PC.  If that’s how you share your work product, then open source office suites like Open Office (for Windows, Linux, or Mac) and Neo Office for Mac may be good alternatives.  Undoubtedly, there are additional feature comparisons that can sway your decision toward a particular word processor, but most of us do not use the most advanced and arcane features of our word processors.

No Legal-Specific Software

Another frequent comment about the need to stay in a Microsoft Windows environment is the availability of legal-specific software.  This is undoubtedly true.  If you are using a typical practice management, litigation support, or time management software product, you will almost certainly need to download and install it in a Windows environment.  

The reality is that most lawyers are not using legal-specific software and some may agree with the comment from Sam Glover of the Lawyerist, that “most [practice management software] is really bad”.  For example, 55% of the respondents to the 2009 ABA Legal Technology Survey Report have case or practice management software (39.9% of solos).  Almost half of those use Microsoft’s Outlook e-mail and productivity tool, not a dedicated legal application.

If you are in that slim majority of lawyers using practice management software, or you want to join them, you can now use a number of online Software-as-a-Service offerings designed for lawyers.  They don’t care what operating system you use, just that you can reach them with one of a number of Web browsers.  The trend in Web-enabled legal applications seems to be one of growth, not decline, and is likely to happen even in large firms where the Web browser becomes the interface for internal and external applications.

Try a Flavor Other than Vanilla.  Mint Perhaps?

The drawback to the Macintosh OS is really cost.  If cost is no option to your practice, then definitely consider using a Mac because the hardware is delightful to look at and the operating system is very user friendly.  Linux can give you an inexpensive alternative, though, and has the added benefits of probably running on your current  (even old) hardware and having a nice interface too.  

If you have equated Linux with the old DOS command prompt, think again.  When you install Ubuntu or Linux Mint, you will be looking at an interface similar to Microsoft Windows or Apple Mac.  It’s not identical but the learning curve is not hard and, for those who point and click rather than reading any manuals, you can be up, running, and comfortable very quickly.  

The typical lawyer can run well-known software that will parallel their current Microsoft Windows environment.  Mozilla’s Thunderbird e-mail app and Firefox Web browser, Google’s Chrome Web browser, the Open Office suite (with word processor, spreadsheet, and presentation software), and TrueCrypt encryption are all available on Linux.  You can get some more ideas from Nashville, Tennessee, solo lawyer Zale Dowlen’s Linux for Lawyers’ site.  You can even run some Windows applications (yes, including Microsoft Office) thanks to software like Codeweavers’ Crossover Linux.

You might be balking at the communal, group hug nature of open source.  I won’t ask who supports your current operating system (Windows XP mainstream support expired in April 2009) but you can even buy support for your Linux OS, from companies like Canonical or any number of consultants.

You might still be reluctant to take the plunge.  I was, and installed my copy of Ubuntu 9.1 (Karmic Koala) on the same machine as my primary Windows XP, so that I could boot the computer into whichever one I preferred to use at the time.  Now I can get comfortable with features in Ubuntu, whose interface I prefer to Windows, and slowly transition off Windows XP.  I can browse other Windows computers on my network from Linux using Samba, and much of the rest of my work requires only Internet applications like Mozilla Thunderbird and Google Chrome, regardless of my operating system.  Microsoft Word 2007 and Open Office documents convert back and forth in no time.

Broaden Your Vistas Horizons

It may be that Windows 7 has something you can’t live without, like Apple’s iTunes!  Linux is not for everyone but it is a great time for lawyers to look at their options and balance the cost and features of their operating system.  As more and more services are accessible through a Web browser, and more applications are made to work across operating systems, solos and small firms can benefit from a closer look at Linux.

Simon Fodden already mentioned Avvo, a website that rates lawyers which was ironically sued soon after its launch.

I’ve noticed some traffic recently from one of their pages for Top Legal Blogs.  Slaw ranks quite well at #26, which is rather impressive when you consider the size of our American counterparts (there aren’t many other Canadian sites in the listing).

Their methodology is based on Alexa Rankings, which do have significant flaws, and are subject to manipulation.  The page might still serve as a useful resource for some of the top law sites out there, and it’s worth checking out.

We’ve introduced a new feature to the website: EasyReader. It’s essentially the ability to read any entry in much larger type and isolated from surrounding material. The link to enable you to do this is the small image of a page with a plus sign in the corner — — that will appear to the right of the title of an entry. Clicking on the image will cause an “overlay” containing the enlarged text to appear above the webpage; clicking anywhere outside the overlay or on the “close” button at the upper right of the overlay will cause the normal webpage to reappear. The hyperlinks in EasyReader are active, but clicking on one will take you out of EasyReader.

In order to make use of this function you must have Javascript enabled in your browser. If, for some reason, you’re unable to make use of this feature, you can increase the size of the web page text in most modern browsers.

It’s possible that you may encounter difficulties or infelicities in using this function. If so, please let us know, describing the circumstances.

Enjoy. Or, rather, Enjoy

On Saturday the Federal government released the terms of reference for the Iacobucci inquiry on Afghan detainees.

The report will include recommendations about what information should be disclosed in light of national security and international relations interests, and if any of the information is subject to solicitor-client privilege.  The documents reviewed will include those listed in the December 10, 2009 motion by the House:

• correspondences between Richard Colvin and the Department of Foreign Affairs
• human rights reports to the Department of Foreign Affairs
• those listed in Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada
• productions in the Military Police Complaints Commission in the Afghanistan Public Interest Hearings
• other related documents

The government has refused to fully reveal the documents to MPs without a court order on national security grounds, but Prof. Errol Mendes has stated that parliamentary privilege already grants them the right to the documents.

A press release accompanying the terms states that the review on disclosure ensures that MPs will receive access to the appropriate information, after an independent review.

I have a quintet for you today, five easy — and small — pieces, the first of which, fittingly, is Five Easy Pieces. There’s the 1970 movie, of course, made famous by the chicken salad sandwich scene. The title comes from an opening scene not actually used in the movie, in which, in the words of the script, there’s a:

CLOSE-UP of a program announcing a Dupea family
recital. The CAMERA SCANS down the bill . . .

The CAMERA COMES to rest on:
Five Easy Pieces – Grebner – Played by Robert Dupea.

