Saaditi v Moorhead: Case Comment

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In Medieval Europe, deciding guilt or innocence was sometimes decided by trial by ordeal. It was believed that the holy water would reject a liar. So they would tie up an accused person and throw him in the water. If you floated, you were guilty. If you drowned, you were innocent.

Has the law evolved much further from this barbaric custom? Many think we have.

In Unfair: The New Science of Criminal Injustice, law professor Adam Benforado begs to differ. He points out that the law of evidence hasn’t caught up with neuroscience. That the way we decide cases isn’t always justifiable. And he gives examples of how we are blind to problematic reasoning.

As we uncover the secret world of detectives, judges, prisoners, and others, we will confront challenging questions. What if our legal rules and practices not only are blind to the real influences on human behaviour but serve to actively perpetuate myths that neuroscientists and psychologists have revealed to be false? What if the structures and frameworks of criminal law that we have adopted to eliminate bias actually make matters worse? And if most people are unfamiliar with the complexities of our hidden minds, might there be power players out there taking advantage of this knowledge to stack the cards in their favour at the expense of the weakest?… Do we care that the path through our system is greased for some and tarred for others, owing to the cognitive biases of police officers, jurors, and judges? Does it matter that certain people are disadvantaged front the outset simply because of their structure of their brain or the shape of their face? … Is justice really blind? [Or is lady justice taking in a lot of information and once she has a picture of you, there’s not much you can do to change it?]… We are masters at jumping to conclusions based on an extremely limited amounts of evidence.

Is it time we rethink the way we establish facts in courtrooms? What role should science have in evidence law?

Interestingly, most rules of evidence are based on judicial decisions. Judges making rulings on a set of facts. They are not rooted in science. They are not thought out by bureaucrats. They are not meticulously updated to keep up with scientific developments. In fact, there is a tension between judges and science.

I remember first entering law school, being surprised that judges did not rely on secondary material, like research papers in coming to conclusions. Rather they were restricted to case law and witnesses. But is that justifiable? How should the scientific method influence judicial decision making? Are the senses really enough to judge a case? How should science and law influence one another?

In Saadati v Moorhead, 2017 SCC 28 the Supreme Court of Canada narrowly considered this question. At issue in the appeal was the necessity of medical expert evidence. The trial judge found that a series of motor vehicle accidents caused the plaintiff psychological injuries. However, no expert evidence was put forth to establish the mental injury.

Ultimately, the Supreme Court welcomed expert evidence. But said it wasn’t necessary to prove mental injury. It also wasn’t necessary to confine a mental injury to a psychiatric disorder.

Justice Brown  stated at paragraph 2:

[2]                              This Court has, however, never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so now… recovery for mental injury does not require proof of a recognizable psychiatric illness. [Requiring proof of psychiatric illness is] premised upon dubious perceptions of psychiatry and of mental illness in general, which Canadian tort law should repudiate…

At paragraph 31, Justice Brown states that confining compensable mental injury to a medical condition is “suspect as a matter of methodology”. And that the categories identified as psychiatric disorders are constantly changing and evolving.

Although I agree that lawyers and judges shouldn’t abdicate their critical thinking to hired guns and that it shouldn’t be necessary to adduce expert evidence to show an injury, I strongly believe that we need to rethink the rules of evidence. The rules of evidence and how we apply these rules need to be grounded in science.

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

Are our cellphones violating solicitor-client privilege?

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Are cellphones violating solicitor-client privilege? Probably.

Solicitor-client privilege requires confidentiality between lawyers and their clients. But this confidentiality could be violated by our cellphones. For example, we are frequently downloading apps onto our cellphones. These apps often gain access to our camera, contacts, microphone, and location.

It is not a far stretch to see how an app on a cellphone could be used for a nefarious purpose. Even to blackmail a lawyer.

For example, a cellphone’s microphone can easily be turned on to record conversations, without the user knowing it. Similarly, a cellphone’s email can be hacked. As we are often connecting our cellphones to wireless networks that we are unfamiliar with.

The best way to preempt potential privacy breaches is for cellphones to build in privacy by design. Perhaps with building in a mechanism that alerts users when apps are proposing to gain access to sensitive information, in the moment it is happening. Rather than just a warning hidden in the fine print.

Allowing apps to bury privacy violating features in terms of use that no one wants to read, including lawyers, is ultimately a disservice to users and a potential threat to confidentiality.

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

What makes a business disruptive?

