Power

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“Power concedes nothing without a demand. It never did and it never will.” Frederick Douglass

The law is intimately connected with power and force. The law legitimizes power and creates it, authorizes force, punishes other types of force, acts through force, and so on.

In the book “The 48 Laws of Power”, Robert Greene catalogues different theories on how to gain power. In the preface he writes that mastering one’s emotions is the single greatest skill to power. “If you are trying to destroy an enemy who has hurt you, far better to keep him off-guard by feigning friendliness than showing your anger.”

He later writes that “without enemies around us, we grow lazy. An enemy at our heels sharpens our wits, keeping us focused and alert. It is sometimes better then to use enemies rather than transforming them into friends or allies”. A reference to President Lincoln’s recommendation that we destroy enemies by making them our friends.

Interestingly, he adds that verbal argument has only one vital use in the realm of power. It is to distract the audience when practicing deception. The book seems to me to read more like a satire. Similar to the Prince by Niccolo Machiavelli.

“Any man who tried to be good all the time is bound to come to ruin among the great numbers who are not good. Hence a prince who wants to keep his authority must learn how not to be good, and use that knowledge or refrain from using it as necessity requires.” – The Prince

(The views expressed in this blog are my personal views and do not reflect the views of any organization)

Candid Conversations with Supreme Court of Canada Judges

On February 6, I had the honour to attend the program “Candid Conversations on the Challenges and Seizing Opportunities in the Practice of Law Today”, held by the Ontario Bar Association. It was an honour to hear from Justice Moldaver, Justice Cote, and Justice Wagner of the Supreme Court of Canada.

Program participants were divided into three groups, and the judges rotated through each group. A multitude of topics were discussed, including career insights and the role of the judiciary. Below are a few interesting comments I heard:

  1. Think outside the box when arguing for a change in the law. Judgments have a shelf life.
  2. Be resilient.
  3. Preparation is key. You can never be too prepared when arguing a case.
  4. To attract business, it is important to be seen in the business community.
  5. Don’t feel stuck in a practice area or firm. There is flexibility. The path of life is filled with the improbable. When one door closes another one opens. It just might be an unexpected door.
  6. There is no certainty in the courtroom.
  7. There are no small cases. Only small lawyers. (reference to the quote – no small parts, only small actors). Every case is important.
  8. You don’t have to have your name in lights to help people get through the morass of laws.
  9. To keep the public’s faith in the judicial system, we have to explain to the public what the courts do, who the judges are, where they come from, and why we do things a certain way. The court needs to communicate with the public. Courts need to be transparent.
  10. The essential ingredient in the judicial system is faith. Without faith in the judicial system, there will be anarchy.
  11. People take news from social media now. We have to update the judicial system’s communication with the public to reflect that.
  12. Lawyers need to be more creative with their fee structures. We are starting see self-represented litigants trickle up to the appellate levels at higher rates.

 

 

(The views expressed in this blog are my personal views and do not reflect the views of any organization)

The Weaving of Two Tales

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Tale as old as time
Tune as old as song
Bittersweet and strange
Finding you can change
Learning you were wrong… – (Lyrics from Beauty and the Beast)

Many cases have both criminal and civil proceedings. It’s a tale as old as time.  But, in SC v NS, 2017 ONSC 353, a twist arose from the two parallel proceedings. In SC v NS, the plaintiff sued the defendant for sexual assault. And while this lawsuit was underway, there was a parallel criminal proceeding in progress.

As part of the documentary discovery process, the plaintiff provided highly confidential documents to civil defence counsel.  Civil defence counsel then gave these documents to the criminal counsel. While at trial, criminal defence counsel used these documents to cross-examine the plaintiff (complainant).

This caused a storm to erupt in the courtroom. Civil counsel had violated the deemed undertaking rule by giving the documents to criminal counsel. And a motion was brought to address the breach of the deemed undertaking rule.