But Grebner is fictitious. However, there were, perhaps not coincidentally, five songs by Tammy Wynette used in the movie — and five classical pieces used as well. Because this is Friday, I’ll recommend you click the following link and let the great Ms Wynette rather than Bach play in the background as you look at the other four pieces here.

Next, for something completely different: a clip from the Globe and Mail dated April 11, 1969, that I came across while doing some research. (Click to make it legible.) O tempora, O mores.

Third, is a new ad campaign by Iceland, the country that wants to be your friend (so long as, I suspect, you’re paying). It’s well done, and nails our fascination with social media just right. Not bad for a country whose map looks like a badly diseased organ. They even manage to make the image look… appealing interesting.

My fourth item I borrow from Connie Crosby’s post yesterday on the law firm Morrison Foerster: go and look at their website. Not only do they have the chutzpah, balls, guts — call it what you will — to call themselves MoFo, they also have simply the coolest damn website of any law firm I have ever seen. I don’t know how potential clients feel about it, but it makes me think about working there.

And last, but likely infinite and certainly irrational, is the announcement that this coming Sunday is Pi Day, at least in American calendaring: 3/14. Give a thought at 1:59 on that day to this glorious ratio (and to all of those students who learn at that exact moment on that exact day that MIT has accepted them). In preparation, you should visit the Pi Day website, if only to glance at The Number itself played out to a million places:

India Code makes current versions of Indian Acts available for free:

India Code the India Code Information System contains all Central Acts of Parliament right from 1836 onwards. Each Act includes: Short Title, Enactment Date, Sections, Schedule and also Foot notes.

The Acts can be searched by “Short Title, Act Number, Act Year, Act Objective, Full Act Text, and FreeText Search.” The interface requires double clicks, and the results are not in a perfect form (click “download full act for best results), but the coverage is impressive (1834-2010), and on the left sidebar there are a couple useful tools, including a list of all “Central Acts”, either alphabetical or by date.

The site also links out to other important legal system sites, such as courts, and to specific types of documents, including judgments.

Not a lot more information on the site about updates, currency, or their plans for improvement. The site seems to be supported by India.Gov.In

Mobility, Equality, Internet, Language? Which of these doesn’t fit? According to a recent BBC survey all of them fit. A sizable majority of nearly 28,000 respondents from 26 countries (79%) indicated that they feel that the Internet is a fundamental human right, BBC story. The data from the survey of 26 countries has other interesting results. The three countries who had the highest percentage who believed the internet was a fundamental right were: South Korea (96%), Mexico (94%), and China (87%). In Canada 77% of respondents felt that the internet should be a fundamental right of all people, while 64% of Canadian respondents stated that they could “cope without the Internet”. Other interesting findings were the most valued aspect of the internet (In Canada: communication, overall: finding information), should the internet be regulated by government (somewhat higher in Canada than overall) and aspects of the internet that cause the most concern (Canada and overall: Fraud followed closely by violent and explicit content) . Lastly about one-third or respondents felt that the internet was a good place to find a boyfriend/girlfriend, I’m not sure if that ties into the fundamental right question or not………. View the results for yourself.

I’d like to share a new website launched yesterday in the BC market by Dye & Durham:  The BC Law Watch Blog.

The approach with this website is very focused on news within the BC legal community – from local associations, to government agencies, the LSBC, Law Foundation and the BC Courts, to name a few.  And for those interested, I posted some additional comments on the monitoring tactics we’re using in a VLLB post yesterday.

Please drop by and have a look.

Over on 3 Geeks and a Law Library, Greg Lambert makes note that yesterday at the Law Marketing Association conference, Joe Calve, the new CMO of Morrison Foerster mentioned he had moved their Library department  into the Marketing department. Lambert questions the change, but does say, “From what I’m hearing from the Librarians at MoFo, they are excited about the change and are looking forward to the transition.” MoFo is known for doing things a bit differently than everyone else, after all.

I do think it odd, but perhaps no odder than having the Library report to IT as in some organizations. I see the Library ideally as a parallel department supporting Marketing as well as other departments. But it likely depends on the organization and culture of the firm as well as its overall strategy. What I can think of to support this move:

• if the Library is doing competitive intelligence as a major initiative
• if the Library is doing a lot of proactive business intelligence research to support business development
• if the Library is involved in website development and maintenance
• if the Library contributes substantially to the extensive Client Alerts and Newsletters put out by the firm
• Marketing often has better financial support in a firm than the Library or even IT so it can help secure better resources for the Library

Embedding a librarian or two in the Marketing department would be ideal, but I’m not sure about moving the whole department there. What happens to the whole research function and the administration of resources to support areas other than Marketing?

Greg Lambert is going to try to find out more about the change to help flesh out the reasoning. My question for Slaw readers: does this change make sense to you? What other reasons can you think of for/against this move? I still need some convincing.

Photo: Explore by Kevin Dooley – made available on Flickr under Creative Commons.

A couple of days ago, the New York Times feature “Room for Debate” began commentary (“Attacking Lawyers From the Right and Left“) on a story involving a group called Keep America Safe. (I hate the power we give to “proper nouns,” letting them force us to say words that we’d never otherwise utter. But that’s another story.) This excerpt from their “about” page will give you the flavour:

The United States remains a nation at war. We face a growing threat from rogue regimes that seek or have already obtained nuclear weapons. America’s interests are challenged by an authoritarian China, a resurgent Russia, and dictators in our own hemisphere who ally themselves with our adversaries. Amidst the great challenges to America’s security and prosperity, the current administration too often seems uncertain, wishful, irresolute, and unwilling to stand up for America, our allies and our interests.

The Board members are Elizabeth L. Cheney, Debra Burlingame, and William Kristol.

This group released a video via YouTube that strongly criticized U.S. Attorney-General Eric Holder for hiring to the Justice Department seven lawyers who at one time had represented terrrorist suspects, and who, the video implied, therefore had suspect “values.” These lawyers were labelled the “Al Queda Seven” in the video.

The question asked by the Times editors was “Is it fair to criticize lawyers for the actions of their clients?” Answers have been supplied by a number of prominent law professors and legal commentators, all but one or two supplying the obvious answer of no. All are worth reading, because the issue is nuanced around the edges, it seems to me. 