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In the television show Billions, hedge fund manager Bobby Axelrod tells his wife Lara why her business won’t succeed:

Lara: It was a bullshit meeting. Treated me like my business wasn’t ready.

Axelrod: You weren’t ready … What is that you do that you are the best in the world at?

You offer a service – you didn’t invent.

A formula – you didn’t invent.

A delivery method – you didn’t invent.

Nothing about what you do is patentable or a unique user experience.

You haven’t identified an isolated market segment.

You haven’t truly branded your concept …

So why would an investment bank put serious money into it? …

You weren’t ready. 

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So what makes a business attractive to investors? A disruptive business.

In The Innovator’s Solution, Harvard Business School Professor Clayton Christensen explains what makes a business disruptive. He states that a business is disruptive when it gives people access to something that was traditionally out of reach.

Christensen identifies three criteria to a disruptive business:

  1. There is a large population of people who historically have not had the money, equipment, or skill to do this thing for themselves or have gone without it altogether or have needed to pay someone with more expertise to do it for them. AND, to use the product or service, customers have needed to go to an inconvenient, centralized location.
  2. There are customers at the low end of the market who would be happy to purchase a product with less (but good enough) performance if they could get it at a lower price. AND we can create a business model that enables us to earn attractive profits at the discount prices required to win the business of these over served customers.
  3. The innovation is disruptive to all of the significant incumbent firms in the industry.

When it comes to the legal world, an example of a disruptive business that meets all criteria is LegalZoom. LegalZoom allows a new population to access a “good enough” service that was traditionally out of reach. And allows them to access it from anywhere in the world.

So how should traditional law firms react? According to Christensen, law firms should focus on building their core competencies of the future. The core competencies of the future will be specialized legal advice that computers cannot easily replicate.

Christensen warns against “outsourcing your future”. Rather businesses should focus on building tomorrow’s services. “It’s like planting saplings when you decide you need more shade. It’s just not possible for trees to grow large enough to create shade overnight. It takes years of patient nurturing to have any chance of the trees growing tall enough.”

 

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

Legal Pedagogy: Broadening the Conversation

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Richard and Daniel Susskind argue in the Future of the Professions that technology will displace traditional ways of working. To respond to this, our law schools need to go beyond teaching black letter law. We need to embrace inter-disciplinary education. It is not enough to just select students from different faculties. We must also select teachers from different faculties.

Yes, law schools need to teach the fundamentals. Property, contracts, tort, criminal, family, constitutional law, etc. But it’s not enough to just know the basics. Future work demands creativity and breadth of knowledge.

One way to address this problem is to allow students to take extra coursework from a different faculty. It could be done on a pass/fail basis. Another way to address this may be to invite professors from other faculties to teach on related issues.

For example, it always struck me as odd the way law schools teach constitutional law. In constitutional law class, we would go from one case to the other in a matter of minutes,  learning the ratio decidendi from each case. We would gloss over the history, the politics, the philosophy underpinning each case.

The repatriation of the constitution is not a five minute lecture. But what would take classes to go through in a political science class, we sped through in a matter of minutes. Rushing to cram in the rules from each case. And for what? A grade? The bar exam?

I would have loved the opportunity to learn case law along side learning philosophy, history, politics, behavioural economics, women studies, literature, and neuroscience. Law does not happen in a vacuum. Understanding the influences on the development of our laws is important. And asking why our laws look the way they do is equally important.

We need to encourage future lawyers to ask the hard questions. What does equality really mean? What makes something fair? What does rule of law really mean? How do judges and juries really decide cases? Simply teaching for the bar exam is not enough.

What’s the point if students leave school without thinking critically? What good is it for students to focus on regurgitation? The Internet has externalized knowledge. It is what we do with that knowledge that makes lawyers special. By incorporating other disciplines, we can train better lawyers. We can give students the skills to use knowledge differently.

Law schools overvalue teaching black letter law. And I see this as a product of a precedent based system and a culture that overvalues our central executive mode. To quote neuroscience Daniel Levitin “Many creative artists and scientists report that they don’t know where their best ideas came from… In this see-saw of attention, Western culture overvalues the central executive mode, and undervalues the daydreaming mode. The central executive approach to problem solving is often diagnostic, analytic, and impatient, whereas the daydreaming approach is playful, intuitive, and relaxed.”

I hope that with the changes in our profession, we see a change in our schools. That we see our law schools embrace other disciplines and other ways of thinking.

