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.

How to Stop Our Civil Courts from Atrophying

“To stand by as civil courts continue to atrophy risks jeopardizing the health of our democracy, our economy, and our private law… [W]e must change our ways and work to re-invigorate our public civil courts.” Justice David M. Brown of the Ontario Court of Appeal in “Commercial Litigation in the Next 10 Years: A Call for Reform”

Currently, our courts are hemorrhaging civil cases. Instead of disputes being heard by judges, they are being heard by private arbitrators or tribunals. Oftentimes the reason for this diversion is cost. People proclaim that it is simply too slow and too costly to use our judicial system.

The atrophying of our civil courts means that our democracy pays the price. Democracy only thrives when everyone, including small businesses and individuals, have meaningful access to an independent court. This is because public dispute resolution maintains order in our society and ensures that our laws keep pace with the times. By doing so, it supports the public’s faith our governmental structure.

Tribunals are not a good enough substitute to our courts. Partly because tribunals, as creatures of statute, can be abolished at any time, including at a political whim.

In “A Call for Reform”, Justice Brown offers several strategies for stopping the reduction of our civil courts. In particular, he cites adopting a “Front-End-Assignment-of-Trial Dates” System. Trial dates would be assigned upon the close or deemed close of pleadings. And once assigned, these dates would be carved in stone. I would go one step one further. I would say these trial dates should be assigned upon the issuance of the Statement of Claim and then set in stone.

Forcing people to adhere to a strict timeline incentivizes lawyers to work quickly and not let their cases languish. To incentivize lawyers, Justice Brown recommends that parties be mandated to disclose the documents that they intend to rely upon at trial when they file their claim or defence. By forcing lawyers to think about the trial, we can begin to chip away at the culture that sees the skilled civil barrister as the “motions specialist, [rather than] the final hearing expert”.

To change the order of production and to assign court dates at the beginning of a lawsuit, we need to adopt technology in our courtrooms. “[L]et the light shine in, dispel the ghosts of the past, and have the Bench, Bar and provincial government move ahead to modernise our court technology systems.” Hopefully in doing so, we will move our culture from one that praises the motion specialist over the civil trial lawyer.

Succeeding at Being Original

 

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In Originals: How Non-Conformists Move the World, Adam Grant analyzes what makes an original thinker successful. An “original” is someone who champions novel ideas.

Originals vary in their approaches to risk. Some originals are gamblers. “Others are penny-pinching germophobes.” But to be an original, you ultimately need to try something new. The most successful originals are the ones who take calculated risks. “They … reluctantly tiptoe to the edge of a cliff, calculate the rate of descent, triple-check their parachutes, and set up a safety net at the bottom just in case.”

The best way to achieve an original idea is through quantity. By generating a large pool of ideas, there is a greater likelihood that one of them will be a breakthrough. For example, “[t]o generate a handful of masterworks, Mozart composed more than 600 pieces before his death at thirty-five.”

The best way for an original idea to become dominant is through being a tempered radical. Tempered radicals take their original ideas but soften them to be more acceptable to the Establishment. Often times, they achieve this through making a place in the Establishment and then challenging it from within, or from outside the Establishment and then obscuring the most controversial aspect of their idea.

Perhaps it would be easier for the Establishment to adopt Ontario Court of Appeal Justice Brown’s “5-Point Action Plan” in changing the civil litigation process if aspects of it were sold as just an incremental step forward. For example, in his paper, Justice Brown suggests that documentary disclosure should be completed at the pleading stage. By reframing his plan as simply a change in sequencing, his approach to civil litigation could become more appealing and less shocking to the Establishment.

From Bleak House to The Promise of Online Dispute Resolution

On such an afternoon some score of members of the High Court of Chancery bar ought to be … engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horse-hair warded heads against walls of words and making a pretence of equity with serious faces, as players might…between the registrar’s red table and the silk gowns, with bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports, mountains of costly nonsense, piled before them… This is the Court of Chancery, which has its decaying houses and its blighted lands in every shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard, which has its ruined suitor with his slipshod heels and threadbare dress borrowing and begging through the round of every man’s acquaintance, which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give — who does not often give — the warning, “Suffer any wrong that can be done you rather than come here!