For example, Stephen Gillers, legal ethics prof at NYU, moves the question to whether any of the criticism is right, pointing out that “When a lawyer is free to choose, the choice can be criticized because the freedom gives the lawyer moral agency.” But he treates litigation differently from, say, corporate work “[b]ecause litigation happens in public, it educates us and enables the law to grow.”

I think there’s some merit in that distinction, particularly if litigation is understood to mean actions involving the government. One gross oversimplification I use from time to time gives lawyers two main social functions: that of creating new wealth and that of supporting the weaker against the stronger. The latter, in my view, is the obligation the profession assumes in return for the right to the monopoly on practice. However thought of, though, the professional duty to represent those accused by the state of wrongdoing means necessarily that lawyers will associate with folks whose values they likely don’t share. 

But that doesn’t stop some people from conflating lawyer and client, from recoiling in distaste: how can you get a rapist off on a technicality? how can you defend murderers? and so forth. Most difficult of all for some people are the politico-criminal cases such as those involved in this current American right wing brouhaha. Larger forces than run of the mill human venality are at play and even lawyers can be swayed by the wieldings of power that may occur.

I remember a case that occurred in Canada just as I was beginning my career — nothing so extreme as terrorism — just a small matter of social activism and strong language. The account is written up in what I think is an essay by a student at St. Thomas University — I found it as a .doc file via a Google search. It tells the story of Tom Murphy, who, in 1969, wrote an article for The Brunswickan, the student newspaper at the University of New Brunswick. (See also Canada’s Rights Movement: A History.)  Murphy’s article was harshly critical of the judge who sentenced Murphy’s mentor and physics professor to 30 days in jail for violating the terms of his suspension from UNB, which, in turn, was imposed on him for having taken part in a protest. Murphy said, among other things, that the courts of New Brunswick were “simply the instruments of the corporate elite,” and that the judge was biased and unfair, because “[c]ourt appointments are political appointments. Only the naive would reject the notion that an individual becomes a justice or judge after he proves his worth to the establishment..”

Murphy was cited by the judge for contempt of court as a result. The difficulty, as I remember it, and as this piece recounts, was that no New Brunswick lawyer would represent Murphy. In the end, Murphy wrote to John Diefenbaker, who in turn arranged for Canadian Civil Liberties Association lawyer, Alan Borovoy, to be Murphy’s lawyer. Murphy was sentenced to ten days in jail.  ( R. v. Murphy (1969)  N.B.J 53)

Wouldn’t happen now.

A recent case has tested Bill C-45, the amendment to the Criminal Code that attached criminal responsibility to an organization or corporation for negligence related to health and safety in the workplace, and broadened the range of individuals who are subject to charges under the Code. Since the inception of Bill C-45 on March 31, 2004, charges have been laid in just four cases, and only one resulted in a conviction. As a result, many are wondering if the enforcement of such provisions is even possible.

Moreover, Bill C-45 added Section 217.1 to the Criminal Code to impose a duty on organizations and their representatives (whether a director, partner, manager, supervisor, employee, member, agent or contractor of the organization) who have authority to direct how others do work or perform a task to take reasonable steps to prevent bodily harm to persons performing the work or task, and to the public, arising from the work or task.

Well, another attempt at enforcing organizations’ criminal liability as a result of the acts or omissions of managers/supervisors is underway.

Police in Sault Ste. Marie have charged two individuals and one organization with criminal negligence causing death in the death of public works employee James Vecchio at the city landfill: crane operator Anthony Vanderloo, crane owner David Brian Selvers, and 1531147 Ontario Ltd., operating as Millennium Crane Rental of Sault Ste. Marie. The criminal charges came after the police service issued a statement that its 10-month investigation into the fatality was complete. Preliminary results suggest that the operator of the crane, which was loading concrete into the excavation hole where Vecchio was working, backed up too far while repositioning, and subsequently fell into the hole, crushing Vecchio.

These criminal charges came shortly after Ontario’s Ministry of Labour confirmed it also laid six civil charges under the Occupational Health and Safety Act. OHS charges against Millennium Crane revolve around the proper maintenance, operation and use of a crane, and providing instructions to employees about operating equipment in a manner that might endanger the operator or another individual, including failing to ensure the crane operator was properly licensed.

The first court appearance in the Ontario Court of Justice provincial offences division is scheduled for March 22, 2010.

Criminal negligence causing death is an indictable offence for which the maximum sentence is life imprisonment, or very steep fines with no limits. If the case goes to court, in offences based on negligence, the court must determine whether an individual acted so carelessly or with such reckless disregard for the safety of others as to deserve criminal punishment. The Crown will have to prove that employees of the organization committed the careless and reckless act, and that a senior officer, director or manager did not take the necessary reasonable steps to prevent them from doing so.

We will have to wait and see how this case evolves.

The provisions of Bill C-45 may not yet have received the judicial interpretation that it warrants, but the tide maybe changing. In any case, full compliance with the Occupational Health and Safety Act duties and requirements should provide organizations and corporations with a strong defence against a charge of criminal negligence.

Here’s a selection from the last few weeks of tweets that I and others think might interest those who don’t use Twitter or who don’t follow the authors of these tweets.The source is shown by the @xxxx at the end of the retweet. If none appears, it’s because I’m the source.

If you are on Twitter and read or publish something that you think we should re-broadcast here, simply include the hash tag #slawca in the tweet or retweet. If you’ve published something on Slaw, there’s no need to use that hashtag on Twitter: all it does is bring to our attention things we might not otherwise have seen. 

