Analyzing Court Decisions According to Judges

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“Law is reason free from passion.” – Aristotle

As a precedent based system, law lends itself nicely to predictive analytics. In predictive analytics, historical data is used to build a mathematical model. This model can then be used to predict what will happen next.

As case law becomes easier to access, many companies are developing predictive analytic tools based on case law. Predictive analytics can be focused on different areas of law. For example, predicting the outcomes of cases in employment, tax, insurance, or family law. Another area predictive analytics can be focused on are on the actors. For example, predicting how judges decide cases, how successful lawyers tend to be in court, and the success of repeat litigants.

Recently, France has banned a type of predictive analytics. Article 33 of the Justice Reform Act bans individuals or companies from publicly revealing the patterns of judges’ decisions. Anyone breaking this rule can face a penalty of five years in prison.

Theoretically, it should not matter who hears a case. The law is to be applied the same way. But by banning this type of predictive analytics, France is recognizing that sometimes the judge’s identity makes all the difference.  How do we reconcile identity with a precedent based system?

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

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In Praise of the Honourable Justice Clement Gascon

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Recently, the Honourable Justice Clement Gascon of the Supreme Court of Canada addressed his momentary absence from work on May 8th, 2019.

For over twenty years, I have been dealing with a sometimes insidious illness: depression and anxiety disorders. This is an illness that can be treated and controlled, some days better than others. On the afternoon of Wednesday, May 8, affected both by the recent announcement of a difficult and heart-rending career decision and by a change in medication, I conducted myself in an unprecedented and unaccustomed manner by going out without warning and remaining out of touch for several hours. I can neither explain nor justify what I understand to have been a panic attack, and I wish to apologize most profusely to all those who suffered as a result. This health issue has been taken care of and treated with the necessary medical support. I confirm that I am in good health, and am fully capable of performing my duties as a judge.

Justice Gascon’s remarks are laudable. By being open about his personal health, Justice Gascon has reduced the stigma in our profession around discussing depression and anxiety. Two illnesses which affect many lawyers.

In the CBC article, titled “Successful lawyers more likely to experience mental health problems, Toronto study finds”, the writers note that a University of Toronto study compared two national surveys of thousands of lawyers in both Canada and the United States. “In both countries, researchers found a strong correlation between signs of depression and traditional markers of career success. Lawyers holding down jobs at large firms in the private sector, widely considered to be the most prestigious roles, were most likely to experience depressive symptoms.” The larger the firm, the more lucrative the position, the higher the odds that the lawyer suffered from depressive symptoms. This was partly attributed to the skewed work-life balance at larger firms.

Similarly in the New York Times article, The Lawyer, The Addict, Eilene Zimmerman, discusses the plight of lawyers. Her ex-husband’s death from a drug overdose happened, despite (maybe because of) his success as an intellectual property lawyer in Silicon Valley.

Zimmerman indicates that the heavy stress on him and the pressure to compete, meet client demands, gain clients, all contributed to his drug abuse. “The history on his cellphone shows the last call he ever made was for work. Peter, vomiting, unable to sit up, slipping in and out of consciousness, had managed, somehow, to dial into a conference call.”

Peter’s struggle is not unique. Zimmerman highlights a 2016 report from the Hazelden Betty Ford Foundation and the American Bar Association on substance abuse amongst lawyers. “Over all, the results showed that about 21 percent of lawyers qualify as problem drinkers, while 28 percent struggle with mild or more serious depression and 19 percent struggle with anxiety.”

Professional stress contributes to the rates of substance abuse amongst lawyers. The adversarial process of the opposing side constantly trying to “undo your work” only adds to the stress.

Despite the prevalence of anxiety and depression amongst lawyers, there is a culture of silence. Professor Daniel Angres states in the New York Times article that “Law firms have a culture of keeping things underground, a conspiracy of silence,” he said. “There is a desire not to embarrass people, and as long as they are performing, it’s easier to just avoid it.”

