Big data is a hot trending tech issue. Wikipedia defines big data as "a term applied to data sets whose size is beyond the ability of commonly used software tools to capture, manage, and process the data within a tolerable elapsed time. Big data sizes are a constantly moving target currently ranging from a few dozen terabytes to many petabytes of data in a single data set."

The initial issue with big data is the ability to actually work with massive data sets – how to store, search, and manipulate it. But the tools to do that are becoming more sophisticated, and attention is turning to how to take advantage of big data. This McKinsey report entitled Big data: The next frontier for innovation, competition, and productivity is a good summary of the possibilities. There is potential for increased profit margins for retailers, reduced costs for healthcare, product improvements and more.

This all sounds good. Consider for a moment though that big data means massive databases that include huge amounts of customer information. And the information that governments have on us is massive as well. It will be tempting to amass as much data (including personal information) as possible, as the more data is there, the more information that can be learned from it. That flies in the face of privacy principles that say one should only collect the smallest amount of personal information you need for the immediate purpose, and should not keep it for longer than you need it for that purpose.

It is possible to anonymize personal information to avoid the issue, but that is done on a sliding scale – a little anonymization makes it easy to recombine it with other information and figure out who the individuals are – a lot of anonymization makes the data less valuable.

Big data uses that determine generic things like trends and product features are one thing – but it can also be used for targeting individuals for things like advertising and medical treatment. Individuals may welcome or be horrified by that, depending on the use and personal viewpoints.

Another concern is the creeping (and creepy) trend towards industry and government big brother type uses.

It has been pointed out that big data needs to be complemented by "big judgment" . As this Harvard Business Review article entitled Good Data Won't Guarantee Good Decisions points out, "At this very moment, there’s an odds-on chance that someone in your organization is making a poor decision on the basis of information that was enormously expensive to collect." That sentiment may very well apply to poor decisions on the privacy aspects of big data as well.

Probably the most interesting thing happening in the BC legal world just now is the Justice Reform Initiative launched by the BC government back in early February. The review is chaired by Geoff Cowper, QC, of Fasken Martineau. The terms of reference for the initiative are ambitious. According to the government’s press release: “He [Geoff Cowper] will identify the top issues that are affecting the public’s access to timely justice and what can be done to ensure the efficiencies already underway have the desired impacts while respecting the independence of the judicial system.” The chief justices of the BC courts have taken a very firm stand on the issue of judicial independence; former Attorney General Geoff Plant also had some thoughts on this important issue.

Several other issues are also on the table: the Legal Services Society (that is, BC legal aid) will provide advice on efficiencies that can be achieved, and an outside review of British Columbia’s system for approval of prosecutions will also be conducted. (In BC, criminal charges are brought forward by Crown Counsel rather than the police.)

You can follow the work of the BC Justice Reform Initiative via the chair’s blog. A final report is due in July 2012.

Meanwhile, an international conference, developed by the Hague Institute for the Internationalisation of Law (HiiL) [Ed. note: headed by Slaw columnist Sam Muller], explicitly addressed some of these issues. Entitled “Innovating Justice Forum 2012: Towards basic justice care for everyone”, the conference was held earlier this April in the Netherlands. HiiL was formed in 2005 as a not-for-profit research and development institute for the justice sector. Their emphasis is on making justice work for both people and organizations, with a strong belief in “innovating justice”.

From the conference programme:

Everybody needs basic justice care: access to fair, workable solutions for problems that can become a threat to a person’s livelihood. Access to justice ensures secure, trustworthy and economically viable relationships: at home, at work, on the land, and within the community. The Innovating Justice Forum 2012 is the first attempt to assess how people’s basic justice needs are protected and what are the trends in delivery of legal services to meet these needs across the world.

Our own David Bilinsky, Practice Advisor at the Law Society of British Columbia, gave a keynote address on “The climate for innovation in the justice sector”. Again, from the conference programme: “Why is it that it is so difficult to bring fundamental change and innovation to the justice sector? The challenges for innovators in terms of funding, integrating innovations in the system, scaling up and many others. What is needed for a better innovation climate?”

HiiL has published draft recommendations and a report on world-wide trends in providing access to justice. Further reports and recommendations are planned.

Closer to home, a promising medical-legal project is underway here in BC. This new initiative is focused on Vancouver’s Downtown Eastside. A group with representatives from the Legal Services Society, CLEBC, UBC Faculty of Law, and Access ProBono is working in consultation with the Downtown Eastside community and an established medical community initiative known as RICHER. RICHER is an acronym for: Responsive, Intersectoral, Children’s Health, Education and Research; this group describes their work as follows:

This program is a community-based primary healthcare service specifically designed to meet the unique needs of children, youth, and families in Vancouver’s inner city neighbourhoods. The focus is on children who are particularly vulnerable because of their material and social circumstances as they are most likely to suffer the consequences of delayed development and poor health.

Our approach provides important links to specialized healthcare services in partnership with families and their community-based support networks.

The new BC initiative is just one example of a medical-legal partnership, in which lawyers are included as essential members of the healthcare team. Medical-legal partnerships are a growing phenomenon in North America. Through direct legal assistance, institutional and systemic policy change, MLPs address factors that have a direct impact on health, such as food and energy security, housing conditions, education, and personal safety. They recognize that legal problems are often linked to or the result of other issues. For example, close links between health issues and legal issues arise in the following situations, where families and those working to support them face a dilemma:

• parents who are homeless, unable to find suitable housing, or face eviction, where the only support offered by the formal system is the apprehension of their children;

• parents living in substandard housing who are told the housing condition (mold, standing water, lack of heating) underlies their child’s repeated hospitalizations for compromised respiratory status and risk being reported for neglect or eviction by their landlord if they complain.

If one follows through on what frequently happens in each of these scenarios, there is growing evidence of the short and long term health and medical costs of ineffective management. Preliminary research indicates that if a parent and children can be kept together in stable housing and the children supported through early childhood education, there is a direct correlation to significant savings in the health and justice sectors.

This medical-legal partnership movement increases our understanding of factors that affect the costs of the justice system and the importance of taking the broader view. If we consider the justice system in isolation, we may miss opportunities to provide the best and most cost-effective service from a systems and public policy perspective.

I’m hopeful that this good work underway both across the world and close to home can be brought to bear on the work of our BC Justice Review Initiative.

The Quebec Court of Appeal recently rendered a decision clarifying the restriction set out at section 128(1)(a) of the Act respecting the Barreau du Quebec ("Act"), which reads:

128. (1) The following acts, performed for others, shall be the exclusive prerogative of the practising advocate or solicitor:

(a) to give legal advice and consultations on legal matters; […]

According to this section and in order to ensure the protection of the public, certain acts are reserved for lawyers called and registered with the Bar. The illegal exercise of the legal profession reserved to lawyers constitutes a penal offence. Unless a lawyer, providing legal information is permissible, while providing legal advice is not.

In Charlebois c. Barreau du Québec, 2012 QCCA 788 (CanLII), the appellant (not a lawyer), president of the Association des syndicats de copropriété du Québec, an organization providing services to syndicates of co-owners, was alleged to have provided legal advice to an old friend, who was the vice-president of his own condominium association regarding the agenda and running of the condominium's general meeting via a series of emails. At first instance, the judge found that there was a reasonable doubt as to the appellant having committed the offence and as such, could not conclude that the appellant had breached the Act. The Superior Court of Quebec, on appeal, found the appellant guilty of the offence, concluding that he had provided more than just an enumeration of the law and thus had gone beyond the limits of legal information.

The Quebec Court of Appeal was therefore required to ask itself if the emails exchanged between the appellant and his friend constituted “legal advice and consultations on legal matters”, an expression not defined in the Act.

We have discussed on Slaw the mandatory disclosure of information from Facebook pages in civil litigation, and the disclosure of FB passwords to prospective employers. I do not believe that we have discussed the disclosure of information from FB in the course of a criminal investigation.

A German court has recently ordered disclosure of the content of private messages and pictures from a suspect’s FB pages. A write-up of the case appears in International Law Office.

Is this just another search warrant for a computer? Would courts where you are have any difficulty with an application for such a warrant? (There has been a lot of press in Ontario lately about a computer search being a search of a place not the search for a thing. The request has to be properly framed.)

The German court seems to have directed the order to Facebook itself – in Ireland, where FB controls its European operations, and then to California. The report makes it sound as if FB was not readily complying, though it’s not completely clear.

I think we have noted the US cases about whether law enforcement authorities can require someone to provide them with a decryption key for the person’s computer. Held so far: border crossing authorities can so compel; general police cannot. No US Supreme Court ruling yet. Is a password any different from a decryption key? Does it matter if law enforcement can do indirectly – get the material from the web host or social media company or cloud computing provider – what it may have trouble doing directly? Or is a warrant a complete answer to such concerns?

I attended an excellent session on collection development for law libraries at the Canadian Association of Law Libraries Conference last week. The session was titled "Collection Development in an Era of Shrinking Budgets". The program stated:

Aimed at those involved in collection development in all types of law libraries, this practical session will discuss strategies and best practices for coping with rising prices and shrinking budgets. Our two panelists will share their experiences in courthouse, private and academic law libraries. The session will then be opened up for discussion and comment by all attendees. Come prepared to share your good ideas!

Speakers
Janet Moss, Head Law Librarian, Gerard V. LaForest Law Library
Iain Sinclair, Knowledge Manager, Stewart McKelvey
Rhonda O'Neill, Assistant Director, Alberta Law Libraries

Moderator
Anne Bowers, Librarian, Northumberland Law Association Library

The panelists were engaging and the session was interesting, especially with the mix of approaches that came through from the different library types represented among th panelists. One feature of the session was a chance to share some ideas and suggestions in small groups. Thanks to Iain for providing the notes from the audience so that I could share them with Slawyers.

Collection development symposium – audience suggestions

• Continuous need for re-evaluating your collection, talking to your users and finding out their requirements.
• Resource sharing agreements and relationships. Look to work together with different library units. Divide up responsibility for different topics.
• Negotiate for the portion of the content you want (commentary/analysis).
• Work with the publishers on bundling of the electronic commentary on their sites with pricing and licensing that works for the users.
• Consortia and interlibrary loans.
• Visit vendor booths and give feedback. Request bound formats – talk to authors.
• Needs assessments – feedback from front-line librarians.
• Get your library community involved. Building of relationships and review of collection.
• Communicate and build trust with the vendors.
• Collaboration with other library communities.
• Collection usage statistics are key.
• Implementing rotational cancellation of loose-leaf services.

♫ I know you're waiting and you're so damn nervous
I know you're hoping that I could explain this
Look in my eyes
I will try and show you…♫

Lyrics, Music and recorded by Rains.

Two different articles hit my desk this morning and I thought they provided a sharp contrast into the divisions within the legal profession and ultimately, the future of the legal profession.

