Eliminating Waste in Your Law Practice

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In the New York Times article “5-Hour Workdays? 4-Day Workweeks? Yes, Please“, Dr.Newport discusses attempts to change the way we work in the knowledge economy. He gives the example of a German entrepreneur, who put in place a 5 hour workday. Employees arrive at 8am and leave at 1pm. Employees do not work until returning the next day.  “Once you remove time-wasting distractions and constrain inefficient conversation about your work, five hours should be sufficient to accomplish most of the core activities…”

To accomplish the 5 hour workday, employees leave their phones in their bags and are blocked from social media on the company network. Almost all meetings are reduced to 15 minutes or less. Employees check their work email twice a day. By checking emails less, distractions and useless emails are reduced.

Dr. Newport applauds the 5 hour workday. He believes that we should be changing the way we work. Knowledge work is where automobile manufacturing was before Ford streamlined the assembly line. The way we work is convenient and simple but not efficient. Work flows along as an unstructured conversation through the electronic ether.

To believe, in other words, that our current approach to knowledge work — which is brand-new on any reasonable scale of business history — is the best way to create valuable information using the human mind is both arrogant and ahistoric. It’s the equivalent of striding into an early-20th-century automobile factory, where each car still required a half day’s worth of labor to produce, and boldly proclaiming, “I think we’ve figured this one out!”

Further to Dr. Newport’s comments, lawyers may be able to find places to reduce waste. “Lawyers in small firms spend over 40% of their day on non-billable work.” – Gimbal Canada Inc., Lean Practice Management Advisors

At the Ontario Bar Association TECHXpo, Karen Skinner from Gimbal Canada Inc. spoke about reducing waste. She pointed to 8 common sources of waste:

  • defects (missing a filing date, incomplete forms, bad drafting, data-entry errors)
  • extra processing (too much research, triple checking, over-staffing a file, too many drafts of a document)
  • motion (unnecessary travel for meetings, too many keystrokes to find a document, poor office layout)
  • inventory (unanswered emails, filing sitting on your desk, overflow of stationary)
  • transport (sending documents via courier rather than email, using cheques instead of direct deposit, too many approvals or hand-offs)
  • non-utilized talent (under using assistants, lawyers doing administrative work, doing work that could be outsourced  – even to the client)
  • waiting (for people, for information, for printers, interruptions that reduce concentration)
  • over-production (printing too many copies, cc’ing too many people, getting work done earlier than required)

Skinner argues that to reduce waste, we need to see where the waste is. We can see the waste, by mapping out our work processes. Once we see the waste, we can change it.

Skinner also recommends that we take our long To Do List that we have scribbled on a legal pad and turn it into something visual. She recommends  using a matter management board, as seen below:

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(photo courtesy of Gimbal Canada Inc.)

You can use the TO DO, DOING, DONE model for an entire workload, one aspect of a single file, all aspects of an entire file, or work for your firm or group. The DOING section can be further broken down into the individual phases of a task.

There are digital boards that can also allow you to assign tasks, filter by team member, or filter by progress. To learn more go to gimbalcanada.com.

(Views are my own and do not represent the views of any organization.)

 

Small Claims Court Jurisdiction Increased to $35,000: What does this mean for current cases?

 

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Currently, the most someone can ask for in Small Claims Court is $25,000. Beginning on January 1, 2020, the Small Claims Court will increase its jurisdiction from $25,000 to $35,000.

Litigants who started a claim in the Superior Court can seek to transfer their case to the Small Claims Court if the amount sought is worth $35,000 or under.

Under the Courts of Justice Act, section 23, a litigant may transfer their case to the Small Claims Court by: filing with the local registrar of the Superior Court of Justice a requisition with the consent of all of the parties. To succeed, the claim must be for (a) money or the recovery of personal property and (b) the amount claimed must be equal to or less than $35,000. The requisition form can be found on the Ontario Court Forms website.

There is no requirement for litigants to transfer their case. However, plaintiffs have an incentive to transfer their claim to the Small Claims Court if they are seeking an amount for $35,000 or under. Under Rule 57.05, of the Rules of Civil Procedure, the court may order that the plaintiff shall not recover any costs if they recover an amount within the monetary jurisdiction of the Small Claims Court.

I anticipate that if you started your lawsuit but haven’t had your trial yet, you may be able to seek more money, up to $35,000. Under Rule 12 of the Rules of the Small Claims Court, “A plaintiff’s or defendant’s claim and a defence to a plaintiff’s or defendant’s claim may be amended by filing with the clerk a copy that is marked “Amended”, in which any additions are underlined and any other changes are identified.”

Filing and service of the amended document should take place at least 30 days before the originally scheduled trial date, unless, “(a) the court, on motion, allows a shorter notice period; or (b) a clerk’s order permitting the amendment is obtained under subrule 11.2.01 (1).” The Ministry of the Attorney General will likely post a bulletin on this matter in the coming months.

(Views are my own, and do not reflect the views of any organization and are not intended to be legal advice.)

