Canada’s online legal magazine.

Copyright Reform Survey Results

Last week I posed a survey on copyright reform. Here are the results.

The result is overwhelming.

So in anticipation of comments pointing out the following:

– it clearly was not scientifically accurate

– it is quite possible that the question was biased

– it may reflect the large proportion of users to creators and thus shows the tyranny of the majority rather than a principled view. . . . [more]

Posted in: Miscellaneous

Waiver of Tort in Class Actions

It is fashionable for class counsel to plead “waiver of tort” as a common issue alleged to be certifiable in product liability class actions. Waiver of tort refers to a plaintiff’s election at a common issues trial to have recovery quantified not by provable tort damages but rather by the defendant’s gain arising from the alleged tortious act.

As merits-based classes defined by injury are impermissible in common law provinces, waiver of tort is the glue to hold together a claim on behalf of all users of a product — without regard to whether it is defective or causes injury. . . . [more]

Posted in: Firm Guest Blogger, Substantive Law

Well Worth a Read – George Paul’s “Foundations of Digital Evidence”

George Paul says that digital record keeping has caused an evidentiary crises of societal proportions and that it is our responsibility, as lawyers, to find a resolution – to find a way of effectively testing the authenticity of digital records so they do “what people expect them to do,” and so that truth is found and justice done.

The American Bar Association published Paul’s “Foundations of Digital Evidence” in 2008. Paul is an American trial lawyer from Arizona with a deep interest in the evidentiary implications of digital information. He was kind enough to provide short interview this week, . . . [more]

Posted in: Substantive Law, Technology

Opening the Kimono?

There are few things more secret within lawfirms than the process of determining equity partnership admission and partner compensation. Even if there are disputes they’re handled behind closed doors or in the leak-proof process of arbitration. There are only a handful of reported cases on such issues involving the largest firms.

Which makes the travails of McCarthy Tétrault particularly newsworthy – although the reactions of many managing partners may well be to thank the relevant deity that it wasn’t their firm.

A former McCarthy Tétrault lawyer is suing the firm for $12 million dollars over an equity partnership admission dispute. . . . [more]

Posted in: Legal Information, Practice of Law, Substantive Law: Judicial Decisions

Lessig Shuts Blog

Larry Lessig, noted law prof at Stanford and long-time blogger, has decided to close down his eponymous (I love that word) blog. He’s posted his last entry, setting out his reasons (baby #3, spam comments, volunteer technical support, new research project) which add up to blogger burn-out after seven years. Sad but understandable.

He’s not leaving the public arena, though (…as if…). He says:

This isn’t an announcement of my disappearance. I’m still trying to understand twitter. My channel at will remain. As will the podcast, updated as I speak. I will continue to guest

. . . [more]
Posted in: Education & Training: Law Schools, Miscellaneous, Technology: Internet

Less and Less a Wild West?

A couple of stories this morning in the Globe and Mail illustrate the changing nature of the internet. One is the report that the blogger “outed” by Google plans to sue Google for breaching its fiduciary duty to protect her privacy (ignoring, apparently, that Google revealed her name in response to a court order). The other is that Wikipedia intends to add a layer of editorial review to its content. Both indicate that in some ways, attempts to regulate the internet are occurring, for good or ill, as needed. . . . [more]

Posted in: Substantive Law

The 24/7 Connection

It’s 11 p.m.. Do you know where YOUR employee is?

Hopefully not. But if she’s home connecting to work on her laptop or smart-phone, she may be running up an overtime tab. Along with dozens/hundreds of others in your organization.

Canada has already witnessed the migration of American-style employee class actions across the 49th parallel. Dara Fresco’s bid at CIBC, described in an article in The Star, got slapped down (see Fresco v. Canadian Imperial Bank of Commerce, 2009 CanLII 31177 (ON S.C.). But Fresco’s taking that rejection to a higher Court, according to an article in . . . [more]

Posted in: Substantive Law

Law Firms Aren’t Serious About Change

According the 2009 Chief Legal Officer Survey conducted by Altman Weil, Inc. [summary, PDF], there is deep skepticism among corporate law departments that their law firm counterparts are equally serious about change. When asked how serious law firms are about changing their delivery model, the answers were in sharp contrast. Only 5% of CLOs assessed law firms as highly serious. 20% gave firms credit for some level of effort. 75% rated law firms between zero and 4 on the scale, indicating little or no interest in change.

“This is a dramatic vote of no confidence from Chief . . . [more]

Posted in: Outsourcing

Can You Tell Me Where the Exit Is?

Class action settlements — perhaps a bit arcane for a blog post, but a gripper if you are defending a class action.

Class action proceedings can be lengthy. The certification process easily adds an extra two years to the proceeding. Not surprisingly, defendants peripheral to the plaintiff’s case often look for an early exit.

In conventional actions, plaintiffs often throw a wide net hoping to find one or more defendants at fault.

Class proceedings have called for different strategies. Plaintiff have the onus of constructing a case with common issues of liability or damages. The common issues must advance the . . . [more]

Posted in: Legal Information, Substantive Law, Substantive Law: Judicial Decisions

This Week’s Biotech Highlights

This is the 26th edition of This Weeks’ Biotech Highlights, which means Slaw has been hosting my ramblings for exactly half a year. Thanks! Other things I’m thankful for:

. . . [more]
Posted in: Substantive Law

SCC Website – What’s Next?

A couple of days ago I was at the Supreme Court to discuss potential improvements to the Supreme Court decision website. Some of you probably noticed that over the last year LexUM greatly expanded the scope of decisions available on this site. We now have everything back to 1949, as well as everything from Ontario and BC back to 1876. If everything continues to go according to plan, all of the decisions ever published in the Supreme Court Report will be freely available online before next spring. With content becoming exhaustive, we are now looking to improve the feature . . . [more]

Posted in: Legal Information, Substantive Law: Judicial Decisions, Technology

Be Careful When Drafting Termination Clauses

That’s the lesson from a recent Ontario Superior Court case.

The plaintiff was hired by the defendant on November 28, 2005 for the position of full-time receptionist and was promoted to the position of Executive Assistant in 2008 at an annual salary of $36,000. Her employment was terminated on November 28, 2008 at which time she was presented with a severance package that provided, in part as follows:

You will receive an additional five months pay in lieu of notice of termination as per our obligations under the Employment Standards Act of Ontario.

The Employment Standards Act would have . . . [more]

Posted in: Firm Guest Blogger, Substantive Law