Sadly, the words of Charles Dickens in Bleak House ring true even to this day, where delay runs rampant in our courts, rotting the goal of justice.

It is time that we stop dogmatically accepting delay as an inevitable cost of doing business. Progress in online dispute resolution promises a brighter future, a future where dispute resolution moves quickly and fairly. Two great examples of the promise of online dispute resolution are eBay and the Civil Resolution Tribunal.

Over the years, eBay has processed an impressive 60 million disagreements between buyers and sellers on their site using online dispute resolution. e-Bay has different types of online dispute resolution processes depending on the issue. For disputes about payment, parties are encouraged to reach an agreement amongst each other. e-Bay provides them with advice on how to reach a negotiated settlement, even going as far as explaining how eBay would assess the merit of their complaint. If negotiations fail, the parties enter a discussion area to present their argument. After submissions, an e-Bay adjudicator determines the outcome of their case. All of this takes place online at a quick rate without sacrificing the ideals of justice.

Similarly, in British Columbia, the Civil Resolution Tribunal promises to deliver quick and fair resolutions over an online platform. The Civil Resolution Tribunal intends to be a comprehensive alternative to the traditional court system. The Tribunal uses a platform that incorporates strict timelines and templates for statements and arguments. Parties begin the process by using the tribunal’s online negotiation platform. If negotiations fail, a case manager is appointed to oversea the mediation. If the mediation fails, the parties enter the final stage of adjudication. The adjudication takes place over either an online platform, phone, or video-conferencing.

Although not presently in practice, I am looking forward to watching the Civil Resolution Tribunal blossom. Hopefully, it will be an example of a workable solution that other provinces can follow as an alternative to the traditional, bloated, and slow court system.

For more on online dispute resolution click here: https://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf

(I originally posted this article on Slaw.ca)

The Canary in the Coal Mine

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In many ways the taxicab industry is the canary in the coal mine. Silently ringing the alarm to tell us that technology companies are circling in on highly regulated industries, ready to disrupt them, ready to leave a wreckage at whatever the cost.

The scariest part of it all?

These new technology companies operate outside the law. In Your Profession, Your Future hosted by the Advocates’ Society, Monica Goyal explained that these new start-ups operate outside the law because they simply cannot afford to operate inside the law.

What will happen when new legal start-ups operate outside the law?

Once one of these apps gains marketshare, some law society out there will sue them. These new apps will hire lawyers. These lawyers will bring the inevitable argument: “This is a technology company and NOT the unlicensed practice of law.”

Regardless of the lawsuit’s outcome, law societies will fail to prevent the onslaught of legal services provided by technology companies. Therefore, law societies must begin to regulate actors beyond lawyers.

Currently in Ontario only lawyers and paralegals are regulated. This is concerning considering that the reign of lawyers is ending and the infiltration of new legal providers is beginning.  “Ultimately,.. the disruptive effect of technology will trigger the end of lawyers’ monopoly (“the Great Disruption”, John McGinnis and Russell Pearce).” Given the inevitable triumph of new actors, regulation of all legal providers must occur, from the lawyer all the way up to the big company.

No one, no “thing” should be above the law. Professor Dodek’s remarks in “Regulating Law Firms in Canada” could easily be extended to start-ups and entrenched legal technology companies (e.g. LegalZoom):

Ultimately, law societies should regulate law firms because of the fundamental rule of law idea that no one is above the law and that the law applies equally to the most powerful as well as to the weakest in society. Law firms exercise significant power within the Canadian legal profession and within Canadian society. The perception that the most powerful within the legal profession lie outside of regulation has the potential to seriously undermine public confidence in self-regulation of the legal profession. It is not enough to simply regulate the individuals who make up law firms because law firms have an independent existence and identity. Individual lawyers promote their practices to the public through the vehicle of the law firm. The public sees law firms but does not see law firms being regulated.