• Don’t say I didn’t warn you about these random breath tests. I predicted this this way back in Oct. http://bit.ly/yD5hM by Prutschi
• Legal Eve blog: And the Oscar Goes to… Logorama. Keeping lawyers up at night. http://legaleve.wordpress.com/ by wiredcamellia
• RT @rhh Amazon opening a Canadian facility: http://j.mp/c2qwwQ by stevematthews
• RT @jasnwilsn: “Is there a future for law books?” http://bit.ly/dqm9fs <thoughtful and accurate
• RT @karensawatzky From VoxPopuLII: Environmentally-Friendly Citations http://bit.ly/dDwaOq by richards1000
• “A conversation with Dr. Ann Cavoukian” http://bit.ly/bE86NB from “On the cutting edge” by karensawatzky
• RT @LawProf The IT Law Wiki has just passed 7500 entries. Check it out http://www.itlaw.wikia.com by conniecrosby
• The only legal entity among the UK&apos;s top 200 brands? The answer might surprise you: http://bit.ly/acbElf by jordan_law21
• RT @thetrialwarrior Access to Injustice: Pro Se Litigants, Civil Justice Reform and the Economics of Law http://bit.ly/diNGcV
• @UTLaw was not like this. The kids from Western Law are keepin&apos; it real, yo: http://bit.ly/a9gg6H by jacobglick
• RT @WSJLawBlog: On Working Mothers at Big Firms: A Blistering Critique http://on.wsj.com/cqB2Uw
• “The 21st Century Law Library Conundrum: Free Law and Paying to Understand It” http://bit.ly/9zfRbv by rleiter

The January/February 2010 Law Librarians newsletter put out by legal publisher Westlaw has published an article entitled Law Firm Economics and the Librarian—Bring Value Through Training. The lessons can apply beyond the context of private law firm libraries:

“Bring value through training. That was one message that came through loud and clear recently in ‘Succeed in the New Law Firm Library Reality—Learn the Business Side of the Firm’, a webinar hosted by the American Association of Law Libraries (AALL) and the informal group of law library managers of the Law Librarians’ Society of Washington, D.C. (LLSDC) (…)

“So how can training attorneys help? Here are a few ways:

• Training makes users more efficient and more cost-effective. They can do more work for more clients with more relevant results in the same amount of time, increasing productivity.
• Training limits total use of online services and keeps costs down, which has an impact on future contract negotiations.
• Training brings costs down for clients to whom they are passed along (much less common these days—clients often won’t and sometimes can’t pay).”

“Strauss [administrator at Wiley Rein, a Washington area law firm] stressed that this is an opportunity for librarians to ‘take ownership’ and that our ownership needs to be more visible and measurable. In particular, librarians can do the following:

• Show how the time spent training is reflected in cost savings and reduced usage.
• Talk to your more senior attorneys about the work product they are getting from your trainees. Is it better? If not, find out why not and work on improving your program.
• Survey your users to see what’s working and what isn’t. Elicit feedback and, where appropriate, highlight success to your higher-ups.
• If you aren’t already doing a self-review of some kind or annual report on activities to promote library services, you should be.”

We’re pleased indeed to announce that Yosie Saint-Cyr has joined Slaw as a regular contributor. Yosie was called to the Quebec bar in 1988, where she practised employment and labour law until 1999. For over 10 years Yosie has been the Managing Editor of the Human Resources and Compliance Collection from First Reference and she is the managing editor of the Human Resources Professional Association (HRPA) of Ontario’s monthly member e-newsletter ELAW. She is one of Canada’s best-known and most-respected HR authors, with an extensive background in employment and labour law across the country.

Yosie can also be found on Twitter @yosie23.

Please welcome Yosie Saint-Cyr to the Slaw community.

I don’t make a habit of posting my newspaper articles here – but this one has received more than normal attention on my own blog, so  thought it might be worthwhile posting it here as well.  Its on my blog, and on Canoe

I can’t post it here in full for contractual reasons – but the gist is that a 19 year old student has been sued by the North Face clothing company over his South Butt clothes that mock North Face fleece jackets worn by the popular crowd at his school.

In response to North Face’s tagline, “Never stop exploring”, South Butt adopted “Never stop relaxing.”

The defense itself is quite amusing – athough I understand that the court was not thrilled with that approach.  The claim is here.

Unless it is settled, the case will ultimately be decided on the technicalities of U.S. trademark law.

Since one legal test of trademark infringement is customer confusion, you be the judge: Are the marks confusing enough that customers might think products bearing them are from the same source?

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.

CaseStudiesOnline.com is a new web site with hundreds of social media marketing case studies, all fully indexed and searchable. The site was created by Tod Maffin, a well-known strategist, consultant, speaker and thought leader based in Vancouver. The site is currently in beta with more case studies being added each day. Maffin also plans on interviewing both thought-leaders in social media marketing and the people in the trenches who are putting these tools into action.

Here’s a short video by Maffin showing how CaseStudiesOnline.com works:

I took the opportunity to interview Tod Maffin over the phone last week to find out more for the Slaw audience:

Connie Crosby: What inspired you to put this website together?

Tod Maffin: I do a lot of consulting work and presentations for a number of clients, primarily independent professionals such as lawyers, accountants, realtors and so on. I have always been racking my brain to find a really good source of case studies. There are lots of articles on the web where people have said, we did this phenomenal YouTube campaign and wasn’t it great, we had 4,000 views. But 4,000 views don’t necessarily translate into dollars in pocket. So it was really difficult to find true case studies where you could see the bottom line value.

What I had started to do was just collect a bunch on my own. I had originally just bookmarked them, then I built a little bit of a database so that I could just type in a couple of keywords like legal, Twitter and it would pop up with some case studies. And then I thought I built this database now, I might as well let other people use it. That’s where it was inspired.

CC: Are you thinking of creating a business model around it, or are you going to keep it free for everybody?

TM: – I’m going to keep it free for everyone. The business model is that I’m going to be doing some in-depth interviews with folks who have planned these campaigns and I’ll be doing hour-long interviews, sometimes video and I’ll have the complete transcript available. You’ll be able to download it and listen to it as an mp3 and for those ones I’ll charge a small fee for people to download and access. But by far the vast majority of case studies are going to be 100% free for people to access.

CC: I noticed on the site it says “welcome, guest” on the top. Are you thinking of having people sign in to something like a “my case studies online”?

TM: What you see right now is the first phase. There are a couple of things that are coming in the next few weeks. One is a ratings system so that people can flush out the exceptionally good case studies. Another is exactly what you are suggesting which is a “my case studies online” version of the site, where you’ll be able to identify the categories or tactics or demographics that are specifically of interest to you.

