Dear Friends, Colleagues, Readers,

I’m writing a paper for a CLE conference that’ll be held in Vancouver next June. I’m trying to gather anecdotal information as to whether the SCC decision in Resurfice v Hanke, 2007 SCC 7 and the “material contribution” doctrine mentioned in the case are helping plaintiffs get before-trial settlements — by using the Resurfice“material contribution” notion to get them past difficulties in proving factual causation using the “but-for” test — which are settlements that they might not have been able to get before Resurfice. I’m not after settlement details, just a yes or . . . [more]

Yesterday’s United States Court of Appeals for the Sixth Circuit finding that e-mail held by a service provider cannot be accessed without a warrant has already been much discussed. For good American commentary, see blog posts by Professors Paul Ohm and Orin Kerr and the Electronic Frontier Federation’s news release. This is a short note to identify the links with our recent Supreme Court of Canada decision in R. v. Gomboc.

The American decision, United States v. Warshak, is very much about the societal value of confidential e-mail communications. The Court recognizes such value and grants it . . . [more]

Lawyers love to armchair quarterback the trials of others. We strategize, we second-guess, we substitute our own brilliance for the wit and experience of learned trial counsel. It’s our professional equivalent of Tuesday Morning Football.

However, on the rarest of occasions, there comes a time when a legal strategy is just so outrageous that our armchair quarterbacking risks incurring hoots of derision.

I’ve been reading about a particular trial for the past few weeks (yes, it’s now, at the time I’m writing this, in week 6 of what could be a 9 or 10 week trial). I believe, officially, that . . . [more]

This week in biotech was very slimming:

There have been three obesity drugs presented to the FDA for approval this year. The agency has very stringent criteria for obesity drugs because while they could see wide application (sic), the condition they treat is not generally life-threatening. So any signs of dangerous side effects can doom candidates’ applications. The third and final drug, however, Orexigen’s “Contrave” product, .

The Indian Drug Manufacturers’ Association is lobbying heavily to slim down the free trade agreement being negotiated between India and the EU. They want to accomplish this by keeping “data protection” and . . . [more]

Yesterday LAWPRO posted an update and warning to Ontario lawyers about the ongoing bad cheque frauds it is seeing. LAWPRO continues to get daily calls and emails from lawyers that are being targeted by fraudsters attempting bad cheque frauds. Lawyers must not let their guard down.

If you have any doubt about the extent to which fraudsters are willing to work to engage lawyers and dupe them, take a look at the back-and-forth email exchanges on the Melissa Andersen and Siam Rai fraud attempts. You will be totally amazed at the level of detail in the information exchanged and the . . . [more]

And a bit of substantive law, too, for those with too much time on their hands this very cold (in Toronto) December day.

Different courts in different jurisdictions sometimes arrive at different answers to the same question. Sometimes, though, they arrive at the same answer by different routes. Those interested in the art of judging, even in the development of the area of jurisprudence involved, may sometimes find it useful to compare the cases. (I’ll mention them eventually.) . . . [more]

Good grief: it’s the (I should have expected it) reductio ad absurdum of legal advice. Until now, the briefest piece of wise legal counsel was “It depends.” Now a UK lawyer is offering free advice in 140 characters, which, though longer than that gold standard, doesn’t seem wiser.

A smiling man styled only as The Legal Oracle (@thelegaloracle) is offering on Twitter:

Tweet your legal claim or question and we will answer it free of charge. Taking the fear and mystery away and making law accessible.

Speaking of “fear and mystery”, who in his or her right mind . . . [more]

Have a look at the Research Buzz post today on Google Special Syntax: The Around Operator. Evidently, Google has had a proximity operator available for the last couple of months.

The operator is a capitalized AROUND followed immediately by a number within parentheses, representing the number of words within which you’d like the second term to occur from the first search term. For example, [cameras AROUND(5) courtroom] will find, of course, “cameras in the courtroom”, but also “cameras debated for sniper courtroom” and, interestingly, “Judge closes courtroom in Nodine trial to cameras.” These latter are results that would have . . . [more]

The nomenclature of a contract can subtly alter the relationship between the parties. The choice of particular words can create tension when exercising the provisions containing them simply because of how they sound, and what impression those words make in the mind of the reader. The legal effect can be identical, but a subtle psychological bias can be introduced by selecting loaded words as definitions or terms. This bias can be reinforced by using the notice provisions of the agreement to influence whether a notice is communicated, and how it is communicated.

Consider a scenario where a first party is . . . [more]

We have a new law in Canada, or we will when it received Royal Assent. Bill C-31, An Act to amend the Old Age Security Act, made it through the House of Commons and the Senate.

SUMMARY
This enactment amends the Old Age Security Act to preclude incarcerated persons from receiving benefits under this Act while maintaining entitlement to benefits for, and avoiding a reduction in the amounts payable to, their spouse or common-law partner under this Act.

Thank heavens that our minority government could all agree that Canadians would feel better to know that if you make it . . . [more]

The Florida Bar Association has recently published a professional ethics opinion on the duty of lawyers to ‘sanitize’, i.e. erase the memory of, storage media such as printers, copiers, scanners and fax machines.

The opinion explains why such devices even have memories; some of the older among us may not think of them as that smart! It also notes a duty to supervise staff whose job it may be to clear out the memories of these devices before the devices are returned to lessors, or sold, or even just scrapped.

I see that the Law Society of Upper Canada’s ‘technology’ . . . [more]

Section 12 of the Copyright Act gives the Crown copyright in any work “prepared or published by or under the direction or control of Her Majesty or any government department…” This broad sweep is considered, by the federal and provincial governments at least, to include court and tribunal judgments and legislation. The issue of whether this is appropriate or not has been somewhat finessed (albeit in a question-begging way) so far as federal legal material goes by the 1998 Reproduction of Federal Law Order SI/97-5 providing that:

Anyone may, without charge or request for permission, reproduce enactments and consolidations of