Dodek’s article: http://bit.ly/1NQZgov

Data Creation: Data Visualization

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It’s been said that “more data has been created in just the last two years than in the entire previous history of the human race, according to the Scandinavian research group SINTEF. ”

With the rise of literacy after the printing revolution and the emergence of the internet-based information society, more and more information is being created and retained in electronic format.

In lawsuits, “e-discovery [the exchange of information in electronic format] has become an uncontrollable burden”, as Justice Myers remarked in Saleh v Nebel, 2015 ONSC 3680 http://bit.ly/1d5ajNm.

A way to alleviate this burden would be to transfer textual data into visual data.  Humans decipher images far faster than interpreting texts, about 60,000 times faster. Steven Pinker, a linguist, states that humans think in images. That is why phrases that conjure up concrete images are far more memorable than abstract sayings. For example: “if the glove doesn’t fit, you must acquit”.

Visuals are so compelling that judges sometimes exclude photographs or videos as evidence in a trial “so as not to inflame the minds of the jurors” (Law of Evidence – Paciocco and Stuesser). After all, an image really is worth a thousand words.

As lawyers, we are inundated with documents and unfortunately mostly poorly written ones at that. I personally would welcome any tool that transforms huge amounts of text into images.

Law Society of Upper Canada: A Call to Arms

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You don’t have to look very far to see that platforms are dominating the Internet. Just look at Facebook, Twitter, LinkedIn, Uber, and PayPal. Twenty years ago none of these companies existed.

Unlike those technology companies, the Law Society of Upper Canada has been around since 1797. The motto of the Law Society is “Let Right Prevail.” On its website, the Law Society states it “has a duty to protect the public interest, to maintain and advance the cause of justice and the rule of law, to facilitate access to justice for the people of Ontario, and to act in a timely, open and efficient manner.”

Currently, the Law Society connects members of the public to lawyers through its inadequate, little known Law Society Referral Service.

How can the Law Society facilitate access to justice if it fails to seamlessly connect members of the public to lawyers AND lawyers to each other?

The Law Society needs to initiate change before change is thrust upon it, like in the taxi industry. The cab companies could have created a platform years before Uber did. However, complacency, government protection, and arrogance kept the industry stagnated. These same forces lull the Law Society into a false sense of security.

As Justice Brown said in Bank of Montreal v Faibish, “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?”

It is only a matter time before we begin to see some sort of platform that successfully connects legal consumers to lawyers gain traction. Perhaps this platform looks like LinkedIn meets Uber.

It is not too late for the Law Society to take control and hire computer developers. The Law Society should not waste time with years of consultations. Instead, they should use the design-thinking method to create a program that easily connects people to vetted Ontario lawyers. All of the hassles attached to using the current Service need to be removed.  The profits from this new service can even go towards funding other equity initiatives.

The Law Society is uniquely positioned to create and deliver an excellent platform. They have the financial resources, political clout, and database to create this platform. And not only can it, but it must.

With great power comes great responsibility. The Law Society of Upper Canada must exercise power today to protect the public tomorrow. I highly doubt that the future Uber of the legal world will be so kind.

Personal Plight Lawyers, Prestige, and Hierarchy

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Noel Semple recently released a fantastic article about “Personal Plight Legal Practice and Tomorrow’s Lawyers.”  He writes: “Personal plight lawyers help people negotiate with and assert legal rights against other individuals, corporations, and state bodies.”

Personal plight work may be the best option for Tomorrow’s Lawyers because many aspects cannot be off-shored or computerized. Individuals usually need someone on the ground to guide them through the legal process, a feat that is difficult to replicate through computers or a call centre.