The first was from Kirk Makin writing for the Globe and Mail. His article, "Courts turn to Wired Justice in Push to Cut Costs" contained some interesting quotes. The article is about the use of Skype enabled testimony in court in an attempt to cut costs.

On one hand we have the forward-looking comments of Brian Gover:

“The legal system is going to be exposed to ridicule if we don’t move forward with innovative ways of taking evidence,” said Brian Gover, a veteran Toronto lawyer at Stockwoods LLP. “One of the great issues for us in a time of austerity is going to be cost control and delivering justice in an efficient way. Technology has provided an answer to the problem.”

On the other hand is the deeply held beliefs of such lawyers as Steven Benmore, who was involved in a case where Skype was allowed:

Steven Benmor, a lawyer who represents Ms. Paiva’s estranged husband, Michael Corpening, said the Skype arrangement approved by Judge Murray threatens the integrity of testimony.

“The very nature of the right to trial is to allow a judge to see, hear and experience a witness’s demeanour so as to assess not only the answers but ‘how’ they are delivered,” Mr. Benmor said in an interview. “If demeanour were not important, we would have trials by affidavits and paper records.”

As lawyers, we have deep divisions on the use of technology within the traditional court process. We have large groups that are against innovations that would 'tweak' the court process, fearing a negative effect on the outcome of the court process.

However, in my view this type of debate, while heartfelt, is equivalent to rearranging the deck chairs on the Titanic.

Here are the three most-consulted English-language cases on CanLII for the week of May 7 – 14.

♨ 1. Bruni v. Bruni 2010 ONSC 6568 [Second week at #1]

[1] Paging Dr. Freud. Paging Dr. Freud.

[2] This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment.

[3] In addition to the volatile issues of custody and access, this application raises a question as to whether grounds exist to set aside the separation agreement of the parties.

[4] Then follows a mash of issues . . . .

♨ 2. R v MacKenzie 2011 SKCA 64 [Leave to appeal to the SCC granted May 10]

[1] This is a “sniffer-dog” case under s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”), which sets out the right to be secure against unreasonable search and seizure. The issue in this appeal is whether peace officers violated that right by conducting a “sniff-search” of the respondent’s vehicle.

♨ 3. United Food and Commercial Workers, Local 401 v Alberta (Attorney General) 2012 ABCA 130

[1] The respondent union videotaped people crossing its picket line, and suggested it might post those recordings on the Internet. The issue on this appeal is whether the union has a constitutionally protected right to collect images of persons crossing the picket line, and therefore whether an order by the respondent Commissioner preventing it from doing so should be set aside.

The most-consulted French-language decision was Rochon c. R. 2011 QCCA 2012 [Leave to appeal to the SCC was dismissed on May 10]

[7] L'appelante est la mère d'Olivier Rochon, auquel elle avait confié sa propriété en son absence.

[8] Il n'est pas inutile de mentionner qu'Olivier Rochon a été trouvé coupable d'accusations relatives à une autre plantation de marijuana que celle qui nous concerne.

[9] Revenant en camping sur sa propriété à l'été, l'appelante constate la présence d'une culture de marijuana sur ses terres.

[10] L'appelante témoigne avoir demandé à son fils à deux reprises d'«enlever ça ». Elle ajoute ne pas avoir voulu le dénoncer aux autorités.

Prominent in-house lawyers have warned Australian law firms that legal process outsourcing is no passing fad. Speaking at the Australian Corporate Lawyers Conference, Telstra general counsel Sue Laver said LPO in Australia is the “next wave” in legal services and as clients, Australian corporates needed to be actively encouraging firms to take action.

Malisons’ Stephen Jaques announced last month that it would be offering LPO to all clients where appropriate, following a trial run on a discovery project. According to Sue Laver, as a result of the quality of work and cost savings on the discovery project Telstra would now look to send more commercial work to the LPO. “We got better results than we would have if we had used paralegals in a law firm,” said Laver. “Cost is a factor, but quality is what really impressed us, there is more rigour in their processes.”

Some law firms have been reluctant to investigate working with LPOs according to AMP general counsel Brian Salter. “We have loads of rote work. We went to law firms and spoke to them about LPOs, we put it to them that we would all benefit from it, and they were reluctant,” he said.

Some firms and legal commentators have criticised the use of LPOs, claiming they cost local jobs. According to George Toussis, senior legal counsel Hewlett-Packard, when the company switched to using an LPO for repetitive legal work not one of its 600 lawyers globally were retrenched.

According to a paper by Deloitte LLP, titled “The Resurgence of Corporate Legal Process Outsourcing: Leveraging a new and improved legal support business model” [PDF], in an economy where controlling costs is paramount, LPO may seem an attractive option for reducing rising corporate legal costs. However, many executives have historically had concerns regarding LPO’s feasibility and effectiveness. The paper presents a view that the LPO marketplace has matured to the point where concerns about LPO can be put to rest.

The paper explores the evolution of LPO since its inception, describes a strategy for adopting an LPO business model, and summarizes key considerations in evaluating LPO options. Deloitte believes the time is ripe for companies to pursue the potential benefits of using LPO as part of a balanced insourced and outsourced legal support business model: cost savings, improved service levels, and a streamlined in-house legal capability focused on higher-value activities.

While significant in clarifying the defence of necessity in criminal law, Regina v. Dudley and Stephens has had an even larger cultural influence.

That's the case of the Mignonette, which capsized on its way to Australia and whose shipwrecked crew faced tough choices in an under-provisioned lifeboat.

The latest NYT Best Seller list features a new book The Lifeboat by Charlotte Rogan – the author tells that her inspiration came from her husband's criminal law text.

What hooked me was stumbling on my husband's old criminal law texts and reading about the cases of sailors who survived shipwrecks and then were put on trial. I've always been interested in political philosophy and the idea that people create society out of a state of nature. I was inspired by Hobbs and Locke and Rousseau — and by the idea that people make rules and give up certain freedoms for security. So in the boat I had people in a state of nature. I had people facing these extreme situations and explored how their miniature society evolved.

The fact that Rogan sets her book just before the Great War suggests that she might have noticed a recent centenary of a notable shipwreck. If you haven't seen the computer animation of The Titanic, Titanic, you're in for a treat.

Here is the NYT interview with the author NYT Podcast

On Friday online legal services provider LegalZoom filed for a $120m Initial Public Offering. For those unfamiliar with LegalZoom (likely only our Canadian readers, shielded from the ubiquitous LegalZoom advertising in the US), Richard Granat has authored an excellent series of posts on his eLawyering Redux blog.

As with Facebook's S-1 filing from a few months ago, LegalZoom's S-1 filing offers up a wealth of information on the company's progress to date:

• LegalZoom has served approximately two million customers over the last 10 years;
• In 2011 consumers placed 490,000 orders on the site;
• 2011 revenues were $156m, up 50% from 2009;
• The company turned a profit in 2011, posting a $12m profit (as compared to a $4m loss in 2010);
• In 2011 the company spent $42m, or 27% of its revenues, on sales and marketing;
• The company employs nearly 500 people;
• The company has developed its own tools for online interviews, document automation, CRM and fulfillment with an in-house technical team of approximately 60 staff;
• More than 20 percent of new California limited liability companies were created using LegalZoom;
• By 2011Q4 nearly 25% of the company's revenues were derived from subscription services as opposed to transactional fees. LegalZoom's subscription services "consist primarily of our legal plans, registered agent services and unlimited access to our forms library, and can range in duration from 30 days to two years;"
• The company aims to shift its revenue base from a transaction-based model to a mix of transactions and subscriptions;

The Risk Factors section of the company's S-1 Filing outlines the wide range of risks the company is exposed to; as much as LegalZoom is aiming to disrupt the legal services market, there is no shortage of elements both within and outside of the company's control that could have a significant and negative impact on the company's growth objectives. Chief among those risks is the company being accused of unauthorized practice of law (UPL):

Our business model includes the provision of services that represent an alternative to traditional legal services, which subjects us to allegations of UPL. UPL generally refers to an entity or person giving legal advice who is not licensed to practice law. However, laws and regulations defining UPL, and the governing bodies that enforce UPL rules, differ among the various jurisdictions in which we operate. We are unable to acquire a license to practice law in the United States, or employ licensed attorneys to provide legal advice to our customers, because we do not meet the regulatory requirement of being exclusively owned by licensed attorneys. We are also subject to laws and regulations that govern business transactions between attorneys and non-attorneys, including those related to the ethics of attorney fee-splitting and the corporate practice of law.

The company is explicit in its desire to disrupt the existing legal services delivery model:

Despite the enormous amount spent on legal services, we believe that small businesses and consumers have not been adequately served by the options traditionally available to them. Every year, small businesses enter into legal contracts and become entangled in disputes, many of which require legal services to address. Consumers experience important life events that affect their families, including the birth of a child, marriage, divorce and death, all of which can also give rise to diverse needs for legal services. Small businesses and consumers often do not understand their legal needs or know where to start looking for an attorney. The high and unpredictable cost of traditional legal services also presents challenges.

Much has been written about LegalZoom and the impact it will have on lawyers – especially solos and small firms – and with an extra $120m in the bank the company will be able to accelerate its efforts to reshape the legal services landscape.

Ideally, your office should have clearly established internal controls for handling and documenting all types of financial transactions. These internal controls are really just policies and procedures that direct what steps should be taken when various financial transactions occur. Although a lack of internal controls does not necessarily constitute a breach of the Rules of Professional Conduct or By-laws, you may consider implementing internal controls to assist your efforts to comply.

The following are some suggested internal controls you may consider implementing
at your office:

Cheque requisitions

When dealing with cheque requisitions for both your general and trust accounts, consider the following:

• all cheque requests are accompanied by a signed cheque requisition evidencing approval;
• only certain designated lawyers may authorize trust account payments;
• only certain designated individuals may authorize general account payments;
• firm personnel responsible for preparing cheques are instructed not to prepare cheques unless the requisition includes a signature of approval;
• supporting documentation (such as an original invoice, reporting letter, statement of receipts or disbursements) accompanies the cheque requisition,where possible;
• original copy of the invoice is stamped paid (to prevent an individual from using an invoice more than once to obtain funds); and photocopies of invoices are not generally accepted as support for cheque requisitions.

I got the heads-up from a Brazilian law librarian colleague about a significant opinion published on April 12, 2012. I decided to use the opinion for a kind of case study in how to find cases in English translation. The Supreme Court of Brazil ruled that pregnant women carrying fetuses with anencephaly can legally abort them. The Court’s press releases describing its votes and reasoning are here and here. They’re in Portuguese, which I can make out since I know Spanish, but Google Translate helps give the gist in English. Also, because abortion is a hot issue worldwide, there are a lot of English-language news stories about the case, and there’s already a Wikipedia article! From the Center for Reproductive Rights, the Supreme Court’s ruling “amends Brazil’s current law— which criminalizes abortion completely, with only narrow exceptions in cases of rape or to save a woman’s life—to allow abortion in cases where a fetus has been diagnosed with anencephaly.” This is a major comparative legal development, which raises moral and religious questions. And controversy. What are the chances of finding the full text of this case in English translation?