In the meantime there will be sort of a sub-version of that where you’ll be able to specify, just by typing in the special URL, you can narrow down specifically to the type of category you are interested in. So, for instance, you’ll be able to type in legal.casestudiesonline.com and it will take you to all the case studies that are around law. That’s not in place yet, but it’s coming. If I could only have the legal case studies there right now! But the same thing will apply for anything, such as moms.casestudiesonline.com or youtube.casestudiesonline.com and it will take you directly to those searches.

CC: What types of case study contributions are you looking for?

TM: I am really looking for examples where an organization did something in the realm of social media and received some knowledge back from it. So there are plenty of websites that you can go to where they will tell you how many hits they got to their website or how many Twitter followers they got. I’m not really interested in that so much as finding out specifically what we learned from that. How will we apply our brand in the future as a result of this marketing campaign that we did using social media?

So I want it to be a little bit more of a rich value. That said, those are harder to come by on the Internet. It’s going to require me and my contributors to do a lot of legwork, interviewing a lot of these folks. In fact, as we’re speaking right now I’m on my way to Toronto to do a bunch of interviews. One of them is with the ad agency behind the Doritos campaign, the one where they did a brand handover and they essentially gave the brand to bloggers and to the public to re-shape as it went. So, to be able to drill down into those specific case studies is where a lot of the value is going to be.

CC: If a law firm or other legal organization wants to contribute something they need to think about what they are willing to share in that regard?

TM: That’s right. There are some industries, the legal industry being one of them, that have in the past been rather sensitive about what they let go in terms of both their successes and failures in marketing campaigns and branding endeavours. I really hope by having some of these things out there it will provide more interest, certainly more value, for a lot of organizations to build that kind of knowledge internally and share it. You know, it’s sort of in the spirit of “co-opetion”. You hear that phrase quite a bit and the idea that you raise the tide and it floats all boats. I’m a really big believer in that.

Hopefully we’ll be able to get more independent professionals on board; my role and the role of my contributors is to provide that knowledge. Now, that said, that’s one approach for getting information and that’s really if I or some of the contributors just stumble upon it online.

There is a secondary way if your law firm or associated kind of company has a good example of something that you want on this website: that’s what some of the revenue model for this site is as well. If you want to appear on the site guaranteed and get interviewed by me and put together one of those packages, then that can be done for a fairly low investment.

Thanks to Tod Maffin for the interview. For more information, please visit the website CaseStudiesOnline.com.

Maybe its because we’re just on the good side of the dead of winter, but my weekly Slaw assignment led me back to an article I wrote in 2001 in praise of a communication model I learned to appreciate in years spent hanging out at the beach.

I called the article “Windsurfing 101″ and described the four-part model I learned way way back in 1984 when I took my first Canadian Yachting Association windsurfing instructor course. Back then I was taught that a good teacher:

1. Sets specific, clear and measurable learning objectives
2. Divides information into logical chunks
3. Maximizes audience participation
4. Includes an evaluative conclusion

Reflecting on the model over 25 years later, I am reminded how old I am. Yet the good-old CYA model still seems sound and valuable. And while not tailored for oral advocacy, it has concepts that should help the oral advocate. “Chunking” of complex ideas into understandable parts is an obviously useful concept. Proper goal setting also has potential. Consider the benefit of an approach that treats a legal argument as a series of achievable learning objectives. I like it because it should promote focus (as planning generally does). It also creates a path to success that is more actionable than that created by broader, outcome-based goals like “winning the motion” or appeal.

Is there any truth or wisdom that cannot be rooted back to the beach? Read the article here, and please also share links about similar techniques and models below.

I see a change coming on how Alberta Courts deal with costs for computerized legal research. Mr. Justice MacLeod in Aram Systems Ltd. v. NovAtel Inc., 2010 ABQB 152, wrote:

[23] With great respect to those decisions made at an earlier time, I think that the view of computerized legal research as a mere alternative is no longer consonant with the reality of current legal practice. Such research is now expected of counsel, both by their clients, who look to counsel to put forth the best possible case, and by the courts, who rely upon counsel to present the most relevant authorities. Indeed, it might be argued that a lawyer who chooses to forgo computerized legal research is negligent in doing so. This is particularly so given that many law firms and indeed governments are now cancelling hard copy subscriptions to legal resources in favour of the electronic versions. The practice of law has evolved to the point where computerized legal research is no longer a matter of choice.

[24] In response to Justice Watson’s reference to Bob Cratchit’s coal, I would point out that the disbursement claimed in these cases is for access to the legal databases and is based upon the time spent doing research for the particular client on the particular matter. There is no suggestion that the disbursement is meant to reimburse the law firm for the cost of computers as capital assets. In my view, disbursements for electronic legal research are similar to disbursements for photocopying; it is the copies, not the copiers, that are being paid for.

[25] Nevertheless, I am bound by the weight of authority and must therefore refuse to allow the disbursement. Perhaps the time has come for our Court of Appeal to revisit this issue, but in light of the existing authority, I am not in a position to do so.

Emphasis mine.

This is more of a handkerchief floating to earth than a gauntlet being dropped, but still, I see this as a call to action for modernizing how disbursement costs for computer assisted legal research are dealt with. I am certain that if legal research is performed for a matter today, a computerized gathering method is used for some part of that task. I feel confident suggesting that there is a fee paid to someone for a significant portion of the information required.

This issue of cost recovery for has come up on Slaw in the past. See Recovery of charges for searches on online databases redux and Judges and electronic searches and the many comments posted. While these posts deal with disbursements allowed by a taxing officer, similarities exist with reasons for costs in the cause.

Any suggestions from readers on where this issue is headed in 2010?

This is definitely a bargain for firms and individuals using Twitter.

Chris Pirillo’s new e-book 140 Twitter Tips, a 14-page PDF, offers useful and practical hints for all types of Twitter users. Tips include:

• The best time of day to get retweets
• How to effectively respond to debates and criticisms
• Don’t use too much jargon
• Oversharing vs. undersharing

The best part: the e-book costs only $1.40.

See ReadWriteWeb for more information about this e-book and Chris Pirillo.