The deemed undertaking rule is the rule that you cannot use information obtained from one proceeding in another proceeding. There are exceptions to this rule, including the exception of using it to impeach the testimony of a witness. In SC v NS, Justice Matheson wrote:

[4] …Unlike the other exceptions to the deemed undertaking, the impeachment exception raises numerous issues and interests, which vary depending on the specific circumstances. The “automatic” approach advanced by the moving party would allow for the undertaking to be entirely or substantially defeated. It is therefore necessary that parties wishing to proceed under the impeachment exception seek directions of this Court regarding how to proceed in the particular circumstances. Ordinarily, that motion would be on notice to the party whose compelled discovery is proposed to be used…

[5] In this case, the moving party ought to have sought directions from this Court, on notice to the plaintiffs, before using the plaintiffs’ documentary productions in the criminal proceeding. The moving party did not do so and therefore failed to deploy the exception properly, breaching the undertaking.

[6] This is not a determination of whether the documents can be used in the criminal trial. This decision relates only to responsibilities under Rule 30.1.01 of the Rules of Civil Procedure. I am not deciding any issue regarding the admissibility of evidence, scope of cross-examination or any other matter regarding the conduct of the criminal proceedings. Those matters are properly decided by the criminal trial judge…

 

 [75] I have significant difficulty with the submission that nothing else was required prior to permitting the use of the entirety of a party’s compelled documentary discovery in another proceeding.  On this approach, a party could hand over the entirety of an opposite party’s compelled discovery to a third party on the mere possibility that there may be a chance to impeach sometime in the future.  I say “mere possibility” not as a comment on the facts before me, but because in the absence of judicial oversight that is what could transpire.  This approach would allow for wide sharing of intensely personal information outside the civil proceeding for which it was produced, secretly, without any notice to the person and people whose private information is being passed around.

[89]           In my view, these issues can be addressed on a motion for directions within the context of a specific situation more easily than they can be addressed in the abstract.  And the directions given may differ greatly depending on the circumstances.  This underscores the need to move for directions in individual cases.

Civil counsel was wrong to provide the plaintiff’s confidential records to criminal defence counsel without a court order. I predict that this case will be heard by the Ontario Court of Appeal. The Ontario Court of Appeal will affirm Justice Matheson’s decision. To rule otherwise would be to gut the deemed undertaking rule and to render it meaningless.

None is too Many

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“None is too many.” That was the famous Canadian response to the question of how many Jewish refugees could enter Canada during the Second World War. During that time, only 5,000 Jewish refugees were allowed to enter Canada, while six million Jews died.

In December 2016, Toronto Jewish Holocaust survivors spoke out about the atrocities in Syria and the need to do more. Holocaust survivor Vera Schiff said: “You see those pictures come out of there with all this heartbreak with those maimed and crying children. It breaks my heart because I can see the replay of those children, of our children which were lined up to be gassed in the camps and the mothers who could not save them.”

Now one month later, President Trump has signed an executive order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States“. The order states: “I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.”

The Order has plunged the world into chaos, strained diplomatic ties, and further fractured the American people. An Article by the New York Times titled “Judge Blocks Trump Order on Refugees Amid Chaos and Outcry Worldwide” tells the story of lives turned upside down by a poorly thought out decree. People worried about returning home to the United States while away on travel. People suddenly denied entrance into the United States after months of being vetted.

Trump’s decree is truly disturbing and is laced with the same xenophobia experienced by Jewish refugees decades ago.

Nasty Women in the Law

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Last week, the Women’s March overshadowed Trump’s Inauguration. So what was it about Hillary Clinton that people found so nasty? What was it that triggered such comments like: “such a nasty woman”?

And what is it about women lawyers that trigger these attacks? Such as: “Marie Henein is a successful female lawyer at the top of her profession. Total bitch.”

In “Nasty Women and the Rule of Law“, Alice Woolley and Elysa Darling analyze this conundrum. They argue that women lawyers face this backlash because being a lawyer requires women to challenge and subvert gendered norms. Women are supposed to be feminine. Being feminine usually means being: affectionate, cheerful, sensitive, soft-spoken, warm, and so on. Contrastingly, being masculine generally means being: a leader, aggressive, ambitious, assertive, analytical, dominant, competitive, and so on. Characteristics that lawyers are generally required to embody.

Woolley and Darling state:

But by acting in this way [masculine], she not only violates our expectations of what women can do, she also violates our standards about what women ought to do…

[W]omen risk being targets of gendered hostility, because being a good lawyer means being a bad woman – it means abandoning or acting contrary to the communal behavior women ought to exhibit, in favor of the agentic values men ought to exhibit. This is particularly so if the woman is an aggressive lawyer, exhibiting the kind of zeal and occasional incivility that the profession frowns upon, since doing so could be considered a violation of a “gender-intensified proscription”.