What’s even more troubling is that that the deterioration of lawyers’ health often begins in law school. Zimmerman points out that law students tend to shift their focus in law school. They shift their focus from the value of helping people to extrinsic factors. These extrinsic factors include: grades, honours and potential career income. However, the value of grades, honours, and income have little influence on a lawyer’s overall mental health. In response, law schools are starting to address improving the mental health of their students.

Similarly, as a profession, we are just beginning to break down the “conspiracy of silence” around mental health. I admire Justice Gascon in contributing to the dismantling of this deadly silence.

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

Are the Big 4 Accounting Firms Poised to Dominate Law?

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In Tomorrow’s Lawyers, Richard Susskind predicts that the Big Four Accounting Firms would overtake law firms in the years to come. Susskind explains that the accounting firms were forced to deal with disruption earlier than law firms. In the course of adapting to the disruption, the large accounting firms became more streamlined and became more creative in packaging services. As a result, Susskind predicts that the accounting firms would first begin to dominate law firms by eating into more routine legal work.

Yet again, Susskind’s predictions were correct. It was recently announced that Ernst & Young would be buying a legal managed services business from Thomson Reuters, named Pangea3. The company focuses on document review, contract review, financial trade documentation, and regulatory change management.

As technology improves and more legal service providers enter the picture, it begs the question: “will lawyers be forced to end their monopoly on providing legal services?” I think so.

In the Vancouver Sun, Ian Mulgrew discusses this question, and quotes Profession Gillian Hadfield. Hadfield states that the solution to making justice more affordable is to change the regulations. Hadfield argues that law should be a team sport like medical care. Medical care is provided by a “wide variety of medical professionals: nurses, radiologic technologists, pharmacists. The law should be too.”

Hadfield further argues that “Any solution that makes a dent in the problem will also have to involve expanding the types of people and organizations that are authorized to provide legal help. … [I]t is a major mistake for the legal profession to focus exclusively on how to solve the access problem with more money — public or charitable money — and volunteer pro bono efforts alone.”

As the legal market faces more competition from technology and accounting firms, law societies will be forced to confront who and what types of organizations should be regulated.
(Views are my own and do not reflect the views of any organization. This article was originally posted on slaw.ca.)

Law Depot: A Great New Legal Product

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Through the Toronto Public Library, you can now access a licence to use Law Depot. Law Depot is an online program that allows you to create a free will, employment contract, marital contract, and so much more in a matter of minutes. I recently used it and was very impressed with how easy the program was to use.

For example, to create a will, you answer a few simple questions and the document is formed. It is a great alternative to creating simple documents without a lawyer. However, I note that the employment contact template may be inaccurate.

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I see this type of technology expanding beyond contracts and into pleadings. I could even see the government, eventually having their court forms accessible in a similar way to Law Depot. For example, the user answers a few questions and then the document is created, (e.g. an affidavit, a statement of claim, or a notice of motion). Once the document is populated, it can be filed into an electronic court case.

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

Celebrating the Everyday Lawyer

 

Benchmark Litigation recently posted this list of the top trial lawyers in Canada.

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Twitter was abuzz. Many people questioned the selection of the lawyers. Not over competence. The lawyers selected are all outstanding trial lawyers. But whether a list composed of almost all white men was truly representative and unbiased. IMG_7671IMG_7672.jpgIMG_7673.jpg

In the journal article, “Why Women: Judging Transnational Courts and Tribunals” by Kathryn Stanchi and Bridget J. Crawford, diversity on the Bench is discussed.  In the article, Stanchi and Crawford comment on the selection criteria of judges. They comment that the selection process is tainted by elitism and bias. Their comments about the selection of judges can be applied to the selection of lawyers for awards. In the article, the authors write that:

Federal judges, for example, tend to be chosen from prestigious clerkships and big corporate law firms, two professional enclaves that tend to favor white, wealthy and male candidates. The more than 1300 sitting federal judges overwhelmingly attended Harvard (140 judges) and other elite law schools. These elite law schools – including Yale, Columbia, Stanford, Berkeley, NYU – tend to skew white and wealthy… Every step leading up to that first appointment to the bench – from academic indicators to standardized testing and beyond – embeds race, class and gender bias…

While calling for more “women” in the judiciary may yield a short-term gain, the real work lies in broadening the definition of who is “qualified” to be a judge. That requires open acknowledgment of the biases inherent in the admissions processes that lead to judicial positions: elite law schools, clerkships, prestigious law firms and other gate-keepers. Otherwise, the effort will yield only female judges who “are able to construct a biography that somewhat approximates the male biography…

Why did we think that women would transform institutions without simultaneously — or alternatively — being transformed by them? Why did we believe that women appointed to positions of power would be ‘representative’ of women as a group, rather than being those who most resemble the traditional incumbents and are thus considered least likely to disturb the status quo?” Catharine MacKinnon has long observed that the women who benefit from feminism’s emphasis on formal equality are “mostly women who have been able to construct a biography that somewhat approximates the male norm . . .. They are the qualified, the least of sex discrimination’s victims.”

Stanchi and Crawford recommend that to improve diversity on the bench we should consider people who have faced “discrimination based on race, class, disability, immigration status, gender identity, sexuality or other personal identities beyond biological sex.” 

Similar to the appointment process for judges, we should consider lawyers from various backgrounds in handing out awards. We should celebrate lawyers that perform everyday legal work, and not just award lawyers working on large cases. Helping individuals with everyday matters is just as important and deserving of applause. And should be encouraged. However, the lawyers that tend to work on the sexy projects that get the most attention and award buzz are often the ones that have benefited from a process tainted by bias and elitism. 

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

 

 

The Fight Against the Attrition of Women Lawyers

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“Within 5 years of being called to the bar, 57% of women and 49% of men will have left private practice. Many will move to in-house or government positions, but close to 30% (28% of women and 29% of men) will have left the practice of law entirely.” – Law Society of Alberta (2014): “Retention and Re-engagement Task Force Final Report”

The “Retention and Re-engagement Task Force Final Report” reveals that the number of young lawyers has remained stagnant. There are fewer lawyers between the ages of 31 and 40 practicing in 2010 than there were in 1990. In contrast, the number of lawyers over the age of 60 has tripled in the last ten years.

The attrition of young lawyers is problematic. As the Task Force points out “The private bar in Alberta is losing lawyers who may be among its best a brightest new members to other practice settings and to less stressful work outside of the legal profession.” The primary reasons for leaving practice were: the pursuit of better work/life balance; more rewarding opportunities elsewhere; and dissatisfaction with the practice of law. 

The Task Force reports that “Women were notably less satisfied than men with control over work, credit for work, opportunities for advancement and the mentoring available them.” Interestingly, Ontario studies have shown that the cost of associate turn-over is staggering. The cost of a fourth year associate leaving is estimated at $315,000.

In the CBA article “Why Women Leave“, it was reported that:

In 1993, the Canadian Bar Association published the first national examination of women in the profession and concluded that law firms were not “environmentally friendly” for women and must lose their “maleness” by overhauling a business model that was long ago built by men for men.

The 326-page report, entitled Touchstones for Change, found that women earned less than men, didn’t advance as quickly, and often felt they had to choose between family and career.

Fast forward a quarter of a century and large swaths of the report could still be written today. While men and women graduate from law school and work side by side as associates in equal numbers, three-quarters of law firm partners are still white men, according to the think tank Catalyst.

Most recently, the documentary Balancing the Scales explored five generations of women lawyers over two decades, finding that discrimination has shifted from overt to subtle, but remains ingrained.