 

 

#LawNeedsWellnessBecause

Recently the #LawNeedsWellnessBecause hashtag was trending on Twitter. Lawyers weighed in on why mental health should be a priority. Amongst the #LawNeedsWellnessBecause tweets, the structure of how lawyers practice was pointed to as a contributor to stress, anxiety, and burnout.

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Despite the structural factors influencing mental health, there is almost an exclusive focus on fixing the individual. In the article “How mindfulness privatised a social problem: The £3.4trn industry encourages a preoccupation with the symptoms of mental illness, rather than their social causes,” Hettie O’Brien in the New Statesman discusses this issue.

O’Brien quotes Purser who argues that mindfulness has become the perfect coping mechanism for neoliberal capitalism. “It privatises stress and encourages people to locate the root of mental ailments in their own work ethic. As a psychological strategy it promotes a particular form of revolution, one that takes place within the heads of individuals fixated on self-transformation, rather than as a struggle to overcome collective suffering.” There is a pre-occupation with the symptoms of stress, rather than overcoming the social causes of stress.

I am not suggesting that mindfulness, medication, exercise, eating well and sleeping well are not important. But when it comes to practicing law, we must also look at the structural factors that create burnout.

There are small ways that we can begin to make changes. For example, Borden Ladner Gervais recently started having an onsite counsellor to help their employees and to help change the conversation around mental health.

At the end of the day, #LawNeedsWellnessBecause “If I am not for myself, who will be for me? If I am not for others, what am I? And if not now, when?” (Famous quote from Rabbi Hillel)

(Views are my own and do not represent the views of any organization. This post was originally posted on slaw.ca)

Ontario Bar Association: Fall Council Meeting

Over the weekend, the Ontario Bar Association held its annual Fall Council Meeting. There were several amazing speakers. President Colin Stevenson spoke about the barriers to innovation and the ways companies are overcoming these barriers.

Barriers to innovation include:

  • The solitary work of lawyers. Lawyers tend to work alone, even in large law firms.
  • Lawyers tend to be risk adverse, and tend to be unwilling to invest in change.
  • Lawyers that are already successful are hesitant to embrace change.

Colin warned that complacency within our legal profession will lead to the obsolescence of lawyers. The Big 4 Accounting Firms are eating into the mid-level transactional work traditionally done by law firms. For instance, EY has invested $2 billion in innovation.

However, through practice innovation, lawyers can also deal with clients more efficiently. He cited examples of innovation by lawyers. For example: 

  • Osler has launched a new service that streamlines estoppel certificate production. 
  • McCarthy Tetrault has launched MT Divisions.
  • Dentons hired an accountant Beth Wilson to manage the Canadian firm. This step shows the professionalization of law.
  • The Legal Innovation Zone at Ryerson University addresses legal needs not well served by lawyers.

At the meeting Attorney General Douglas Downey spoke about the government’s consultations. The government is currently considering whether the estate system should be changed. Right now all estates are dealt with the same way. Meaning the estate of a billionaire is dealt with the same way as an estate worth $20,000. The complex process leaves some smaller estates in limbo. The government is considering providing a simplified procedure for smaller estates.

Acclaimed author and lawyer Andrew Pyper spoke about the importance of narrative. He talked about his writing process. He begins writing a story by thinking of a body of ideas. He then shaves off the things that don’t work until he gets to the core idea.

Pyper recommended that our stories have a main character and that we identify the stakes. By having a main character, the reader becomes invested. The writer must answer why them and why does the reader care about it. By finding the right question, the author tells the right story.

I truly enjoyed the conference and found the topics enlightening.

(Views are my own and do not represent the views of any organization.)

Court Services of the Future: Online Mediation

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In British Columbia, the Legal Services Society has launched a free, online service called “The Family Resolution Centre”. It is part of My Law BC(delivered by legal aid provider Legal Services Society).

The Family Resolution Centre program of My Law BC helps separated couples create parenting plans online. The parenting plans deal with parenting time, vacations, and other childcare needs. Alternatively, couples can request up to five hours of free assistance from a mediator. It is the first service of its kind in Canada. It can be accessed from mylawbc.com under “Mediation Tool”.

Tools like the Family Resolution Centre are a great way to help address the issue of access to justice. Many problems we typically think of as legal problems are really social problems. In the article titled “Access to What?”, Rebecca Sandefur points out that when solving the access to justice problem we need to redefine “access to justice”. Access to justice does not mean unmet legal needs. “Judges and lawyers work at the top of an enormous iceberg of civil justice activity… the access to justice crisis is a crisis of exclusion and inequality, for which legal services will sometimes provide a solution.” Rather addressing access to justice requires us to think of problems more broadly. For instance, thinking of them as issues in relationships, work, or neighbours.

I hope that similar jurisdictions can implement a similar program to the Family Resolution Centre. The program seems to helps people solve their problems simply and in a manner that the public respects.

(Views are my own and do not reflect the views of any organization. This article was originally posted on slaw.ca)

Blockchain Regulation and Governance Course

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Blockchain and distributed ledger technology are considered by experts to be the biggest technological change since the invention of the internet. Since ancient times money has been the domain of governments. Because digital currencies such as Bitcoin are not created by governments as a central authority, and are being increasingly used to transfer wealth, regulators struggle on how to categorize such digital assets.