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 week saw the release of  Canada’s 2010 federal budget.  Maybe next year, I’ll see if blogging qualifies me to join the lock-up; but for 2010 I stuck to web-based review and analysis:

• The budget was fairly popular among the science and innovation crowd — though reaction to the budget followed faithfully the degree to which each constituency’s requests were funded.
• The full list of relevant line items is here; but this post is a good starting point to focus on the top budget items for biotech and other knowledge-based industries, including an increase in basic research funding, a new innovation commercialization program and…
• The demise of Section 116! Section 116 had created an onerous tax filing obligation that generated zero tax revenue, and has been accused of being a major barrier to an influx of U.S. venture capital investments in Canadian companies. If Section 116 was the barrier it has been made out to be, we’ll see a new influx of capital. It would be great to be able to look back and definitively assess the impact of this change, so if anyone can think of a comparator group for a good empirical assessment, please let me know in the comments.

Meanwhile, the rest of the biotech world did not stand still.  Canadian biotech deals and new scientific developments continued apace, and India continued its hot-and-cold approach to innovation.  Catch up on these developments at The Cross-Border Biotech Blog or follow us on Twitter @crossborderbio.

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.

Watching Canada win gold in men’s hockey and landing our nation the Olympic record for most gold medals won by any country in winter sports was an unforgettable experience. The national celebration and the pride and the joy we are all experiencing at being Canadian is something to savor.

“Own the Podium” – never liked it. Seemed so un-Canadian, so boastful, so competitive, and yet… how effective. As a brand “Own the Podium” named the dream and captured the aspirations of our athletes and fans.

As we return to life as usual what else can we take from these games? I would suggest the power of dreaming big and naming our dreams.

In coaching we create a space for clients to take time out from the daily routine to rise above and think about what might be possible, what they might want to create, and give name to their dreams.

I am privileged to work with people who have the courage to pursue their dreams. Some of the dreams are simple – like finding the right home for a legal practice, others more ambitious – like the journey from lawyer to corporate CEO.

The most important thing is not the size or scope of the dream but in having the courage to name it and take action and support others in doing the same.

A young woman called me last month to speak about her professional aspirations. She was getting mixed advice from all those close to her, when the bottom line is she knew what she wanted to do and create and simply needed to listen to her own wisdom and ignore the fear of the people around her.

Pessimism isn’t an attribute; it is another word for fear and sometimes comes disguised as common sense. Often when you set a bold goal or determine to make a change it is the people closest to you who will be the least encouraging. Because they love and care for you, they fear for you as well. When I started my own company a large number of well-meaning individuals told me in the challenging first year that I could return to a salaried position. Advice to go backwards was the last thing I needed to hear. It was the people who had confidence in me and assured me I was on the right track that really helped.

Sometimes reaching for an ambitious goal can be uncomfortable. In the space between setting the goal and achieving it there will be challenges, struggles and uncertainty. The more important or significant the goal the more you can expect you will be challenged.

When the stress and tension hit, there can be temptation to return to the status quo – to determine that the pressure isn’t worth it and to abandon the dream. As I once heard Tracy Theemes of Sophia Group advise a young group of lawyers: “stay with the tension.” When job hunting, the temptation can be to take the first job offered. It is so important though not to let your experience of discomfort sway your decision making. Stay with the tension, it tells you that you are undertaking something of great importance.

There is a saying in the arts that success is due to 5% talent and 95% persistence. While I can’t be sure of the breakdown I do know that achieving success in any profession is very much determined by our ability to withstand the discomfort of making changes and reaching for our dreams by climbing over obstacles, weathering the storms, withstanding the pressure and at times just hanging on.

Why is it so important to name our goals? Naming our dreams and goals helps us to strengthen them. When the pressure is on it is easier to succumb when we haven’t fully committed. When we name our goals we also are able to better the harness the power of our mind. Our greatest brain power of our mind lies in the subconscious. By setting a target and focus we are sending a message to our own brain to be on the alert for opportunities and connections. It can often seem like magic when we set a goal and opportunities start to emerge. With a clear focus we can perceive the opportunities that we were missing before.

Another reason for naming and sharing our goals is that it enables others to help us. When we are clear about what we wish to achieve it enables the people around us to throw in their support and to help connect us with opportunities. “Own the Podium” was successful in part because of the enormous amount of support that the program generated for our Canadian athletes.

The lingering gift of these Olympic Games is that by dreaming the big dream and setting a bold objective we can smash the odds and make it there.

Take inspiration from our athletes – uncover and name your dreams.

I thought I’d draw Slawyers’ attention to a new student-run blog on international law, Legal Frontiers, run by law students at McGill University (my own alma mater). The site officially launched in January, and the content so far looks very interesting. Check it out and post a comment.

There may be stars in your eyes, soon. Google has introduced a search facility that lets you star certain search results, in effect marking them as “faves” the way that Google Reader does. Then those items will show up in a special box at the top of your searches — whenever they’re relevant, of course.

The Official Google Blog uses the example of having “starred” your favourite football teams’ websites. A subsequent search for “nfl,” for example, will bring these up in the star box.

In my view, the idea has merit as a substitute for bookmarks in certain contexts. This, in effect, lets the Google relevance machine manage your “starmarks” for you. They’ll even manage the business of attaching a star to a site when you’re not in a search, provided you have the Google Toolbar installed:

Stars sync with your Google Bookmarks and the Google Toolbar, so you can always see your list of starred items in one place and easily organize them. Even beyond the results page, while browsing the web you can quickly click the star icon in Toolbar to create a bookmark, and those pages will start showing up in the new stars feature.

(A Google Chrome and Firefox extension would make a lot of sense here.)

Google is rolling the facility out over the next few days. I don’t yet have it on my Google.com searches. And I don’t know whether the rollout includes Google.ca as well.

[via ResearchBuzz]

As many of our readers surely know, Google has been reassessing whether to continue its operations in China following a series of hacking incidents that allegedly originated from that country.

Prof. Ronald Deibert of UofT revealed today that the hackers also attempted to access Google directories, which was not widely reported when the story first broke.  Deibert is one of the experts Google is consulting with on how to respond to the incidents.

Despite the The Investigative Powers of the 21st Century Act (IP21C) that was tabled before the prorogue, Deibert claims that cyberspace generally operates in a policy vacuum in Canada.