As the famous artificial intelligence scientist Ray Kurzweil states: “what is hard for humans is easy for computers and what is hard for computers is easy for humans.” For example, toddlers intuitively pick up language but have difficulty with complex algebra. Computers on the other hand are great mathematicians but are unable to understand basic linguistic concepts. Just try asking Siri a few questions that you would ask a two year old.

Although personal plight work may be the safest option for future lawyers, the status of personal plight work deters many people from entering it. The legal profession bestows prestige upon legal work for large corporate clients, leaving a prestige deficit for personal plight lawyers.

Semple adds:

According to the “client-type thesis,” the prestige of different practice areas reflects the prestige of their clients. Because capitalist societies venerate large corporations and their executives, lawyers who work for them bask in the same glory. A second theory of prestige holds that the most “professionally pure” fields-those with the most connection to abstract legal knowledge and the least engagement with “messy” emotional or other non-legal factors-will be considered the most prestigious.’…

Susan Carle suggests that “prestige hierarchies are socially constructed through the transmission of subtle but powerful messages across professional generations.”

But who exactly is transmitting these subtle messages?

Law students tell each other stories that perpetuate the prestige deficit. But who tells the law students? Of course not one entity can be blamed. To quote Foucault “it is produced at every instant, at every point, or moreover in every relation between one point and another. Power is everywhere: not that it engulfs everything, but that it comes from everywhere.”

The power dynamics between lawyers is produced at every instant, in every relationship. Only by acknowledging the hierarchy can we start to reorganize it for the better.

Noel Semple’s article: http://bit.ly/1KjSLsF

Disruption in 2020

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The legal profession is ripe for disruption. All of the hassles involved with litigation and regulatory compliance make the legal landscape an attractive space for inventors.

In the coming decades, we will see scientific principles applied to the practice of law. Hypotheses, metrics, metadata and so on will all be used to create technologies that displace human lawyers.

The change will likely not come from the leaders within the legal profession. Instead, it will come from outside, from someone with a fresh perspective. Maybe some 14 year old right now is about to be the “Mark Zuckerberg” of law in 2020.

At the Legal Lean – Innovating New Models for the Future of Law conference this weekend, there seemed to be a consensus that the $800 billion global legal market is at the beginning of a tipping point. As Mitch Kowalski stated: “we are at the start of the great legal reformation. The Great Restart.”

The practice of law has remained almost the same for hundreds of years. It is quite breathtaking to see lawyers in their robes, knowing that these robes have been donned for hundreds of years.

However, it is disturbing to think about (in the words of Justice Brown) that the legal profession is “treating courts like some kind of fossilized Jurassic Park… [paving the way for the courts to]  become irrelevant museum pieces…” Consequently, the legal profession has paved the way for outside actors to reshape the practice of law.

Bank of Montreal v Faibish: Jurassic Park

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Justice Brown wrote an excellent decision in 2014, where he called out lawyers’ obsession with tradition. An obsession that is quickly making lawyers look out of touch with technology and paving the way for alternative providers of legal services and dispute resolution to take root. Justice Brown stated:

[4]               Providers of music to the public have had to adapt to changes in technology in order to continue to provide their particular service.  Why should courts and lawyers be any different?  Why should we be able to expect that treating 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?

[5]               Our Court must choose: are we a Court of the Past or a Court of the Future?  I vote for a Court of the Future, and therefore I will not accept counsel’s suggestion that the six-week trial for this complex commercial litigation on the Toronto Region Commercial List proceed using both paper and digital information.  I know there are judges available who are chomping at the bit to conduct more e-trials.  Paper must vanish from this Court and, frankly, the judiciary cannot let the legal profession or our court service provider hold us back.  Accordingly, I order that the six-week trial of the Loretta and Brome Actions be conducted as electronic trials.  More than enough time exists before the October 6 start date to organize the trial materials electronically.  I order counsel to provide me with a formal e-trial plan at the June 26, 2014 case conference.

The full case on CanLII: http://canlii.ca/t/g6g0j