Where Does Memory Come From?

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The human memory is crucial to a trial. It is the essence of a lay person’s testimony. So where does memory come from?

In the Organized Mind neuroscientist Daniel Levitin explains.

When we experience an event, a unique set of neurons is activated. The act of remembering something is a process of bringing back on line those neurons that were involved in the original experience… Once we get those neurons to become active in a fashion similar to how they were during the original event, we experience the memory as a lower-resolution replay of the original event. If only we could get every one of those original neurons active in exactly the same way they were the first time, our recollection would be strikingly vivid and realistic. Remembering is imperfect; the instructions for which neurons need to be gathered and how exactly they need to fire are weak and degraded, leading to a representation that is only a dim and often inaccurate copy of the real experience. Memory is fiction. It may present itself to us as a fact, but it is highly susceptible to distortion. Memory is not just a replaying, but a rewriting.

We have a better time remembering unique events. For example, the memory of locking your front door today may be forgotten. You lock the front door every day, so the experience shares similarities with many other door locking times. Making it easier for the brain to get fooled by competing memories.

However, out of the ordinary events are easier to retrieve. “[T]here is nothing competing with them when your brain tries to access them from its storehouse of remembered events.” Memory retrieval requires our brains to sort through multiple instances and pick out the one we are trying to collect.

Evolutionary wise it makes sense that we have an easier time remembering unique events. We need to register the change in order to maximize our chance for survival.

Additionally, having a strong emotion attached to an event, makes it easier to remember. A strong emotion can consist of being frightened, elated, sad, or angry. These emotions make it more likely that we will remember the event. This is because our brain creates neurochemical tags that accompany the experience. It is like placing a highlighter over the event.

Again this highlighting function makes sense from an evolutionary standpoint. If a strong emotion is linked to the event, it’s probably because we need to remember it for our survival. E.g. the smell of rotten food or being backstabbed by a friend. Unfortunately, even though we may have an easier time retrieving the memory, the “highlighter” associated with emotion doesn’t mean the memory is more accurate.

Memory is fallible.

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

Why Multitasking Doesn’t Work

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The brain seeks out novelty.  And multitasking feeds that addiction.

How many times today did you check your phone while doing something else? Did you just check it? Did you get some “important” text?

In “The Organized Mind”, neuroscientist Daniel Levitin explains that multitasking is an illusion. When we are multitasking, we are really shifting quickly between tasks. We aren’t doing 5 things at once. We are shifting focus between 5 things. And there is a huge metabolic cost to shifting focus from one thing to another.

Levitin explains that multitasking depletes the brain of neurochemicals, making you more tired. Ultimately putting you in a state of aggression. That is why people who focus on one thing at a time accomplish more and are less tired.

Asking the brain to shift attention from one activity to another causes the prefrontal cortex and striatum to burn up oxygenated glucose, the same fuel [the brain] need[s] to stay on task. And the kind of rapid, continual shifting we do with multitasking causes the brain to burn through fuel so quickly that we feel exhausted and disoriented after even a short time. We’ve literally depleted the nutrients in our brain… repeated task shifting leads to anxiety, which raises levels of the stress hormone cortisol in the brain, which in turn can lead to aggressive and impulsive behaviours… staying [on task] uses less energy than multitasking and actually reduces the brain’s need for glucose.

The brain burns glucose the way a car burns gasoline. In an hour of daydreaming, the brain uses 11 calories. (Daydreaming restores the brain’s neurochemicals.) In an hour of reading, the brain burns about 42 calories. In an hour of sitting in class, the brain burns 65 calories.

So why do we love multitasking? The answer is that we are hardwired to love novelty and accomplishment. When we check our phone, we get to see something new. When we send an email, we get to feel a sense of accomplishment. The brain gets a reward of hormones. Levitin explains:

The very brain region we need to rely on for staying on task is easily distracted by shiny new objects. In multitasking, we unknowingly enter an addiction loop as the brain’s novelty centres become rewarded for processing shiny new stimuli to the detriment or our prefrontal cortex, which wants you to stay on task and gain the rewards of sustained effort and attention… The awareness of an unread email sitting in your inbox can effectively reduce your IQ by 10 points, and that multitasking causes information you want to learn to be directed to the wrong part of the brain.

To make matters worst, multitasking requires decision-making, which further depletes the brain’s energy. Do I answer this message now or later? How do I respond to the email? Interestingly, making little decisions can take up just as much energy as making big decisions.