With a very recent case, the chances of finding it in translation are slim to none. The odds improve the older the case gets, but there is no guarantee. It’s usually possible to obtain English summaries from news sources and blog posts. Extensive, more detailed legal analyses in English take longer, sometimes years. For example, there was a 2008 article (PDF) describing an earlier anencephalic abortion proceeding before the Brazilian Supreme Court. The decisions themselves may never be translated into English. In this blog post, I discuss tried-and-true techniques and tools for hunting down elusive translations.

The first step is to go directly to the source. Sometimes courts have selected decisions in English translation or will know who has or will translate the decision and when. In this case, the Supremo Tribunal Federal (STF) website has an English-language search interface with links (under “Jurisprudence”) to summaries of selected decisions in English translation. Unfortunately, the latest case summary is 2007. The SFT also has links to case abstracts in English, French, and Spanish from mostly 1988 to 2006 on its “Jurisprudência Traduzida” page. So, no joy for my 2012 case.

The next step is to find the case in the original Portuguese, or more information about it if I haven’t yet. To begin to communicate with the Court or anyone about getting the case in English translation, I need exact information. It’s important to get the case name (if available), case number (ADPF 54), and the date of decision. From the Supreme Federal Court of Brazil’s press releases, I have all the information I need. And I can use Google Translate or vLex (subscription database which auto-translates decisions) to get a “good enough” English translation of the decision. I can also use human, professional legal translators. I can also ask the Court when a summary or full translation will be available. I can try contacting the lawyers and organizations involved in the case. Or I can wait.

As time passes, the Brazilian Anencephalic Abortion Case may show up in English translation in the Council of Europe Venice Commission’s CODICES database in summary or full text (while European constitutional courts are its strength, CODICES also contains decisions from Latin American courts). The Library of Congress’ GLIN (Global Legal Information Network) may have an English summary of it. Excerpts or full texts of the case in English translation might be published in databases, casebooks, treatises, and journal articles. Many possibilities!

I try to make sure that my posts about technology have some sensible bearing on law in one way or another. But occasionally I come across a development that strikes me as worth sharing whether or not I can see anything peculiarly legal about it, and Touché is one such.

Disney Research (who knew the Mouse did science?) has developed Touché, a technique for converting pretty much any surface into a "touch screen" that is able to control a computer — and not merely a binary "finger / no finger" system, but one able to recognize hands, elbows, four fingers, etc. as different stimuli. An article in The Week will tell you all about it, and the video on Gizmodo will demonstrate it.

As you'll see, your desktop, doorknobs — even your own body — can become sites for controlling devices, whether computers per se or chips that accomplish tasks other than browsing or office work. If these report are solid and the technology scales (and survives any patent wars), it could take us much further down the road that Steve Jobs started us on, the road on which the mouse goes the way of the fountain pen and control is gestural.

At yesterday's lawTechCamp, Garry Wise, Bob Tarantino, Mitch Kowalski and I hosted a panel session on law, ethics and technology, where we facilitated a discussion on issues ranging from the cloud and confidentiality to the ethics of purchasing Twitter followers. One of the most enthusiastic discussions centered around whether we should have cameras in the courtroom.

Given that the audience was comprised of both lawyers and members of the public, including several media members, the conflicting principles at play over the issue of cameras in the courtroom were carefully teased out.

The call for the cameras emerge from the open court principle, described by the Supreme Court of Canada in Vancouver Sun (Re) dealing with the Air India Flight 182 terrorism trials,

I've just returned from the 2012 CALL/ACBD Conference where I always enjoy engaging with my colleagues from across the country and further afield, renewing old acquaintances and making new friends. This year's conference marked the kick-off of CALL/ACBD's 50th Anniversary celebrations as part of that celebration we were encouraged to share our reminiscences and I would like to share one of mine here.

My first CALL/ACBD conference was in 2002 in Victoria. My memories from that conference include being somewhat awed by the conference itself and impressed with my new-found colleagues but what rings more than that was the announcement that was made in the middle of that conference that shifted the face of legal publishing in this country. In the words of CALL/ACBD Honoured Member Denis LeMay from v 27:3 of Canadian Law Libraries (as it was then):

Quicklaw makes an announcement! The moment was grave and solemn when Professor Lawford in person informed us that he was forced to "sell the family farm." This is a crucial move in the history of Canadian legal publishing. Lexis/Nexis was chosen to form a new partnership where both parties are firmly committed to offer the best of their culture, knowledge and technology. Professor Lawford noted common views in the philosophy of both enterprises. Quicklaw's loyalty, generosity and excellence were recognized by a standing ovation – a testimony to the place that they will always have in the hearts of CALL/ACBD members.

My memories from that announcement include a murmur in the room and the feeling that something had happened to a member of the family, a figurative bombshell had been dropped in the room. I was early in my career at that point but I understood the significance of this event but perhaps not all of the implications that went along with it. Given all the change that has occurred in the past ten years it is safe to say that this announcement was a hinge-point in how we think about Canadian Legal Information. In many ways it is difficult to believe that it was ten years ago. 2002 was CALL/ACBD's 40th anniversary, I wonder what might be in store for the next ten years and the forty after that; regardless, it would take a significant event to top the announcement that was made in Victoria in 2002.

Here's a smart little website that finds free eBooks for your Kindle on the Amazon site. It searches the best sellers and updates them regularly. Plus, the creator of the site includes a nice article on how to find and use free Amazon eBooks, even if you do not own a Kindle. via LifeHacker

An Oakville lawyer advised us of a new scam that appears to be a brazen attempt to gain access to a law firm's computers.

Someone identifying himself as Mason Saunders called the firm this morning and asked to speak directly to the lawyer by name. He indicated to the lawyer that he was calling further to a discussion with a clerk at the firm 3 weeks ago. The caller referenced the clerk by name and indicated he had been authorized to create a website for the firm. The caller then asked if the clerk had spoken to the lawyer. "No" was the reply. The lawyer asked for the web address to look at the new website. The caller replied that there were privacy issues, but that access could be arranged by creating "ID numbers" for the lawyer. This was was clearly a ploy to have the lawyer access an external website that would download malware of some type, presumably to allow external access to the firm's computers for identity or information theft. The purported Saunders appeared to be calling from an Florida area code (561).

Ontario lawyers and firm staff are warned to watch out for this or similar attempts to gain access to law firm systems. Never disclose computer login names or passwords over the phone or visit a strange website at the request of someone calling your firm, even if they purport to be from an entity familiar to you (e.g., the bank with the firm's trust accounts).

If you have been targeted by this or as similar frauds, please forward details, including any emails or other documents that you have received to fraudinfo@lawpro.ca.

There's not a lot to say about this week's fillip: it's to see. So if you're reading this as email, fire up your browser and have a boo. Neonflames invites you to draw spectral shapes and lines, modifying colours, intensities, "noise," fuzz, and other mysterious things. The net effect — of my trials, at least — is galaxies and glorious sweeps of stellar dust. I can see some nifty computer wallpaper coming out of this.

Be sure to hold down your mouse button for a while in order to see how intensity develops. Play with the controls, and try out the options in the drop-down menu just above them.

Enjoy.

Click on image to enlarge.

Any Smartphone in a Storm

There is no perfect smartphone for lawyers. In fact, the most important part of the smart phone is probably the phone part, since it enables you to keep in contact with your clients, your office, and other parts of your life. Once you've established that baseline – your phone is a phone – then it becomes a matter of very personal choices. It's not about who has market share, it's all about you. This has always been true for solos and smaller firms, but choice is even emerging at larger law firms. Most of you already have a smartphone but you may be thinking of making a change.

Can You Hear Me?

There are some mobile carriers whose network won't reach where you practice. If they are exclusive providers of the smart phone you want to use, you may find that the simplest baseline isn't met. I spoke to a bar association that has a large number of rural members. At the time, there were very few Apple iPhone users for the basic reason that the wireless provider had poor coverage. It had nothing to do with the phone itself, but lawyers in that state were talking far more about Android phones and the competing wireless providers because of it.

Get the One that Makes Julienne Fries

There is a lot of hype about what you can do with a smartphone. No, hype isn't fair. There is a lot of information on the remarkable things that are now possible. What is interesting is that lawyers are, for the most part, not using their smartphones much differently from how they have for the past decade, before the advent of apps. Apps stores aside, lawyers use smartphones for phone calls, e-mail, contacts and calendaring. The 2011 ABA Legal Technology Survey Report found that 93.1% of lawyers with smartphones used them for e-mail, while 83.1% made telephone calls. After calendar (80.1%) and contact (76.2%) management, Internet access brought up the top 5 at 55.1%.

It's interesting to think that e-mail may be more common on smartphones than talking. It's not surprising, though. It's as common to see "Sent from my iPhone" as a 4 line e-mail disclaimer nowadays. We often picture lawyers, bent in apparent prayer, typing madly on miniature keyboards. They are, however, sticking with the basics.

The Apple Slices are Better for You

If you want to stretch beyond the basic functionality though, one phone does stand out. Legal publishers and technology providers have focused almost exclusively on the iPhone and iPad in delivering their apps. You can grab apps for the iPhone from LexisNexis, Westlaw, and Fastcase, among others.

The apps will most likely define your phone choice. Blackberry, despite its other problems, appears to have the < a href="appworld.blackberry.com/">weakest app offering for lawyers. Android is roughly the same, although some of the law-specific apps are now crossing over, although they appear frequently be e-books rather than apps. Both of them, like Apple, offer large numbers of non-lawyer apps, many of which would be useful, productive, or just plain fun to use. But the iOS products have the edge in law-specific tools.

In the Gutter, Looking Up

Lawyers are often lumped with a conservative attitude towards technology. I'm not so sure, and smartphone adoption – nearly 88% of respondents to the ABA survey used one – and usage seem to be in sensible ranges even if they do not perhaps meet the aspirations of the more gung ho adopters.

There are practical limitations on what any given lawyer wants to do with a smartphone. This personalization is perhaps the most important aspect, and why there's no reason to feel app envy or backwardsness. For some, it is a laptop replacement and they do time and billing, expense management, word processing and spreadsheet work on it. Some use their devices for presentations or litigation support, although that seems to now be shifting to the larger tablets powered by the same software. For many, it seems, it is really just a powerful communications tool.

That's the beauty of the smartphone, though, and, more importantly, the extent of the app ecosystem that supports it. Lawyers also have their own smartphone oracles, whether it's iPhoneJD or the Droid Lawyer. Next time you are thinking about switching your smartphone, you may want to start with the apps first, and look at the specific phones second. The less you need to rely on law-specific apps, the more choice you will have. But whatever your choice, they'll all make phone calls and play Angry Birds.