Interestingly when we look at Hillary Clinton she is often described as masculine. Whereas Ivanka Trump (a power player in her father’s circle) is often described in feminine terms, e.g. beautiful, a good daughter, polite etc. [To read more about Ivanka’s carefully crafted persona click here: INSIDE IVANKA AND TIFFANY TRUMP’S COMPLICATED SISTER ACT. ]

So what’s the solution? How can women lawyers embody traditionally masculine characteristics and avoid all of the nastiness?

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I originally posted this blog post on slaw.ca. I would like to add to my original post by stating that I completely agree with Woolley and Darling’s paper. Women are faced with a backlash and are often punished or called names for exhibiting “masculine” traits. This backlash often occurs for behaviour that no one even notices coming from a man, a treat that I have experienced first hand. Perhaps the only answer is to stay calm and carry on in the face of sexism.

“I would have quit this job a long time ago if I was listening and waiting for people’s approval.”– Marie Henein (Toronto Life)

 

 

 

Civility in the Classroom

Last week I had the honour of guest lecturing at the University of Ottawa law school as the inaugural Cavanagh Williams LLP Practitioner in Residence. The topic was “Ethics in Advocacy”. It was an honour to be a part of the course “Professional Responsibility”.

The lecture began with an introduction of the topic by Professor Adam Dodek. Subsequently, I led a discussion of the principles of professional conduct. The discussion dealt with a variety of scenarios encountered in legal practice. There was a lively debate about how lawyers should handle swearing affidavits, disclosing relevant documents, and preparing witnesses for court (among other things). All scenarios were based on true stories that included ethical dilemmas.

The lecture ended with a group presentation on the meaning of civility and the principles of professional conduct. Of interest was a debate about the case Laarakker2011 LSBC 29. In that case, the lawyer Mr. Laarakker was disciplined by the Law Society of British Columbia for making discourteous remarks online and directly to an Ontario lawyer. Below are the discourteous remarks:

[12] After consulting with the client, the Respondent sent a one page fax letter to the Ontario Lawyer. The Respondent’s letter read:

I have been approached by [the client] with respect to your letter of October 30, 2009. Suffice it to say that I have instructed her not to pay a penny and to put your insulting and frankly stupid letter to the only use for which it might be suitable, however uncomfortably.

It is disappointing when members of our profession lend themselves to this kind of thing. You must know that you are on the thinnest of legal grounds and would be highly unlikely to get a civil judgment against my client. That is aside from the logistics in bringing this matter to court in BC. I am also well aware that by preying on people’s embarrassment and naiveté you will unfortunately be able to pry some money out of the pockets of some of the humiliated parents.

I have notified the local paper of this scam. Save the postage in the future and become a real lawyer instead! You must have harboured dreams of being a good lawyer at one point. Surely bullying people into paying some small amount of money is not what you went into law for.

But then again, someone has to be at the bottom of his class, practising with a restricted license as you appear to be.

Good luck.

[13] Two days before sending the letter, on November 20, 2009, the Respondent posted a comment on the “Canadian Money Advisor” internet blog. The Respondent posted the comment in response to two postings made by an individual who had received a letter similar in nature to the Demand Letter. The Respondent posted on the blog as follows:

I am a lawyer.

This guy is the kind of lawyer that gives lawyers a bad name. He is relying on intimidation and blackmail to get the lousy $500. Don’t pay him. I hate these sleazy operators.

Speaking as a lawyer, he would have little chance of collecting in court. He would have rto [sic] prove that a chiold [sic] was a habitual criminal. As far as an adult is concerned, he has to prove the loss. Also remember this, he has to bring the action in a court near to where the incident took place (at least in BC) Gueuss [sic] what – that ain’t going to happen.