So next time you hear the siren calls of multitasking, don’t be fooled. “Make no mistake: E-mail, Facebook, and Twitter checking constitute a neural addiction.”

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

 

Third Party Funding of Litigation: Hulk Hogan Edition

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“I love my grudges. I tend to them like little pets.” – Big Little Lies 

Funding your lawsuit just got easier. People can now start online campaigns to raise money. Including signing up for Kickstarter, Gofundme, IndieGoGo, and so on.

However, the most interesting source of funding is Peter Thiel. The co-founder of PayPal. In the case of Hulk Hogan versus Gawker, Peter Thiel allegedly funded Hogan’s lawsuit against the media company Gawker. This lawsuit dealt with the publication of Hogan’s sex tape.

Peter Thiel allegedly funded the lawsuit as part of a personal vendetta against the media company Gawker. A vendetta that allegedly started almost ten years earlier, when the company outed him as gay.

As a result of this vendetta, Hogan’s lawyers were allegedly instructed to draft the pleadings in a particular way. Particularly to avoid triggering Gawker’s insurance. Forcing Gawker to fund their own defence and to pay for any judgment against it out of its own pockets.

This tactical manoeuvre was only possible because of Peter Thiel. Had Hogan been required to pay for the lawsuit himself, he probably would have intentionally triggered the insurance coverage for Gawker. And he would have settled the case with the insurer. In order to avoid incurring more legal fees and to guarantee that he would recover some money.

However, by cutting out the insurer,  Thiel could ensure that any judgment against Gawker would be paid personally by the company. Allowing him to bankrupt Gawker. Which he ultimately did when Hogan was awarded around $140 million in court.

As they say, “revenge is a dish best served cold”.

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

Silencing Meghan Markle

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Last month, rumoured future princess Meghan Markle disbanded her social media accounts and closed her lifestyle website. You can see her proudly talking about her website in this Holts Muse clip. As a feminist, her descent into silence disturbed me. Transformed into yet another “princess”, whose power lies in a wave or a smile. To quote Shonda Rhimes in this week’s Scandal:

They don’t give a crap about what you’ve sacrificed to get here, every drop of blood, bead of sweat and fallen tear — they just want to turn you into a figurehead … into some princess whose only power lies in a wave or a smile.

But does joining an institution mean “shuffling off this mortal coil? And only speaking with institutional approval?

The answer appears to be “yes”.

Interestingly, judges in Canada experience a similar pressure. Once outspoken in private practice, their ascendence into the judiciary often means a sacrificing of one’s public voice. A muting of one’s self. A dulling of the critique.

This stands in contrast to the United States. Where judges have social media accounts. Which remain active. Which remain thought-provoking. Which remain civilized. Well after their appointments to the Bench. For an example, see Judge Dillard’s account here: https://twitter.com/JudgeDillard

I believe that our judges should be encouraged to connect with the public, including on social media. When done tastefully, it breathes humanity into an often sterile institution.

At one time, institutions had no choice but to speak through a unified spokesperson. But, the emergence of social media allows for judges, members of established institutions, to have their own voice. And to invite the public into an institution, too often shrouded in exclusivity.

Given social media’s power in connecting us, why should joining an institution – be it the Royals or the judiciary – mean the silencing of one’s voice? Isn’t there enough room to be both an individual and a member of some greater institution? Why all the subordination? How does this type of silence help institutions maintain their relevancy?

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

Living with “Option B”: Sheryl Sandberg’s New Book

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With the rise of social media, everyone’s life on Instagram, Facebook, Snapchat etc. looks perfect. Everyone appears to be living an “Option A”, idyllic kind of life. But life is never perfect. “We all live in some form of Option B. This book [Option B] is to help us all kick the shit out of it.”

Option B triumphs where Lean In never did. Partly due to Sheryl Sandberg’s writing partner, the great Professor Adam Grant at the Wharton School of the University of Pennsylvania.

Where Lean In encouraged women to pursue their ambitions, and basically promised women that they too could have it all. Option B is a more nuanced and thoughtful book.

Option B has the depth that Lean In never did. A recognition that we are not all handed the same deck of cards, and not everyone can lean in all the time. Sometimes health problems, familial obligations, or deaths prevent us from doing so.