This is a post in a series appearing each Friday, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

Luminous Landscape – Photography in Space – Alan Poindexter – A series of photos by the commander of the penultimate mission of space shuttle Discovery. In addition to the always moving shots of objects in space, there are a lot of interesting shots of the crew inside, being normal without gravity.

NYTimes – How McDonald’s Came Back Bigger Than Ever – Keith O'Brien – And though there weren't photos of astronauts eating Big Macs, there might have been. Nothing nutritionists or environmentalists can say or do – - or a failed attempt to game Twitter — can hold back the advance of that clown's biz. Lovin' it?

Rdio – Radio Time Machine – The online music service offers up nostalgia hooks to catch your ears. Snippets of pop music are arrayed along a timeline from 2012 to 1940, letting you slide the dial to the year of your choice. Got to say it hauled up some memories and the odd wince. I mean, Bobby Vinton?

Ideas Illustrated – Visualizing English Word Origins – mkinde – Snippets of text, now, analysed and coloured according to their etymologies. Interesting how pink (Old English) all the selections turn out to be. Law is pretty parti-coloured though, but medicine is a real riot.

BBC – An 86-year-old, real-life Robinson Crusoe – Simon Reeve – Speaking of old English, this octogenarian Yorkshireman bought himself the island of Moyenne in the Seychelles, where he has lived alone for decades in the company of 120 giant tortoises, which he breeds and fosters. No internet, though. Just turtles, all the way down.

Patrick Stevenson Keating – On Our Way to the Impossible – Patrick Stevenson Keating – Meanwhile, another Englishman built himself a particle accelerator in two weeks from "cheap, common components" — to help us see the connection between physics and everyday life. Clicking on the photos takes you through a slideshow of the object.

USGS Water Science Photo Gallery – All of Earth's Water in a Single Sphere – It's a little shocking to see how little water there is on the planet. We imagine the oceans to be more massive than in fact they are. And let's not even talk about fresh water.

Visual Thesaurus Word Routes – Tracking Down the Roots of a "Super" Word – Ben Zimmer – Supercalifragilisticexpialidocious is the word. Seems it's not so clear who actually made up that agglomeration. This trip down nonce-word lane was prompted by the recent death of Robert Sherman, composer of the songs for Mary Poppins.

Vimeo – The Hipster Hunt – Julie Percha – We're encouraged to turn our scorn on them (no longer hep to be hip), but who exactly are these egregious folk? This film tracks a French immigrant's attempt to answer that question. Seems it has something to do with shoes.

The Millions – The Poetry of Mental Unhealth: Philip Larkin – Stephen Akey – A discussion of this difficult man's not so difficult poetry. A money quote from the analysis: "Readers have a perfect right to regard Philip Larkin, as I do not, as a complete shit. But if they consider his personal failings indistinguishable from his poetry, I think the loss is theirs."

The 2012 Hugh Lawford Award for Excellence in Legal Publishing was announced earlier this week at the annual conference of the Canadian Association of Law Libraries in Toronto.

This year's Award goes to JuriBistro UNIK, the global search engine on the website of CAIJ, the network of courthouse libraries in Quebec.

With this single interface, one can simultaneously search Quebec Bar Association continuing education materials, the CAIJ catalogue, the full text of Quebec and federal caselaw and legislation, the full text of secondary literature from publisher Wilson & Lafleur, and the TOPO knowledgebase of answers by CAIJ researchers to more than 3000 questions from lawyers.

The Award honours a publisher (whether for-profit or not-for profit, corporate or non-corporate) that has demonstrated excellence by publishing a work, series, website or e-product that makes a significant contribution to legal research and scholarship.

Slaw.ca won the award in 2009.

Members of the Award Selection Committee were:

• Justice Eric (Rick) Libman, Ontario Court of Justice
• John Davis, Professor Emeritus, Osgoode Hall Law School
• Michael Decore, Manager of Information Resources and Access, Alberta Law Libraries
• George Tsiakos, Library Manager, Bull, Houser, Tupper, Vancouver

The 2012 Committee was chaired by CALL Past President, Rosalie Fox, who runs the library and information management branch at the Supreme Court of Canada.

The award, established by CALL in 1999, was renamed to honour Hugh Lawford (1933-2009), Professor of Law at Queens’ University and the founder of Quicklaw.

A Ministry of Justice press release dated this Monday announced that British Columbia will become the first province to institute a system of online dispute resolution. Bill 44 — 2012, the Civil Resolution Tribunal Act, creates a tribunal with jurisdiction and powers very much the same as those of the small claims court but mandated to:

2 (1) . . . provide dispute resolution services in relation to matters that are within its authority, in a manner that
(a) is accessible, speedy, economical, informal and flexible,
(b) applies principles of law and fairness, and recognizes any relationships between parties to a dispute that will likely continue after the tribunal proceeding is concluded,
(c) uses electronic communication tools to facilitate resolution of disputes brought to the tribunal, and
(d) accommodates, so far as the tribunal considers reasonably practicable, the diversity of circumstances of the persons using the services of the tribunal.

Both parties must attorn to the jurisdiction of the tribunal for it to become seized of the case, except where some disputes with strata (a.k.a. condominium) corporations are concerned, in which case the corporations may be required to submit to the jurisdiction of the tribunal.

As yet the bill has only had first reading.

The backgrounder accompanying the press release explains:

· The service would use proven online technologies and be voluntary, except for strata corporations, which could be compelled to participate for certain strata disputes. Once online dispute resolution is started, ongoing participation would be mandatory until a voluntary or binding settlement was reached.
· The service would have four stages, with participants progressing to the next stage only if they were unable to reach agreement:

o The first phase would be an interactive dispute resolution guide, with information, tips and templates to help the parties reach a settlement.
o Stage two would be party-to-party negotiations, using online tools to make contact and exchange information. The tribunal would monitor and intervene in the discussions if necessary.
o Stage three would involve a case manager, who would contact the parties by phone or online to discuss the issues and attempt a facilitated settlement.
o If that failed, the final stage would be a tribunal hearing. A tribunal member would discuss the issues with the parties online, by phone, videoconference or occasionally in person and give a binding decision on the dispute.

· Tribunal members would be subject experts in the disputes they hear and be selected based on merit. Members would be appointed by cabinet.
· Several Australian states have mandatory civil administrative tribunals for small claims.
· Alternatives to online resolution, such as telephone, mail and even in-person hearings, would be available to people unable to access the online tools. British Columbians would still have the alternative of going to court.

I know that fellow Slawyer, Dave Bilinsky, is an expert in ODR, so I'm keen to hear what he thinks of this initiative and, particularly, how he sees IT being integrated into the process. I'm also chuffed — thank you, B.C. — because I'm talking a bit at LawTechCamp this coming Saturday about law and technology, with ODR as a topic; this will make it nice and pertinent.

If a lawyer is caught in a Canadian forest, and their phone battery dies leaving them without e-mail and phone access, are they still a lawyer? We don't need to contemplate this technologically-modified philosophical question any further, because soon you can power your cell phone with a camp fire.

You can now charge your phone by burning simple wood from said fire using a new product called the BioLite CampStove. You're also being environmental by using this product, because it only takes excess heat from the stove to convert into electricity.

The worst part is that clients will no longer buy the excuse that you're going up to your cottage and can't be reached for the weekend. Don't be too surprised if your quarterly bonus from the managing partner comes in the form of a six-pack and a BioLite CampStove for the road.

Family camping trips can now be expected to be accompanied by glowing screens around the marshmallow roast. Angry Birds will chirp in tents throughout the night. But as Colbert notes, at least there's an app for scaring bears away.

The Pew Internet & American Life Project has come up with some wonderful numbers on our digital habits over the years. A new report titled The rise of e-reading, released on April 4th, is just such an example, and will likely be of interest to many of us here at Slaw. Some of the soundbites included:

• "One-fifth of American adults (21%) report that they have read an e-book in the past year" — up from 17% in mid-December;
• "Readers of e-books stand out in almost every way from other kinds of readers."
• "They are relatively avid readers of books in all formats: 88% of those who read e-books in the past 12 months also read printed books."
• ^"They read more books. "
• "They read more frequently for a host of reasons: for pleasure, for research, for current events, and for work or school."
• "They are also more likely than others to have bought their most recent book, rather than borrowed it"
• "They are more likely than others to say they prefer to purchase books in general, often starting their search online."
• "A majority of print readers (54%) and readers of e-books (61%) prefer to purchase their own copies; while "just one in three audiobook listeners (32%) prefer to purchase audiobooks"

The metrics with respect to digital reading habits are useful, at least for gaining a better understanding of our shifting preferences. More interesting, however, was the perception of e-book sharing; with the report showing most users thought paper was "easier to share with other people". See this accompanying graphic:

I find it hard to believe that those numbers won't flip-flop over the next 12-18 months; especially as both e-book sharing becomes easier, and various public and private e-lending programs become more widely publicized.

But even with those aspects coming into play, "user education" seems to be an important factor going forward. For libraries and organizations looking to share e-book resources, the Pew numbers indicate that users will not only need to understand "how to" borrow; but also be sold on the utility of lending over buying.

On the 20th anniversary of the deadly Westray explosion that killed 26 miners in Nova Scotia, the Canadian Labour Congress (CLC) has released a guide for investigating corporate criminal negligence in the event of a serious injury or fatality in a workplace.

Parliament passed legislation (Bill C-45) in 2004 holding employers criminally liable if they willfully fail to protect the lives and safety of their workers. Briefly stated, sections 22.1, 217.1 and 219 of the Criminal Code imposes 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.

The CLC guide titled Death and Injury at Work: A Criminal Code Offence was written by two University of Ottawa law students based on research and advice from police officers, prosecutors, lawyers and worker health and safety representatives.

According to the CLC, many Canadians have died at work since the law was passed; however, very few of these deaths have been investigated by police as possible charges. So far there have only been six charges laid. In two cases, criminal charges were subsequently withdrawn and replaced by OHS charges; one case ended in a plea, one convicted at trial; one charge was stayed and one charge is pending. In addition, there is no case law that directly addresses the application of the law.

Hence, in their opinion, the guide provides practical information to police about how they can do that.

I don't know how willing the police force will be to use the guide, but it is an interesting document worth reading.

The Ontario Court of Appeal recently confirmed that when an employee was terminated for stealing from his employer, he was still entitled to his annual bonus because it was clearly an integral part of his contract, even if he had breached his fiduciary duty.

Facts of the case

An executive at a development firm misappropriated the employer’s labour, materials and funds to renovate his home. When the employer discovered the wrongdoing, the employer terminated the employee for cause and subsequently sued the executive for damages for conversion, breach of employment contract, unjust enrichment and breach of fiduciary duty. The employee counterclaimed in respect of his bonuses for 2007 and 2008, which the employer did not think it had to pay the employee after what happened.

The parties ultimately submitted the dispute to arbitration.

At arbitration, the employee was found to owe the company a fiduciary duty given that he was an officer of the company and one of the few trusted individuals there.