His recent paper with the Canadian International Council, China’s Cyberspace Control Strategy: An Overview and Consideration of Issues for Canadian Policy, states,

Like many other countries, Canada depends on economic exchange with China, and is home to a large and growing Chinese diaspora community that can be vocal critics of China’s human rights policies. It is also the home of some of the leading research and development projects on Internet censorship, surveillance and information warfare that, at times, are antagonistically linked to China.

He proposes that Canada:

(1) Take a leadership position in promoting a global, multilateral agenda around arms control in cyberspace. The present state-based cyber security agenda is almost entirely absent of voices or forums dedicated to creating norms of mutual restraint, confidence building and information sharing.
(2) Take a more active interest in the role played by Canadian companies which support China’s vast censorship and surveillance regime.
(3) Lead by example in domestic policy areas, including addressing loose laws on wiretaps, ambiguous oversight of intelligence agencies, shoddy content filtering mechanisms around access to pornography and hate speech, questionable deep packet inspection and data retention practices by internet service providers, and other areas in which Canadian practices provide justification for China’s own domestic censorship and surveillance regime.

As much as I’m for more legislation and discussion over cybersecurity issues, especially for Criminal Code warrants, production and preservation orders, there is some room for privacy concerns here as well. Currently, the technological crime units of CSIS and the RCMP report threats to Public Safety Canada.

The recent Speech from the Throne lists a “cyber-security strategy to protect our digital infrastructure” as a goal to address  “terrorists [who] threaten our country’s security.”  Given the recent history of these agencies in dealing with threats, the IP21C may not have adequate oversight and scrutiny to protect the privacy interests of citizens.

Yes, cyber-security is important.  But enough with the boogie-monsters already.

Lawyer, Slawyer, and newspaper columnist David Canton has teamed up with rtraction, an Ontario IT company, to produce PolicyTool. The notion is that businesses need policies in place to govern a variety of employee practices but can’t always afford the services of a lawyer to devise them; PolicyTool invites you to answer a number of questions and feeds the answers into well-drafted “boilerplate,” resulting in a “comprehensive and informed framework for your legal counsel to quickly create a binding policy.” PolicyTool does the initial drafting; and a lawyer engaged by the user will tweak and approve.

At the moment the only area in which PolicyTool offers its service is in relation to the use of social media by employees. Other policy areas are under development.

The use of PolicyTool is currently free.

It’s been getting a lot of coverage on Twitter and has been bookmarked a couple of hundred times on Declicious. Congratulations, David.

And how are we feeling today?

A feeling might be the most private thing — experience — we have. It seems to happen deeper inside us than our heady thoughts. But very very often, what inside will out. And nowadays that outing of our feelings takes place on the internet, thanks to the facilities of Twitter, Facebook, Buzz and all the usual suspects.

What if someone collected all of those expressions of emotion and made them available to the curious? If someone did that it would look like We Feel Fine by Jonathan Harris and Sep Kamvar. These guys build a bot that trolls the net looking for “I feel…” and similar precursors to emotional confession. The latest instances are then made available to us, the curious, in a variety of ways.

We Feel Fine is a dynamic visual display of these flecks of feeling. Launch the Flash viewer and see a blizzard of swirling dots, each an atom of emotion from someone somewhere. A click on the dot pops up a precis of the feeling statement and maybe an associated picture. But if everything is too much for you, you can filter by feeling (“sarcastic” “unappreciated”), gender, age, weather (!), and location, until you’re looking at just those instances that interest you. You can also simply call up various displays of current expressions of feeling with the simple menu at the bottom left. (The accompanying graphic — click to enlarge — is an illustration of one such display.)

Even a few dancing dots too much on a Friday? Well, We Feel Fine is also a book. (There: that feels better, no?) You can buy it at Amazon, but the internet being what it is, you can also see (some of) it online or download the selected pages as PDF files. The book, as you might imagine, provides some editorial discussion of emotions in addition to notable excerpts from the rest of us.

So how do you feel now? Curious? Disgusted? Indifferent? Check out We Feel Fine and find out who else has that same private emotion right now.

Every now and then it is “improving,” as the Victorians used to say, for a lawyer to be caught up in the toils of another profession, in order to recapture the client experience of uncertainty in the face of an opaque problem. I’ve had the fortune, recently — I wouldn’t label it “good” — to be in that situation and it has occurred to me, not for the first time, that there is a way to make the experience better for the lay person, a way that is all too seldom taken. My small suggestion is that professionals who deal with clients consider preparing printed material for the clients to take away with them, material that will help them understand what is going on.

There’s a perfect storm of reasons for these “hand-holders,” as I call them.

• The client is dealing with a complex problem with which he or she is unfamiliar, and a carefully thought-out, written explanation will be better expressed than an oral one.
• The professional is always busy, not to say rushed: time is money or scarce or beyond the professional’s control. Hurried explanations often are the result, where much can be omitted.
• The client is likely stressed, typically because professionals are consulted only when there’s a serious problem or plan; and emotional stress does very bad things to clear thinking and to memory. We forget to ask certain questions — forget, even, to consult our list of important questions — can’t remember the answers, or, worse, think we remember but get it wrong.
• The professional has to translate out of jargon and into the client’s vocabulary — or, indeed, into a language other than English. When this is done in the moment, it can be a haphazard matter, and there’s plenty of room to under- or over-estimate the client’s ability to understand.
• The client may well feel inferior because he or she can’t fix or even understand the problem without help. This can lead to faking comprehension and to suppressing questions that might be thought too simple or “stupid.”

In many cases the quality of a professional-client meeting would be improved by being able to give the client something in writing to take away, something, perhaps, even to refer to during the meeting. This “something” might summarize aspects of the client’s situation (all client problems have elements of a routine nature in them), give the client things to think about before a follow-up meeting, point to reliable resources that could help the client get an even better understanding of the problem — and even invite feedback on the meeting that’s just occurred.

Of course, in the case of law, hand-holders would be more useful in areas of practice that deal with real rather than corporate persons; but even with the latter, I can see some real utility in a lawyer’s being able to provide straightforward written material on some standard situations: “contracting for services,” “leasing in a shopping centre,” “developing employment contracts,” and so forth.