Following the death of Sheryl Sandberg’s husband, she was living through a nightmarish Option B. This was compounded by the fact that people weren’t sure how to react to her. Their discomfort was palpable.  People would greet her with the standard meaningless greeting of “how are you?”. She felt like responding, “My husband just died, how do you think I am?” But held back.

Sandberg and Grant write that “All over the world, there is cultural pressure to conceal negative emotions. In China and Japan, the ideal emotional state is calm and composed. In the United States, we like excitement (OMG!) and enthusiasm (LOL!).” American culture demands that we answer positively. We need to be awesome. “Admitting that you are having a rough time is almost inappropriate.”

To counteract this, they encourage us to practice self-compassion. “Self-compassion comes from recognizing that our imperfections are part of being human.”

In addition to practicing self-compassion, Sandberg and Grant recommend that we count our blessings. And That we count our contributions. And that we count our moments of joy.

For example, after the death of her husband, Sheryl Sandberg journaled every night. At first, she was skeptical because she was barely functioning. But she found journalling helpful in managing her grief. Originally she wrote down three things she was grateful for. She later turned to writing down three things she accomplished each day (like getting dressed, focussing in a meeting…). Eventually, she transitioned to writing down three moments of joy, which she continues to do to this very day.

Paying attention to moments of joy takes effort. This is because we are wired to focus on the negatives.

But by focussing on the joyful moments, we can become happier. Happiness is the frequency of small positive moments, and not the intensity.

To bounce back after negative events, we need to avoid three behaviours. (1) personalization – the belief that we are at fault. Sometimes it is not you, it is really them. (2) pervasiveness – the belief that an event will affect all areas of our lives. (3) permanence- the belief that the aftershocks will be forever. Studies have shown that we recover faster when we realize that hardships aren’t entirely our fault, don’t affect every aspect of our lives, and won’t follow us forever.

Resilience comes from deep within us and from support outside. It comes from gratitude for what’s good in our lives and from leaning in to the suck. It comes from analyzing how we process grief and from simply accepting that grief. Sometimes we have less control than we think. Other times we have more.

I learned that when life pulls you under, you can kick against the bottom, break the surface, and breathe again.

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

Court Forms: Confusing by Design

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You name it, there is probably a court form for it. A form for service. A form for requisitioning something. A form for confirming something. A form for costs. A form for a back page. And so on. Navigating these forms requires experience and ideally a law degree. But the increasing numbers of self-represented litigants means that our forms need to be examined. They need to be user friendly.

I have watched countless self-represented litigants struggle with understanding court forms and court processes. All the while, watching government clerks guide them through these forms. And who can blame the self-represented litigants? Does it make sense that you get the forms online, fill them in, then file the form in-person? Does it make sense that the forms do not include rules about service? Does it make sense that the way lawyers count days in Ontario is different than the way everybody else counts a day? Does it make sense that sending someone a document after 4pm equals service on the following day? Does it make sense that serving someone by email is a pain in the a**?  Does it make sense that you go to court to book a date with the court?

But the longer I interact with the system, the less absurd it looks to me. I become more and more desensitized to the structure. I become used to the confusing design of it all. Instead, it begins to look normal. Of course, you don’t count a holiday. Of course, you fax it. Of course, you file it in person. Of course, you need to have the original (even though the whole document was created electronically). Of course it takes years to resolve your claim.

But how does our court system maintain its legitimacy if it remains out of date. If it continues to cling on to paper? If it continues to communicate in legalese? If it continues to process cases slowly? If it puts civil cases on the back burner? If it continues to go on like the Internet is some kind of phase, like a moody teenager.

Why do we think that treating our courts “like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?” (Bank of Montreal v Faibish, 2014 ONSC 2178)

Luckily, it appears that our government is beginning to change things. The Ministry of the Attorney General will be launching an e-filing service in five locations on April 24, 2017.

The Ontario Bar Association announced that “Phase 1 of the service will enable e-filing of the documents required to initiate a civil action in the Superior Court of Justice, auto-issuance of statements of claim and notices of action, and online payment. The pilot will be launched in Brampton, Ottawa, London, Newmarket and Sudbury, with a province-wide rollout to commence later in the year. The second phase of the service will be introduced shortly after the full rollout of phase 1, and will enable the e-filing of additional document types.”

I eagerly await these changes. I hope that the electronic filing assists users with the confusing rules about service. Ideally by incorporating prompts about service in its design and prompts about other rules (like adding a party).

(This is not a sponsored post. Views are my own and do not reflect the views of any organization.)