The arbitrator awarded the employer damages totalling $546,452 representing:

• $315,452 in respect of the misappropriated labour, materials and funds
• $231,000 to compensate for the delay to one of the employer’s legitimate projects occasioned by the executive’s diversion of resources and attention to his home renovations

However, the arbitrator found the executive was still entitled to his annual bonus equal to 30 percent of the employer’s profits after overhead because it made up an integral part of his employment contract from the very first day he joined the firm. Hence, the arbitrator awarded the employee $364,661.33 to satisfy his unpaid bonuses for 2007 and 2008.

The employer appealed to the Ontario Superior Court of Justice.

It’s easy and sometimes entertaining to note the negative or bizarre aspects of the major international law publishers but ultimately it is more interesting to identify areas of achievement. Far from the only one, but one such example is the work and evolution of what is now Bloomsbury Professional, based in the UK but increasingly recognisable around the world.

For me at least, it’s hard not to admire the business and the people involved in it, though I have to admit to a bias, though not an interest, in its favour. I consider a number of the people in the business to be friends and/or former colleagues and some of them I have selected, employed and promoted in other places, in recognition of their obvious worth. I’m proud to note that I have never seen any intelligent reason to remove any of them from their posts as to do so would clearly have been detrimental to the businesses for which they worked. It is pleasing to see Bloomsbury Professional as the current home for such a collection of talent and commitment.

Bloomsbury Professional is a relatively new law and tax publisher, until recently known as Tottel Publishing. This itself was not so long ago a phoenix from the ashes of a larger body of publishing assets thought at the time to be surplus to requirement at Lexis Nexis UK and sold to forward-looking senior managers who established the new business. Tottel grew and flourished for a few years until it was time for a trade sale, when Bloomsbury Publishing saw the benefits of investing in professional, academic and subscription-based markets.

One suspects that the investment decision was not a foregone conclusion as it had not been the first time that Bloomsbury had sought to enter the market. Indeed, Chancery Law Publishing had been set up in 1990 with its financial backing. Chancery Law did not flourish, despite the acknowledged quality of much of its output and in 1992 it was sold to Wiley. Nor did it achieve success there, its assets finally being sold on. No doubt it is a tribute to the Tottel management and staff that Bloomsbury was able to perceive sufficient difference to envisage that the new acquisition would not go the same way as the earlier investment. Nor, I’m sure, would the parent company believe that it had or has any wizard’s wand to wave over its children to guarantee success.

Hardly great wisdom is needed to understand, to some extent at least, why Bloomsbury Professional looks like a great publishing business. After all, it got off to a racing start with some astonishing assets from Lexis Nexis, among them an especially strong tax portfolio which, subsequently evolved, is making a huge competitive impression in the market. In fact, they have recently dislodged CCH as the chosen supplier of one of the key tax books, as a member benefit, to all the members of the UK’s Association of Taxation Technicians. Additionally, there are many distinguished ex-Lexis Nexis titles such as, randomly selected, Mediators on Mediation: leading mediator perspectives on the practice of commercial mediation, edited by Chris Newmark and Anthony Monaghan, Mediator Skills and Techniques: Triangle of Influence by Laurence Boulle and Miryana Nesic, Fransman’s British Nationality Law and Clinical Negligence by Charles Lewis. In truth, the list is extremely long and embraces, additionally, key Irish and Scottish titles. I believe that plans are now afoot to bring to fruition the results of its strategic planning for ebooks.

As an observer of Bloomsbury Professional and its competitors, one does not see or need to see genius in operation. Indeed they quite modestly refer to themselves as “a traditional, but cutting-edge publisher of high quality books and information services for lawyers, accountants and business professionals”. Rather, it is easier to identify intelligence, sound judgement, consistency, commitment and commercial attitude as critical features. Every new decision does not have to be explosive in character but instead indicative of an understanding of and empathy with markets, both following and directing market evolution.

In fact, of their recently launched online tax law service, www.bloomsburytax.com, I commented in an article, “What makes the new service worth noting is not rocket science technology or really cutting-edge functionality but price and simplicity, combined with an unashamed resemblance to the book idiom in its presentation – a smart move, it might be suggested, in an e-book era”. It was of the service in question that a most distinguished Canadian lawyer commented to me, upon learning about it “this is like an early Christmas present”. For their efforts, they were nominated for the prizes of Ingram Digital Publishing Award and Academic and Professional Publisher of the Year in the Independent Publishers Guild Independent Publishing Awards 2012, with Hart Publishing being similarly and deservedly recognised.

Modesty is refreshing to me in an era of grand boasts usually followed by never admitted failure. This extends to ways of doing business, such as accepting that one cannot do everything well by oneself and sometimes there is a need for partnership and joint ventures to achieve best results. Indeed, very early in its existence, Tottel was happy to partner with CCH UK in electronic content licensing, in order to achieve outcomes that would have been difficult alone. That arrangement has since some to an end. Now, however, in a dynamic arrangement, they partner with another legal publishing entrepreneur, Practical Law Company, to provide content online to PLC customers.

Another partnership, this time in relation to UK and International accounting and auditing content, has recently been established with PricewaterhouseCoopers, the PWC arrangement having previously been with CCH UK. No doubt, the desire and ability to make such deals will help establish Bloomsbury Professional more strongly, additionally in the accounting publishing market, as well as in law and tax. To achieve visibility and effectiveness at these levels would, I am certain, be difficult without a particular and open attitude of mind.

Rewards come with effort and it is not surprising that in 2011 Bloomsbury Professional won the British and Irish Association of Law Librarians’ Supplier of the Year Award. It seems that the methodology and good service, perhaps in a sea of mediocrity, pays off. Of course, it’s not for me to know and if I did to discuss here the extent to which this transfers to profits but I like to think that that is the case. What I do see, when I meet my Bloomsbury Professional friends, is a group of ambitious but happy and contented enthusiasts who believe they are winning.

For some of the other major information providers, certainly those in the UK and, I would hope, excluding Bloomberg Law/BNA, I think they should watch and learn from the likes of Bloomsbury Professional, PLC and Justis Publishing. There are certainly areas in which they could improve and do better but the younger innovators are taking the prizes and becoming positioned in the number 2 or 3 slots in particular market segments, though perhaps becoming simply candidates for acquisition and emasculation, as one might hope will not be the case in relation to the acquisition in the USA of Law360.

Equally, to avoid self-delusion, it should not be forgotten that Bloomsbury Professional is itself part of a quoted company and the smaller ones are often inclined to mimic the activities of their larger peers. No personal judgment on the views expressed, of course, but I wonder if their thinking is in line with or at a distance from those of the other end of the professional publishing spectrum, http://tomglocer.com/blogs/sample_weblog/archive/2012/02/04/2852.aspx, balanced against http://www.thisislondon.co.uk/business/business-news/reed-chief-engstroms-3m-package-7562508.html. Other informed commentators, however, hold opinions on such matters, http://practicesource.com/house-of-butter/tom-glocer-educates-us-on-marx-and-adam-smith.

Victor Willis, lead singer of the Village People, that camp disco-era singing group, has won an important victory in a California court. Willis wrote YMCA and other hit tunes performed by the group, the copyright to all of which wound up in music companies, as is so often the case for musicians starting out. However, US copyright law was revised in 1978 to include "termination rights," a provision enabling creators to resume ownership of the copyright after 35 years. Despite various arguments by the music companies, the court accorded Willis the rights to the songs at issue.

According to the story in the New York Times, the issue is muddied by a couple of factors. For one thing, the Village People, like many other bands, was a creation of a music company and might be considered employees, in effect; in which case, the copyright to any of their creations made in the course of employment would belong to the employer. This argument was initially put forward by the defendants but then withdrawn, so it hasn't been ruled on. As well, it may be the case that Willis was not the sole writer of the songs and, consequently, the monetary value of his interest is as yet unclear.

I've not yet been able to put my hands on the judgment and would be grateful for a link when one surfaces.

I note that Willis's manager and wife (yes, he's straight) earlier filed for cancellation [PDF] of various Village People trade marks.

Those who for some reason cannot summon up the glory that was the Village People can see what the fuss is about on this YouTube video. Feel free to dance along.

[ UPDATE (8pm): I've just received a copy of the court's order in this matter, Scorpio Music SA v. Willis [PDF], thanks to Lee Ryan, Research Librarian at the Dorraine Zief Law Library, University of San Francisco School of Law. ]

Since Sunday I've been at the Canadian Association of Law Libraries annual meeting, which wrapped up moments ago. I'm a new member of the organization and this was my first CALL conference. I'm pleased to have put so many faces to names, avatars, and handles. I also enjoyed reconnecting with many people I've worked with over the years in several domains all over the country.

The conference presented much enriching content, and also highlighted that many involved in different legal libraries, in different sectors, share many concerns and challenges. This knowledge came to light during networking times and in sessions.

As is so commonly done these days, and as Shaunna noted yesterday, many of us tweeted what we heard and thought about during the sessions and in conversation. We used the Twitter hashtags #call2012acbd and #call2012; I urge you to search or scan those streams on Twitter (within a few days) if you're interested in peeking in.

For posterity, I Storified a few themes:

• a summary of the legal publisher vendor demo session,
• conversations about looseleaf subscriptions, and
• a session on mobile library sites.

It is becoming more common for businesses (and law firms) to have a corporate presence on social media platforms such as Facebook, LinkedIn, and Google plus. Some take advantage of promotional uses such as contests on Facebook. 

It is important to look at the terms of use if you do that. Facebook, for example, has terms that govern how contests can be run on Facebook. I suspect many Facebook contests run afoul of these terms, and get away with it only because Facebook didn't happen to catch it. I also suspect that many people running the contests are not aware that the rules exist, or if they do know, see others violating, so think they can get away with it too.

Violating the rules is dangerous, as there is a risk that the social media site might simply terminate the page, or even suspend the account. That would certainly be embarrassing and damage one's reputation, and could, depending on the circumstances, attract the wrath of users or followers.

Daniel Kahneman's new book, Thinking, Fast and Slow, synthesizes his life's work as a psychologist. The book is about the systematic errors that limit human judgment.

The six-chapter section on overconfidence is particularly instructive for lawyers in helping them to assist clients to make better decisions and to make better decisions themselves. It appears that excessive optimism and overconfidence are part of the human condition. In fact, an expert's subjective degree of confidence in his or her predictions is irrelevant to the performance of the expert.

Research has shown that, while computers are better than humans at solving problems involving logical intricacy, humans are better than computers at exercising judgment because computers don't know what they don't know. However, Kahneman points out that humans have a similar problem, which he calls "our almost unlimited ability to ignore our ignorance." We choose not to know what we don't know.

In a chapter called "The Outside View", Kahneman describes how there are two methods of forecasting, the inside view and the outside view. The inside view is how we normally forecast. We focus on our particular circumstances and personal impressions and we limit our search for evidence to our own experiences. We treat every situation as if it were unique and we don't seek out the statistics of cases that are similar to our own. Kahneman calls this WYSIATI (what you see is all there is) and he says it often leads to delusional optimism.