There will be reasons why these hand-holders aren’t in use more often than (I suspect) they are. It takes time to distill the essence of a legal situation and to put it into good, clear writing, time that no one is paying for, up front at least. Professionals, understandably, think highly of themselves, part of which entails a belief that they give good meeting, that they’re good at clear explanation in the moment. My guess would be, however, that the last time these sorts of assumptions were checked out rigorously by outside examiners was never. Professionals also focus, of course, on the unique aspects of a client’s situation — that’s where the action might be — and so they may tend to forget that every unique problem rests atop a bedrock of quite stable material that could be laid out in writing for the client.

Modern technology introduces some factors that could make hand-holders even easier to produce and even more useful. Thanks to the internet, cooperation among firms or lawyers within an umbrella organization is dead easy; producing hand-holders as a cooperative effort would take some of the burden out of it. It’s nothing, technically, to pour general text, then, into firm-branded moulds. Online versions could contain hyperlinks to the chosen resources. And, given the ease of document assembly and printing, a lawyer could even compose a “What Just Happened” hand-holder in five minutes after a meeting by selecting elements from a list that could be ready for the clients by the time they’ve got their coats on.

Serving the client well is reason enough to produce hand-holders. But there’s a return to the professional, too: hand-holders are tangible symbols of the help that’s being given, of the work that has been and will be done on the client’s behalf, work for which the client is grateful each time the hand-holder is read.

Last night UWO Law hosted a presentation by law and undergraduate students of the trial scene from Merchant of Venice. Following the play, an appeal was heard to the Western Law Moot Court, featuring an all-star line-up.

Shylock’s sentence was appealed by Earl Cherniak, QC, and the Attorney General of Ontario Chris Bentley represented Antonio.

The bench in the appeal consisted of Justice Ian Binnie of the Supreme Court of Canada, Justice Eileen Gillese of the Court of Appeal for Ontario, Antoni Cimolino, General Director of the Stratford Shakespeare Festival, Professor James Purkis from the Department of English at Western and legal journalist and author Jeffrey Miller.

(Far Left) Irfan Premji, Earl Cherniak (Front) Prof. Stephen Pitel (Back, From Left) Jeffrey Miller, Antoni Cimolino, Justice Ian Binnie, Justice Eileen Gillese, James Purkis (Far Right) Christopher Bentley, Andre Cormier

Prof. Stephen Pitel said,

There are great connections between law, literature, and drama. The common law is based on a strong narrative tradition and the courtroom is often compared to a theatre.  So pairing appellate advocacy and Shakespeare has tremendous potential.

Now I did manage to get some clips of the event, though the resolution is poor and I missed major parts of it.  But I’m working on a student budget here, and I’m still certain that the numerous references to Facebook, Twitter, legal aid certificates, and circumcision (I kid you not), will still leave you amused and entertained. Not only did this event reach its potential, it exceeded it by far.

And without further ado, here is the appeal of Shylock’s judgment, after some 411 years:

Shakespeare in Court: A Play with Appeal – Appellant’s submissions from Omar2 on Vimeo.

Shakespeare in Court: A Play with Appeal – Respondent’s submissions from Omar Ha-Redeye on Vimeo.

Oh, all right: I’m only sidling up to the matter of predicting the technology/internet future, a venture that would have foxed even the greatest classical soothsayers, surely. The current augur of the moment is Google Vice President of Global Ad Operations, John Herlihy, who, according to SiliconRepublic.com, told a conference recently that “In three years time, desktops will be irrelevant. In Japan, most research is done today on smart phones, not PCs.”

As of 9.30 GMT this morning, this was the top Twitter trending topic in the UK, according to The Independent. (Fortunately or not, it’s since been replaced by #everydayiwakeup.)

Far be it from me to doubt the wisdom of a Google exec about such things. Yet, if he means that laptops and netbooks will also be swept aside in favour of thumbing things, I’ll lodge a small demurrer now. Why, we haven’t even had the iPad wave yet.

As for me, it’s possible, I suppose, that having learned to think with nine digits instead of with a wrist and a right hand gripping a pen, I could learn to think with the two fat fingers as I search, research, and compose — but I’ll likely decline if it comes to that. At least that’s how I see my small part of the future. You?

A recent Out-Law.com tweet caught my eye with the headline YouTube threatened by changes to Digital Economy Bill. The article has some good links and background information, including:

Courts will have the power to block access to entire websites from the UK because of allegations of copyright infringement under an amendment to Government legislation that has been adopted by the House of Lords.

The amendment currently being debated in the Lords deals with injunctive powers to block content rather than the current practice where YouTube removes copyright infringing content when given notice by the copyright owner.

We haven’t talked about the Digital Economy Bill at Slaw, nor do we usually spend time discussing foreign legislation.

There are excellent resources from the UK Parliament – much like our LEGISinfo site – to give background information on the bill, track the progress, and of course, see all of the documentation and latest version of the bill.

The bill makes some very significant chamges to the Communications Act 2003. That act is intended: “to confer functions on the Office of Communications; to make provision about the regulation of the provision of electronic communications networks and services and of the use of the electro-magnetic spectrum; to make provision about the regulation of broadcasting and of the provision of television and radio services; to make provision about mergers involving newspaper and other media enterprises and, in that connection, to amend the Enterprise Act 2002; and for connected purposes.”

Considering the global impact of these changes to UK legislation, should they come to pass, we had best inform ourselves.

If you’re around Toronto on the morning of Tuesday, March 16, you might want to attend the Workshop on Media Suppression: Life and Livelihood that’s being presented by York University’s IP Osgoode and the Nathanson Centre on Transnational Human Rights, Crime and Security. Four panels of experts will address the following topics:

• Digital Rights Contracts
• The Thawing of Libel Chill
• The Role of Internet Giants in Totalitarian States
• Legal Recourse for the Torture, Kidnapping, and Murder of Journalists

The workshop is free of charge and is being held in Room W132 of the Schulich School of Business between 9 a.m. and 1 p.m. Further information is available online. RSVP requested.

And if you can’t get to the workshop but are interested in the topics, you might let IP Osgoode know, because they’ll be video recording the event and posting the link a few days later on their website. I’m sure they’d be happy to email you to tell you when the link is up.