Despite the statistics, I am optimistic for the future of women lawyers. In the article “Why is there a gender pay gap in law?“, it is pointed out that many clients are now considering diversity as a metric for engaging law firms. Additionally, as traditional models of work are being shaken up by technology, more people are asking how much of the way we work can be reimagined. “This investigation into the specifics of the gender pay gap by industry feeds into a broader debate: Do we need to work the way we do?

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

 

Incentivizing New Lawyers to Work in Rural Communities

[In Ontario] About 67% of lawyers are over the age of 40 and about half of all lawyers practise in Metropolitan Toronto. The age skew is similar in other provinces, where a notable percentage of lawyers have been practicing for 20 years or more and are entering the latter stages of their careers. The number of lawyers graduating is increasing, but not enough to offset the bubble of lawyers that will likely retire over the coming decades. (“Small communities struggle to pry lawyers from Canada’s big cities, despite promise of jobs” – Mandy Storey for National Post)

There is a need for new lawyers in rural communities across Canada. The federal and provincial governments should be developing a program with law societies to incentivize new lawyers to work in rural communities. A strong incentive could be eliminating or reducing tuition debt in return for working for 5 years in a small community.

There is a similar problem in medicine with respect to access to family doctors. “Health outcomes in Northern Ontario are also worse than in the rest of the province on several measures… ‘The 800,000 people living in Northern Ontario are more likely to have worse health, poorer access to health care, and die earlier than people in other parts of Ontario’ … While some of that difference is due to the ‘social determinants of health,’ access to a family physician or primary care provider was noted to be significantly less in Northwestern Ontario compared to the provincial average.” (“Northern Ontario badly needs doctors. But ‘forcing’ them to work there is no solution” by Sarah Newbery)

In Nova Scotia, the government has implemented compensation packages meant to attract doctors to the city and rural communities. “Among them, the tuition relief program that offers up to $120,000 toward medical school tuition in exchange for a five-year commitment to work in the province. The change in incentives also include a $60,000 family medicine bursary to help create a family practice for three years, and a debt assistance plan worth up to $45,000.” (“Nova Scotia Drops Rural Limits on Incentives to Attract Doctors” by Carolyn Ray – CBC)

In addition to financial incentives, Newbery points out recommendations made by the “Rural Road Map for Action” and the “Summit North 2018” conference. Some of these recommendations could be adopted to new lawyers. The recommendations include:

  • creating more formal clinical care networks among rural clinicians and specialists
  • formalizing mentorship for new-to-practice physicians
  • creating collaborative relationships for community recruitment not just within communities, but across communities
  • creating a regional rural locum pool familiar with the needs of the population and the realities of rural practice that can support local community physicians
  • ensuring access to enhanced skills training for physicians in a timely way based on the needs of the community

The University of Saskatchewan has also studied the issue of attracting young lawyers to rural areas and ensuring adequate training. In the paper “Improving Access to Civil and Family Legal Services in Rural Saskatchewan“, an incubator model to train young lawyers for practicing in rural communities is discussed.

With a concentration on mentorship, the structure of an incubator is generally comprised of one or more principals with a number of participants, who could be student interns, articling students, or practitioners who have only recently been licensed… The incubator experience involves the participants learning the business of running a law firm with the aim that by the time they leave the incubator they will be empowered to successfully implement the practices and values learned in the incubator within their own legal practice.

It is recommended that the incubator be in a hub centre which already serves the needs of a much larger geographical area. Possible sites include La Ronge, Prince Albert, and Moose Jaw.

With the Baby Boomer generation beginning to retire, the need for lawyers in rural communities will grow. Technology will not be able to bridge the gap completely. As mentioned in the paper “Improving Access to Civil and Family Legal Services in Rural Saskatchewan”, access to internet is not equal. “We must remember that there are still many people in Saskatchewan without access to internet or telephones.” I hope that our governments and law societies work together to address the need for lawyers in rural communities.

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(Originally posted on slaw.ca. Opinions are my own and do not reflect the views of any organization.)