This assumption of uniqueness reminds me of an idea that Daniel Gilbert expresses in his book, Stumbling on Happiness: the best way to predict our own happiness in a given situation is to see how others who are already in that situation feel about it. We are each not as unique as we think we are.

Lawyers often take the inside view. Says Kahneman,

I once asked my cousin, a distinguished lawyer, a question about a reference class: "What is the probability of the defendant winning in cases like this one?" His sharp answer that "every case is unique" was accompanied by a look that made it clear he found my question inappropriate and superficial.

The solution he proposes is to get the outside view by obtaining statistics of your reference class and adjusting the baseline prediction using specific information about your case. Only slight adjustments to the baseline prediction are usually required. So, for example, if you have a terminal form of cancer but you are young and otherwise healthy, you may live slightly longer than the base mortality rates would predict but you are unlikely to be cured.

In the litigation example illustrated above, lawyers need to be asking themselves questions like, "How many of these cases succeed in court? How many settle? What are the amounts?" You then would adjust your prediction according to whether your case is stronger or weaker than similar claims.

In another chapter called "Intuitions vs. Formulas", Kahneman discusses how statistical algorithms that combine a few ratings often outperform clinical predictions. Examples of the superior performance of algorithms include bank evaluation of credit risk and the evaluation of prospects of success for new businesses. These algorithms are successful even when the combinations of features they include aren’t particularly complex. Checklists such as Apgar scores for the level of distress of newborn babies have been developed using these methods. Checklists have made their way from the construction industry into medicine (see Atul Gawande's book, The Checklist Manifesto) and likely could be used more extensively in law than they have been used so far.

Humans "try to be clever, think outside the box, and consider complex combinations of features in making their predictions." The weakness of human experts is that they are context dependent and therefore inconsistent in their predictions while formulas always return the same answer when given the same input.

Kahneman has come to the counterintuitive conclusion that, in what he terms “low validity” environments, final decisions should be left to formulas.

In a third chapter entitled "Expert intuition: when can we trust it?", Kahneman concludes that expert intuitions are likely to be skilled only where the environment is “sufficiently regular to be predictable” and there is the opportunity to learn through prolonged practice. Some areas of legal practice offer this type of predictable environment and others do not.

An extraordinary warning today from the Solicitors' Regulation Authority that fraudsters in Britain have set up phony law firm websites, sufficiently genuine looking that there's a real risk of fraud.

Bogus firms: Are you at risk of being cloned?

Major Vendors of legal information in Canada sit in a hot seat every year

Carswell has a business problem with cancellation of loose leaf services. They want to go beyond anecdotal evidence to deal with their loose leaf services problems. Annual billing vs. per release pricing is being questioned. The number of December 'extra releases' was raised. Members of CALL/ACBD question the need for loose leaf to exist. It is contentious, difficult and the members of the association are frustrated.

The twitter stream is #CALL2012ACBD.
Follow along to see what Thomson Reuters – Carswell, LexisNexis Canada, CCH Canadian, and Irwin Law are answering.

Here are the three most-consulted English-language cases on CanLII for the week of May 1 – 7.

♨ 1. Bruni v. Bruni 2010 ONSC 6568 (Back again for a re-run, thanks to notes in a couple of UK blogs: The Motley Fool and Roll On Friday, such is the power of notoriety.)

[1] Paging Dr. Freud. Paging Dr. Freud.

[2] This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment.

[3] In addition to the volatile issues of custody and access, this application raises a question as to whether grounds exist to set aside the separation agreement of the parties.

[4] Then follows a mash of issues . . .

♨ 2. Avila v. CUPE Local 1600 2012 HRTO 167

[3] The applicant commenced employment with the Toronto Zoo in 2006. He applied to the employer’s insurer for long term disability benefits (“LTD”) in January of 2008. The LTD is a term of the collective agreement between the Toronto Zoo and CUPE, Local 1600. His claim was denied in April of 2008. The applicant did not appeal this decision. The respondents state that they were not aware of the denial of the claim until 2010.

♨ 3. Holmes v. Lerners LLP2012 ONSC 2566

[1] This is an application under Rule 14.05. The applicant asks for an order that the respondent law firm’s bill be assessed. The materials on the motion were sealed by Gordon J. to protect solicitor/client privilege. They remain sealed. This endorsement need not be sealed, as I have not found it necessary to quote privileged communications.

The most often-consulted French-language decision was, returning after a gap for yet another week, Industries Lassonde inc. c. Oasis d'Olivia inc. 2012 QCCA 593

[2] Les appelantes sont détentrices de la marque de commerce « OASIS » et de nombreuses marques y associées, comme « Oasis Florida Premium », « Oasis Sélection » et « Oasis Classique », utilisées essentiellement à l’égard de jus, boissons et sorbets. Elles sont aussi détentrices de la marque « OLINDA » en association avec de l’huile d’olive.

[3] En 2006, d’avis qu’il y avait risque de confusion avec ses marques de commerce, les appelantes intentent des procédures en injonction permanente, en remboursement de profits et en dommages « exemplaires et punitifs », contre l’intimée, qui utilise la marque de commerce « Olivia’s Oasis » en association avec des produits de soins corporels, dont des savons, et qui demandait, à l’époque, son enregistrement (obtenu en juillet 2010).

In an article this weekend, the Montreal French-language daily, La Presse, reported that the provincial Liberal government is looking to amend the Quebec Labour Code in response to labour turmoil at the Journal de Montreal (another Quebec daily). In that dispute, the striking union argued that the Journal de Montreal’s management got around the anti-scab legislation by contracting out work to journalists working from home. The law, as it is currently written, does not prohibit this kind of technological circumvention as it generally only bars the use of employees from an employer’s establishments (with many nuances) while a strike is ongoing. According to La Presse, the Liberals are looking to change that in order to “restore” the balance of power in a labour dispute. Quebec is one of the only jurisdictions to have anti-scab legislation. Does strengthening it make sense?

For more than 17 years I’ve worked in legal marketing, I’ve been keenly listening to clients about how they choose their lawyer, what irritates them and why they leave. I read surveys, attend public and private panel sessions that profile clients and their preferences, and I interview clients at every opportunity.

If you’re in a business, such as law, which centres on attracting and keeping clients, your marketing — and all other business strategies — must be informed and guided by client preferences. If you’re not understanding, responding and anticipating their needs, you will never reach your full potential. Start listening, and if necessary, start asking. Gratefully, clients will normally tell you very clearly what works and what doesn’t.

Here are the nine most common themes clients want in their lawyer:

1. Know my business

Don’t learn on my dime. Come to the table with a good understanding of our industry, our history and nuances, and a map to our landmines. Ask to attend a management or board meeting to get deeper insight into our business.

2. Don’t sue us

If we’re friends, and I pay your fees, don’t let your partners take a swipe at me.

3. Ignore me at your peril

I don’t always need the answer, the final document or the update, but I do want to be acknowledged if I leave you a message or send an e-mail. Tell me when you’ll be available. I’d even be happy to hear from your assistant.

4. Show me value

Concern yourself with demonstrating value. If you write off some time on my invoice, show me. If we can learn together or attend a CLE, invite me. If you or your firm can help me in other ways, please tell me.

5. Communicate with me 

Help me understand what’s going to happen during our time together, explain your billing method so I don’t have to ask, keep in touch with me while the file is active, and help me manage the stress related to my legal issue. Explain to me who’s on my file and why. (They shouldn’t be too junior or too senior.)

6. Stay in touch

Even when there’s no active file in play, I want to hear from you occasionally. If you treat our work as transactional, I will too and will reconsider where to send each new matter. There will be no loyalty to you because you’re not investing in our relationship or staying in touch with our business.

7. Seize opportunities to learn about us

If a piece of work went to another firm, by way of RFP or otherwise, ask me why you weren’t selected. Give me the chance to discuss this with you. Perhaps you’ll be better suited next time, or even better informed, but you won’t know if you don’t ask.

When we conclude a piece of work, invite me to provide some feedback on what went well and what could improve. Lawyers never ask me about this and it’s an effective way to increase loyalty, provided it results in service delivery improvements.

8. Manage my expectations.

Don’t surprise me with your bills. Under promise and over deliver when possible.

Avoid telling me what I want to hear, instead, prepare me for the worst outcome.

9. Anticipate my needs

With your experience you ought to know what I will need and want at every stage of this matter. If you provide it without my asking, you appear thoughtful and intelligent, but you’ll also gain my loyalty because you clearly have my interests at heart.

Law students to seasoned partners ought to commit these to memory and practice them daily. It’s a formula for success. How do I know for sure? For 17 years clients have told me so.

We all like self-improvement tips, even when it isn’t New Years. My good friends Merrilyn Tarlton and Joan Feldman over at Attorney@Work have posted an amazing collection of 101 tips for improving your law practice and being a better you. And as a bonus, many of the tips link to more detailed info.

This post is a must read. It is packed full of great bite-sized tips you can implement immediately. Read it today!

Finally, after a decade of exclusively print publication, a portion of the Supreme Court Law Review is available free and online. Each year for the past fifteen years, Osgoode Hall Law School has held a Constitutional Cases conference, the output of which is published in the SCLR. Now, thanks to the efforts of Jamie Cameron and others at York University, the broader community will have access to the more than 200 articles by constitutional scholars and litigation experts. As well, LexisNexis, publishers of the print SCLR, are to be congratulated for giving their permission and support to the project.

The journal web page has a search function, of course. And you're able to browse by issue, author or title. Results present an abstract and a link to the article in PDF.

This is a very happy development indeed.

The Canadian Association of Law Libraries (CALL/ACBD) annual conference kicked off last night in Toronto at the Fairmont Royal York Hotel and the Ontario Legislature. Yesterday we had many of the Association business meetings, the first part of the AGM and opening of the exhibit hall at the Royal York. Members and guests then headed to the Legislature for the opening reception.

We were treated to a welcome from the Speaker of the Legislative Assembly, Hon. Dave Levac (see photo), and a tour that included the Speaker's apartment in the Legislative Building, the Legislative Chamber, and the Legislative Library.

CALL/ACBD 2012 continues today through Wednesday with exhibit hall, outstanding educational programs, business meetings and networking events at the Royal York.

There is a certain foreboding in this David Bowie lyric. The song warns those in power of an emerging class that will replace them.

There are parallels in the modern world of the administration of civil justice.

The need for civil justice is as strong as ever. But although the core qualities of our civil justice system are beyond reproach, some of our machinery for delivering it is rusty and inefficient. This drives up the cost for the individuals and businesses that need it and hurts the image of the bench and bar.

The irony is that we are more able to deliver efficient machinery for the administration of justice than at any time in our past, thanks to the advances in technology.