The Law Society of British Columbia fined Mr. Laarakker for his remarks. Apparently it’s distasteful for lawyers to air their dirty laundry in public. The Law Society concluded:

[45] As noted above, the Respondent takes the position that he was allowed, perhaps even compelled, to do what he did in the face of a “rogue lawyer”. Even if the Ontario Lawyer can be considered to be a “rogue”, it is not the Respondent’s place to pursue some form of vigilante justice against that lawyer by posting intemperate personal remarks or by writing letters that do not promote any possibility of resolution of the client’s legal dispute.

[46] Clearly, the appropriate avenue for the Respondent to take would have been to file a complaint either with the Law Society of Upper Canada or the Law Society of British Columbia. Obviously, the Respondent did not take those steps. Thus, by taking actions that he felt were protecting the integrity of the profession, he was achieving the opposite result.

(I personally disagree with the decision. Mr. Laarakker was warning the public about a scam. It was practically a public service announcement. Just because his tone could have been softened, doesn’t mean he deserved to be fined. After all these were questionable demand letters sent to unsophisticated individuals.)

I really enjoyed the class’s discussion on this case. It was interesting to hear the perspectives of students, especially considering that most of them are of the Facebook, Instagram, Snapchat generation.

The day ended with a small lunch with a few students. I had a wonderful experience, and I hope that the students enjoyed it too!

 

 

Suing Apple over FaceTime

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In December 2014, a young child died in a car accident. The culprit: allegedly a distracted driver. The driver was on FaceTime.

The parents of the child are suing Apple for the iPhone’s design. The parents allege that Apple was negligent for not warning users that FaceTime was dangerous “when used or misused in a reasonably foreseeable manner” and by not including technology in the cell phone to disable certain functions while driving.

Does Apple have an obligation to warn users? It is already legislated in most jurisdictions to not use your cellphone while driving. If people need to be warned by Apple about the dangers of FaceTiming and driving, perhaps those drivers shouldn’t be driving in the first place.

The more interesting argument is the technology argument. Is it careless for Apple to not institute features that disable cellphone functions while driving? What is the standard of care to be applied to Apple?

In the statement of claim, the plaintiffs state that the Apple should know or should have known that drivers would be distracted by the features on their iPhones. And that Apple breached its duty of care by failing to use reasonable care in the design and manufacture of the phone by not using the lock-out technology.

This is a novel argument. I predict that Apple will move to strike the claim before filing a defence.

But if Apple is unsuccessful, would this open the floodgates? When Apple / Google / Samsung etc. makes products, what duty of care do they have to their users? Do they have a duty of care to lock-out users while driving? Do they have an obligation to build products that ensure privacy by design? Particularly so that Apps don’t steal data? Is failing to prevent Apps from stealing your data negligent?

The Pursuit of Mastery

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With a new year comes new resolutions. 2017 is no different. But what really motivates us? Is it money, status, fame, or something deeper?
 In the book Drive: The Surprising Truth About What Motivates Us, Daniel Pink writes that deeper motivation comes from the pursuit of mastery, autonomy, and purpose. “The most successful people are not directly pursuing conventional notions of success. They’re working hard and persisting through difficulties because of their internal desires to control their lives and learn about the world and accomplish something that endures.”
Unfortunately, the path to mastery (becoming better at something that you care about) is not lined with daisies and rainbows. As explained by Daniel Pink “Mastery hurts”. It is the product of persistent practice over many years.
But mastery attracts precisely because it eludes. “Greatness and nearsightedness are incompatible. Meaningful achievement depends on lifting one’s sights and pushing toward the horizon.”

Trump & Twitter: Will it ever end?

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After the recent “arms race” debacle on Twitter, it’s anyone’s guess why Trump is allowed to run his own Twitter account. It makes absolutely no sense. The days of tweeting about Rosie O’Donnell are long gone. Now every Tweet, regardless of its significance, is micro-analyzed. At a keystroke, he can set-off a chain of events.

The Tweets appear to be written by him, almost always impulsively. Someone needs to come between him and his Twitter account. Maybe Ivanka? Slate is basically calling her America’s real First Lady.

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The significance of Trump’s Twitter account can be seen on the world stage. Before the United Nations vote regarding Israel, it is said that the Israeli Prime Minister reached out via Twitter to Donald Trump. Soliciting him to intervene in the vote against Israeli settlements.

It’s fascinating to observe social media play such a unique role in global affairs. But also absolutely terrifying. Sometimes policy decisions need more than 140 characters to explain.