It is predicted that 10% of the global GDP will be handled by blockchain by 2027. Starting this Fall on September 19th, The Chang School of Continuing Education part of Ryerson University, is offering a course on blockchain regulation and governance.

The course is being taught by Professor Timothy Storus. Timothy Storus is the former Head of Legal and Compliance Department, Chief Compliance Officer, and Chief Anti-Money Laundering Officer at the Bank of China (Canada).  He has held General Counsel positions at various banks and trust companies over the years.

The course is geared towards legal professionals, regulators, and people with an interest in technology, start-ups, and cryptocurrencies. For lawyers, understanding blockchain and the current law will help them advise clients on contracts, securities, and litigation. Examples of current commercial applications of all three typologies will be explored.

Each class will focus on a different aspect of blockchain technology, including:

  • the difference between crypto-currency and traditional money;
  • the uses of block chain technology;
  • utility tokens;
  • security tokens;
  • fraud, theft, and anti-money laundering efforts; and
  • smart contracts.

The course is taught over 12 weeks, from 6pm-9pm, on Thursday nights (starting September 19). To learn more about the course or to enrol click here.

(Views are my own and do not reflect the views of any organization.)

Privacy Rights in the Internet Age and The New Tort of Public Disclosure of Private Facts

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“Society has been scrambling to catch up to this problem [the publication of intimate photos or videos online without consent] and the law is beginning to respond to protect victims.” – Justice Stinson in Jane Doe 464533 v N.D., 2017 ONSC 127

Gradually courts have been awarding damages for the tort of public disclosure of private information. The tort of public disclosure of private information consists of the following elements: (a) the defendant publicized an aspect of the plaintiff’s private life; (b) the plaintiff did not consent to the publication; (c) its publication would be highly offensive to a reasonable person; and (d) the publication was not of legitimate concern to the public.

In Jane Doe 72511 v N.M., [2018] OJ No. 5741, Jane Doe sued her ex-boyfriend for abusing her and for uploading an intimate video of them online. Jane Doe also sued her abuser’s parents for failing to stop the abuse in their home.

One day, after a highly violent encounter, Jane Doe reported the defendant N.M. to the police. “N.M. forced Jane into his car… N.M. grabbed her head and smashed it into the passenger side window. Jane pulled the mirror down and, seeing that she was bleeding, ripped off the sun visor in shock… N.M. was angry that Jane had damaged the car. He parked in the driveway and came around to her side of the car… he dragged her out of the car by her feet and shoved her into his parents’ house.” He was charged and later convicted of assault.

In retaliation for his criminal conviction, N.M. uploaded a video of them engaged in a sex act. The video was seen over 60,000 times and downloaded an unknown number of times. The video has since been removed at the request of the plaintiff.

In deciding the civil suit, Justice Gomery found that N.M. was liable for assault, battery, and public disclosure of private information. He was ordered to pay her $20,000 in general damages for the abuse and $100,000 for the posting of the video online ($75,000 for general and aggravated damages and $25,000 in punitive damages). His parents were also found to be jointly and severally liable for Jane’s damages from the assault and battery as occupiers of the house. As occupiers of the house, they had a duty to take steps to keep her safe while she was there.

In recognizing the tort of public disclosure of private information, Justice Gomery reaffirmed that the courts should provide a civil recourse for victims of public disclosure of private information. Justice Gomery wrote that our courts need to “address a challenge posed by new technology… Failing to provide a remedy in this case would deprive Jane of recourse in the face of the breach of her privacy rights.”

In this case, the website was not sued for the publication of the video. Perhaps the company running the website was outside the jurisdiction of Canada. In which case, the best recourse may be to pressure the company in charge of the domain name registration to disable the site’s web address. (see the NYT article “Shut the Site Down,’ Says the Creator of 8chan, a Megaphone for Gunmen.) However, if there was a connection to Ontario, then courts should be willing to assume jurisdiction and sanction a company in the appropriate circumstances.

In the article “Ontario’s New Invasion of Privacy Torts”, Sarit Mizrahi writes that “the courts should be willing to treat a company’s decision to utilize inadequate security measures as sufficient to engage the tort of intrusion upon seclusion and public disclosure of private facts where the risk of privacy is appreciated.” Malicious users exist beyond revenge porn, including hackers. Hackers can exploit security flaws in our devices to breach privacy rights and disclose private information. For example, hackers can gain access to a television’s microphone and listen in on you in your home; hackers can gain access to a baby monitor; they can access a company’s database of credit cards and release the information.

Mizrahi writes that “While the law obliges these companies to protect the information and devices against unauthorized access, the reality is that the steps taken are often insufficient to abolish the security flaws exploited by malicious users… users are often left without a sufficient legal remedy for this serious invasion of their privacy.” By recognizing a civil right of action, the courts are enabling individuals to enforce their privacy rights.

(This article was originally posted on slaw.caViews are my own and do not reflect the views of any organization.)