There has been recent and volubile judicial criticism of the lack of resources committed by the government. Although there are complicated security, cost and other issues surrounding the implementation of software that allows direct public access, e.g. on-line booking and document filing and retrieval systems, one area for improvement requires nothing more than already existing email facilities.

I am referring to the service of material between parties.

In most civil cases lawyers still create hard copies of evidentiary records, books of authorities and factums. These are printed and bound and given to couriers who lug them about the city and beyond, spending hours lining up at court offices across the province to serve and file them.

This still goes on in matters on the Superior Court general list even though judges frequently request material in electronic format.

A particularly irritating example is books of authorities. Very often hard copies of these delivered by different parties contain several of the same cases.

Not only is it wasteful and expensive to copy (a lengthy case such as Combined Aircosts about $25 per copy), it creates storage costs, and it is useless. Judges and counsel all have online access to the cases. All they need is the link and the paragraph numbers. It is true that highlighting cases can be very helpful. But that of course can be done electronically.

While there are many advantages to having hard copies of certain documents in court, that is a choice that parties should be able to make, at their own cost.

We make a fetish of service of documents, even where all parties are represented. The rules requiring service of hard copies or faxes of factums and records are hopelessly out of date, and unnecessary in the vast majority of cases. They drive up cost.

This issue is a small example on inefficiency and waste. But why tolerate it?

When the discussion turned to rebuilding the British House of Commons in 1943 (after its destruction on May 10, 1941) Winston Churchill in a simple but profound way stated, "We shape our buildings and afterwards our buildings shape us." He had fixed ideas about what the rebuilt House of Commons should look like – exactly like it was before. He was opposed to the semi-circular chamber which was popular in continental Europe and the U.S. (and Toronto City Hall) and in his view was poorly suited to party politics. His theory, based on his own experience, was that changing political parties should require a member of parliament to "cross the floor".

Churchill also noted the importance of the design of physical space for debate. In advocating a space too small for all of its members, Churchill said,

The essence of good House of Commons speaking is the conversational style, the facility for quick, informal interruptions and interchanges. Harangues from a rostrum would be a bad substitute for the conversational style in which so much of our business is done. But the conversational style requires a fairly small space, and there should be on great occasions a sense of crowd and urgency. There should be a sense of the importance of much that is said and a sense that great matters are being decided, there and then, by the House.

Physical space and distance are important symbols of human interaction and also contribute to the quality of those interactions. Physical proximity has a subconscious effect on people. One study shows that the closer an individual is to another person (while respecting personal space), the more positive the attitude towards the other person. Another study, indicates that people in close proximity are rated more sincere, natural, likeable and loving than others. In addition, those individuals are also perceived to be less dominant by their peers. Distance is also associated with safety. This means that a greater distance is preferred in tense situations.

Eric Kornhauser and Shawn Whelan have noted:

The need for congruence between the content of our communication and the environment in which it occurs should be obvious to lawyers, especially courtroom advocates. Traditional courtrooms provide a classic illustration of the explicit messages about process being supported and promoted by the attendant physical surroundings. Everything about the court environment is intended to send a clear message to participants – from the way judges and barristers are dressed, to the configuration of seating arrangements. All of the vivid courtroom images support the important messages which the adversary system seeks to convey – messages about independence, authority, distance, sobriety, respect, neutrality – a place where decisions affecting people's lives can be made impartially and fairly.

Tribunals have generally adopted and adapted a court-like setting for hearings. The location of hearings is usually a neutral location, not associated with any of the parties that appear before the tribunal. The adjudicator or panel of adjudicators sit at the front of the room, sometimes on a raised platform, but always in a good position to command the room. The parties generally sit at separate tables, facing the adjudicator. Witnesses sit apart from the parties, generally either to the right or left of the adjudicator's table. One variation used by some tribunals is the u-shaped table, where the parties sit across from each other, with the adjudicator at the bottom of the "U".

With the parties facing the adjudicator, rather than each other, the role of the adjudicator as the decision-maker is reinforced – all eyes are on him or her. The parties are not able to look at each other when making submissions. With the u-shaped setting, it is more likely that the parties will have to look at each other. Studies have shown that people generally prefer face-to-face seating for communication. It is a common sense observation that looking at someone when talking to them can lower tension and discourage disrespectful talk. It is also easier to pick up non-verbal cues when facing someone.

In that same British House of Commons debate on the new House of Commons, Viscountess Astor was the only one to speak forcefully for a circular setting:

I believe that we shall emerge out of this fight into a more reasonable age. It may be better to have a circular House. I have often felt that it might be better if Ministers and ex-Ministers did not have to sit and look at each other, almost like dogs on a leash, and that controversy would not be so violent. I do not think there is any merit in violent controversies, and I do not believe that the fights in the House of Commons helped democracy.

Canada’s Specific Claims Tribunal has designed a hearing room that respects aboriginal culture. The centre of the hearing room is a table made up of eight sections that form a circle. All parties, including the judge, sit at the same level and at equal distance from each other. The hearing room also incorporates First Nations' perspectives, including natural wood and stone materials. The circle and medicine wheel are included in the design of the walls, the ceiling, the doors, the flooring, and the furniture. A summary of other design features is available here.

The hearing room is designed to be less hierarchical and more congruent with aboriginal culture. The chair of the Tribunal, Justice Harry Slade (quoted in a recent article) said,

Anything that tends to remind one of sources of power that have tended in history to impose an external will upon people would not be ideal. There's no obvious emblem of power, where people are seated around the circle.

Change is hard. Apparently the judges appointed to the tribunal are not comfortable with the arrangement for hearings. Justice Slade says the round table may be suitable for pre-hearing sessions and mediation, but there are practical problems for hearings. He notes that there are good, practical reasons for the judge to be "distant from the parties and elevated", in part because the judge can then see everybody. In addition, the Tribunal has a clerk who will hand documents to the judge and the judges have expressed a concern that they will then have to "look around the side of the clerk" to see the parties. Justice Slade also points out that if everyone is sitting in a circle, everyone can look at what the adjacent person is doing, including seeing the notes of the judge/adjudicator.

I have conducted hearings in rooms with an elevated desk and in rooms without an elevated desk. I have never had any challenges seeing everybody when at a non-elevated table. Tribunals that have multiple parties (such as the National Energy Board, see diagrams at pages 19 and 20 of their hearing guide) may benefit from an elevated platform to see parties in the back rows of counsel tables. However, what might be more important in those circumstances is that the public be able to see the panel (the better to see justice being done).

At the Specific Claims Tribunal, the suggested solution to these perceived problems is to separate the eight sections of the table and set them up as separate desks. And with this, we have come full circle. It remains to be seen if there is room for innovative hearing room design in the future.

This Saturday, the University of Toronto Law is hosting the second annual lawTechCamp. The schedule is available here, and it's no surprise that you'll see many familiar law bloggers, including a significant presence of Slaw contributors.

You can read reviews of last year's event on Slaw here and here, and background on what this kind of tech camp is about here.

One significant difference with the event this year is that there are a number of sessions which are CPD accredited. Considering the cost of attending is still free, the event promises to be well-attended and characterized by lively debates.

The Journal of the Digital Humanities just released its inaugural issue. It is an open access journal with a new take on the peer review process. As described in the editorial, the idea of community is the starting place for the journal. 

Reversing the 'closed' selection and review process usually used, the journal starts with the materials noted on the Digital Humanities Now blog, which itself is a selection from the materials available through all the websites included in the very comprehensive Digital Humanities Compendium. Interestingly, anyone can add their site to the Compendium, so accordingly there is no formal submission process to the Journal. If you want to be considered, get your stuff into the Compendium. How you do it is not an issue.

The materials are winnowed down to a few dozen in the Editor's Choice, and then further selected, reviewed, edited, copyedited, etc., until an issue is produced. This inaugural issue worked with materials appearing in the last three months of 2011, so undoubtedly they are now working hard on the next issue right now.

Also worthy of note: the license allows commercial use of the materials (with attribution), and the journal is available in EPub format, which should go well with your tablet.

Nobody whistles anymore. Seems to me you could once walk down the street and hear the people you passed whistling tunes. I remember indulging in a kind of stealth tune stealing, where I'd quietly join the whistler's tune and gradually up my volume, maybe adding a cadenza or two, until the song was mine alone. I don't remember learning to whistle, though I do remember being mightily impressed that my dad could do it — and could send out a shrill blast through his teeth when needed. This loud whistle so got to me that I sweated long and hard to copy it, failing until a girl taught me how to whistle using two fingers, as we walked home from school (Thank you, Edie Howell. And yes, I really did like you.).

But the tuneful whistle has vanished. Which is a shame. It's a cool thing that human beings can do. Gets us closer to birds. People who maybe can't sing on key can make good music with a whistle. And that may be the problem: it's about making music. At the moment there's a whole lot of consuming of music and not so much impromptu making, perhaps. Besides, with earphones in, who can hear his whistle?

Proving me wrong and also making my case is this video, "History of Whistling," by cdza, which whips you through fragments of 26 pop songs spanning 96 years, songs in which there was whistling. (You may wish to look at their other video "History Of Lyrics That Aren't Lyrics" as well. The singer is good.)

But pop songs, or pop whistlers from the past like Roger Whittaker, are not what really concern me. I'm missing the street whistle, your pursed-lipped rendition of whatever your mind happens to publish as you stroll along or examine shop windows. I'm missing the whistling truck driver who bangs the beer kegs down on the sidewalk and rolls them, happy, into the pub. The reedy whistle of the kid learning her craft.

Lawyers probably work in one of the most stressful environments that exist. If they are in private practice, they have the stress of working to provide their clients the information, advice and services that the client is looking for when the client wants it. If they are in-house counsel or in the public sector, they have employers, bosses who want information, advice and strategy when they need it, not on the lawyers’ schedule. As well, lawyering is such that sometimes there does not seem to be any clocks and everything else can be put aside including family, friends and one’s own personal well-being.

When a lawyer starts feeling in trouble, the typical knee-jerk reaction is “I cannot admit that I am in trouble because I will be in danger of losing my position or be disparaged for being weak”.

So, the individual doesn’t say anything and continues on. Ultimate extreme reaction is that the person simply loses it entirely and takes some drastic action that can destroy their life. They do something bizarre, as it’s the only way that they can draw attention to their plight. Case in point – a University Professor known to be highly competent and highly liked, out of the blue attacked his wife with a knife. It turned out that he was deeply depressed and highly stressed. His bizarre conduct was a cry for help that was heard, but it also destroyed his career!!

The culture must be that it is okay for lawyers to seek help. They do not have to solve everything themselves.

Help can be found in a way that does not expose the person.

A short anecdote can illustrate clearly how this might come to pass. A lawyer who worked 14 to 16 hour days and was doing so for years was struggling, and was not getting help. Driving down the freeway one day when somebody cut him off he got angry and started chasing the person. He was stopped for excessive speeding. When the police officer came to this car, the lawyer was shaking and told the police officer he really didn’t understand why he had done what he did. The police officer reduced the speeding ticket but said to the individual, “I really suggest that you go talk to somebody.” The lawyer was so shocked by this incident he went to his family doctor who referred him to a psychologist.

The lawyer started working with the psychologist and his family doctor. Within twelve months, the lawyer was back on track with a completely different perspective. The lawyer was able to do this without having to announce it to the world. He was able to share his story with the people he needed to and trusted. The point of this story is twofold. One, you can’t deal with the issues of stress and depression by yourself. You need to reach out. Secondly, you can do this reaching out in a way that can be handled with discretion.

The challenge remains for all of us to accept that depression is like a broken leg, it is an ailment that needs treatment and care and you do get better! We must all fight the stigma that surrounds mental illness and remind the world that it is simply an illness like any other!

Written by John D.V. Hoyles

John Hoyles is the Chief Executive Officer of the Canadian Bar Association, Vice-Chair of the Ottawa Regional Cancer Foundation who put on the boxing match between MP Justin Trudeau and Senator Patrick Brazeau and is an avid golfer.

This is a post in a series appearing each Friday, setting out some articles, videos, podcasts and the like that contributors at Slaw are enjoying and that you might find interesting. The articles tend to be longer than blog posts and shorter than books, just right for that stolen half hour on the weekend. It’s also likely that most of them won’t be about law — just right for etc.

Please let us have your recommendations for what we and our readers might like.

The Walrus – That Time We Beat the Americans
A misunderstood moment, now 200 years old, defines us as Canadians. A citizens’ guide to the War of 1812 – Stephen Marche – Canada as a contingent nation, existing because of . . . retribution, allies, heroes, hubris, etc. You need to know this stuff to entertain your American friends with accuracy.

YouTube – The HemLoft – a secret treehouse, hiding in the woods of Whistler – Joel Allen – This is a whole lot better than soldiers hiding in the woods. And it keeps the Canada theme going. If this video leaves you wanting more, there's a whole explanatory site where you can read the history of the HemLoft and see a ton of pics.

UofTMagazine – Frye's Anatomy – Alec Scott – Relax: it's not actually his anatomy, thank God. But it is a good brief biography of the man who came from Moncton to a niche in the University of Toronto, from where he changed the world — insofar as critics of literature can. And because we offered you text to accompany the treehouse video, we're offering a video (1973 interview with Frye) to go with this text.

British Library Digitized Manuscripts – The St Cuthbert Gospel – St. John – We leave Canada now for the 7th century and for the digitized (i.e. photographed) copy of the oldest intact European book. Dwell on that statement for a while, book lovers. And then click on the "images" link on the landing page to scroll through, at the magnitude of your choice, a truly beautiful volume. Frye, of course, wrote an analysis of the Bible, so we haven't strayed too far, perhaps.

High Resolution Imaging Science Experiment (HiRISE) – Image Catalog – University of Arizona – If you want far-straying, this is it. This site offers thousands of images of Mars in astonishing resolution. Here you'll find dust devils, craters, dunes, translucent ice, and more wonders than you can imagine. Best of all, you can download them as wallpaper for your desktop machines.

NPR – The Delights Of Reading Upside Down – Robert Krulwich – The man who brings us Krulwich Wonders offers words on their head here. Familiar with ambigrams? Me neither. But they're a kind of graphic palindrome. You'll have a whole new category of things to doodle during meetings after you see this stuff.

The Guardian – The real CSI: what happens at a crime scene? – Craig Taylor – You knew that CSI Miami etc. was bogus, right? Here's the way it really happens, starting with the discovery of a body in a canal in London — and without that irritating what's-his-name . . .

London Review of Books – It Was Satire – Mary Beard – Speaking of irritating, and murder, Caligula seems to have done well on both counts. Beard reviews a biography of the young emperor we all love to hate. The satire? His elevation of his horse to consulship, apparently. Maybe not entirely mad, then.

Spinner – Rufus Wainwright, 'Out of the Game' Video: Helena Bonham Carter Plays Librarian – Cameron Matthews – Thought I'd forgotten about Canada, didn't you? Well, here's a video of the title track to Canadian Rufus Wainright's latest CD. And I'm really torn here: stoked that HBC is featured; bummed that it's the old librarian stereotype again. Oh yeah: Rufus sounds pretty good.

Wired – Vint Cerf: We Knew What We Were Unleashing on the World – Ryan Singel – "Vint Cerf invented the protocol that rules them all: TCP/IP. Most people have never heard of it. But it describes the fundamental architecture of the internet, and it made possible Wi-Fi, Ethernet, LANs, the World Wide Web, e-mail, FTP, 3G/4G — as well as all of the inventions built upon those inventions." Singel interviews him.

The Chesapeake Digital Preservation Group has just published its 5th annual study of link rot among the original URLs for online law- and policy-related materials it has been archiving since 2007.

"Every year, the Chesapeake Group investigates whether or not the documents in the archive can still be found at the original web addresses from which they were captured. The group analyzes two samples of web addresses, or URLs, pulled from the archive's records"

"The first sample includes 579 original URLs for content captured from 2007-2008. This sample is revisited every year to document link rot and explore how it changes over time (…) "

"In 2012, 218 out of 579 URLs in the sample no longer provide access to the content that was originally selected, captured, and archived by the Chesapeake Group. In other words, link rot has increased to 37.7 percent within five years."

Link rot describes "a URL that no longer provides direct access to files matching the content originally harvested from the URL and currently preserved in the Chesapeake Group's digital archive. In some instances, a 404 or "not found" message indicates link rot at a URL. In other cases, the URL may direct to a site hosted by the original publishing organization or entity, but the specific resource has been removed or relocated from the original or previous URL" (from the 2011 link rot report)

More than 90% of the sample URLs were from state governments (state.[state code].us), organizations (.org), and Us government (.gov) top-level domains.

The Project has built a digital archive collection comprising more than 8,600 digital items. Most of the material archived is American. The Project is an initiative of the Georgetown Law School and Harvard Law School Libraries, and of the State Law Libraries of Maryland and Virginia.

This issue is also of major concern to Canadian legal researchers, as illustrated by the following posts here on Slaw:

• Link Rot and Legal Research, Ted Tjaden, August 3, 2005
• Link Rot is Alive and Well, Ted Tjaden, March 19, 2008
• Link Rot in Court Decisions, Shaunna Mireau, May 7, 2009

Chief Judge Looks to Pro Bono to Address Access to Justice Concerns

The Chief Judge of New York State announced that henceforth (did I really use that word?) all applicants for the New York state bar must complete 50 hours of pro bono work. Can he do this? Yes he can. In New York, as in many states, lawyers are licensed and regulated by the courts. Many state courts have delegated this power to state bar associations, but not New York state. Chief Judge Jonathan Lippman said that the new requirement was intended to provide badly-needed legal services in urgent cases like foreclosures and domestic violence. New York is the first state to enact such a rule; others may follow. Could this happen in Canada?

Dare to Dream

In an interview in the December 2011 edition of the CBA's magazine The National, the Governor-General reiterated the substance of his provocative remarks at the CBA's August 2011 Legal Conference in Halifax. In the interview the GG asserted:

I would be inclined to say we should see 10 per cent of our time devoted to pro bono causes as part of our professional responsibility. The figure is about 3 per cent now.

The Canadian Legal Information Institute (CanLII) and Lancaster House announced this afternoon that they are cooperating in a project to provide open access legal commentary. The digitized text of Wrongful Dismissal and Employment Law (1st Ed.) by Peter Neumann and Jeffrey Sack "will be fully integrated and freely available to the public on the CanLII website" as of tomorrow, May 4, according to the joint press release. The press release also states that CanLII President, Colin Lachance, sees this a first step in improving access to law through the free provision of explanatory materials.

The Wrongful Dismissal e-text will be updated in July and subsequently two to four times each year.

The text of the press release is available here.

Rule 3.01 (1) of the Law Society of Upper Canada’s Rules of Professional Conduct is always overshadowed by its sister rules. Yet, it is perhaps one of the most important rules of our profession:

3.01(1) A lawyer shall make legal services available to the public in an efficient and convenient way.

This rule suggests that if a lawyer is not providing legal services in an efficient manner, she is breaching the rule; and, if a lawyer is not providing legal services in a convenient manner, she is also breaching the rule. Interestingly enough, the commentary in rule 3.01 makes no mention of efficiency and convenience; it deals only with legal aid and declining representation. Rule 8.02(1) of the Paralegal Rules of Conduct is virtually identical to that of Rule 3.01(1) and the guidelines around this rule also ignore efficiency and convenience.

Somewhat similar is Rule 2.01(1)(e) which requires a lawyer to perform client service “in a cost-effective manner.” The commentary for this Rule also lacks interpretation of this phrase. There is no similar provision in the Paralegal Rules of Conduct – for no apparent reason.

If we were to fill the gaping hole in these commentaries we would have to determine from what point of view are legal services to seen as efficient, convenient and cost-effective?

From the lawyer’s/paralegal’s point of view?

From the public’s point of view?

Clearly, it’s the latter.

Both lawyers and paralegals have an obligation to make their services efficient and convenient – with lawyers having the extra obligation of being cost-effective – from the point of view of our clients. Few, if any, lawyers read the rules in this way.

If a professional’s knowledge management system is such that it is not easily accessed or used, this is inefficient and far from cost-effective – and a breach of the rules.

If professionals fail to take advantage of technology for easier communication, preparation and delivery of services, this is also inefficient and inconvenient – and a breach of the rules.

Perhaps a refusal to provide unbundled legal services is a breach of the rules as it is a failure to provide convenient and cost-effective legal services.

But let me be more provocative. Most lawyers bill by the hour. In times when work is scarce, senior lawyers have been known to undertake work that should have been delegated to more junior personnel billing at a lower hourly rate – a clear violation of Rule 2.01. However, compliance with Rule 2.01 means more than merely delegating work to lower-priced personnel. Compliance with Rule 2.01 means devising a system of charging clients that rewards a lawyer’s efficient and cost-effective behaviour. Billing by the hour and setting monthly billing targets rewards inefficiency and creates a conflict between the professional’s need “to make target” and the client’s desire to have work done cost-effectively – no matter who is working on the file. So, in my view the system of billing by the hour is a major breach of Rule 2.01.

It should come as no surprise that efficiency, convenience and cost-effectiveness are at the heart of all the innovations that we are beginning to see sprout up across the legal landscape, including the move to the Cloud and the creation of virtual law firms. These legal innovators are taking their obligations under the rules very seriously.

Finally, there are many excellent business reasons for lawyers and paralegals to embrace change and re-invent how they serve clients – reasons that professionals are free to ignore. But what cannot be ignored is the ongoing obligation to constantly assess the way we manage our practices to provide clients with “convenient, efficient and cost-effective service” that is enshrined in the Rules of Professional Conduct.