Smarter, Faster, Better

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In Smarter, Faster, Better Charles Duhigg writes about the secrets of productivity in life and in business. Below are a list of some intriguing insights:

  1. In a study by MIT, the researchers noticed that the most productive workers in firms shared a number of traits. The first was that they tended to work on only 5 projects at a time. This gave them the time to master new skills associated with each project. Second, these workers shared an intellectual and conversational tic. They loved to generate theories on why things worked/failed, why workers were happy/disgruntled, how managerial styles influenced employees and so on. They were obsessed with trying to explain the world to themselves and to others.
  2. In trying to achieve larger goals, break them down into smaller pieces. And work towards achieving the smaller steps on the way to reaching the larger goal. Give the smaller goals a timeline. For example, if you are trying to run a marathon, break it down into a specific subgoal. (e.g. Run seven miles without stopping). Then ask yourself how you will measure success of the subgoal and if it is achievable.
  3. “You have to be comfortable not knowing exactly where life is going to go. All we can do is learn how to make the best decisions that are in front of us and trust that over time the odds will be in our favour.”
  4. Creativity often comes from borrowing one idea from one field and applying it to another. This generally comes about by people reflecting on their experiences and paying attention to what problems look like. And then looking to see how similar problems have been solved before.
  5. The people who are most successful at learning take the data thrown at them and do something with the information. For example, learning a mathematical formula and practicing applying the math problem allows us to learn it better. Reading a book and taking notes on it helps us sort and retain the information better.
  6. To make better decisions, envision multiple futures. By imagining various possibilities, you’re better equipped to make wise decisions.

Critiquing the Judicial Narrative

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In Abdulaali v Salih, 2017 ONSC 1609, Justice Pazaratz controversially wrote:

  1. The next time anyone at Legal Aid Ontario tells you they’re short of money, don’t believe it.  It can’t possibly be true.  Not if they’re funding cases like this.
  2. The facts are simple.  There are no complicated legal issues.  Hardly worth a written endorsement, really.
  3. But every now and then taxpayers ought to be told how their hard earned dollars are spent.
  4. The Applicant wife is 32 years old.  She came to Canada from Iraq five years ago.  She has never worked in this Country.  She receives monthly assistance from the government through the Ontario Disability Support Program.
  5. The Respondent husband is 43.  He came to Canada from Iraq seven years ago.  He has never worked in this Country.  He receives monthly assistance from the government through the Ontario Disability Support Program.
  6. They met in Canada.  They were married here on September 19, 2014.  They separated five months later on February 6, 2015.
  7. They have no children.  No jobs.  No income.  No property.  Nothing to divide.
  8. It should be a simple case.
  9. They appeared before me March 9, 2017 both wanting a Divorce.  Again, simple enough.    
  10. But the matter was contested because the Applicant wife also wanted a restraining order against her husband.  He opposed the request…

Many are saying that Justice Pazaratz crossed the line. First by commenting on the use of government resources. And second by implying that the parties were unworthy of legal aid. (I agree that Justice Pazaratz crossed the line on commenting on matters beyond the issues between the parties. )

But at what point does criticism of judicial commentary take on a chilling effect?

Regardless of political leanings, judges should be allowed to comment on the implicit premises their cases touch on.

The law does not operate in a vacuum. All decisions have political statements hiding beneath the surface. Whether it be assumptions about how property should be held, what equality means, how gender should be expressed, how government programs should be funded and so on. So to make the implicit explicit is to breath openness and honesty into judicial writing.

Judges should be honest about the real reasons behind their decisions.

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

Commentary on the “Unintended Consequences: The Regressive Effects of Increased Access to Courts”

In “Unintended Consequences: The Regressive Effects of Increased Access to Courts“, law professors Anthony Niblett and Albert Yoon analyzed users of the small claims court system. In 2010, the small claims court’s jurisdiction increased from $10,000 to $25,000. When Niblett and Yoon examined if that change increased access to the courts, they found a paradoxical result.

Niblett and Yoon looked at the postal codes recorded with the court and compared the postal code data to data from Statistics Canada. Following the change in the court’s jurisdiction, they found that the plaintiffs were on average from richer neighbourhoods. Household income increased from $80,052 to $82,868.

“As plaintiffs increasingly come from more affluent neighborhoods after the jurisdictional change, we also observe that defendants come from more affluent neighbourhoods after 2010. This trend is similarly true of both individuals and business defendants.”

Further, after the change in jurisdiction, over 30 percent of all claims filed alleged damages in excess of $10,000. Below is a chart of the average amount claimed per year:

2006 $3,174
2007 $3,385
2008 $3,647
2009 $3,593
2010 $6,704
2011 $6,852
2012 $7,055
2013 $7,011

As a result of the increased amounts claimed, Niblett and Yoon suspect that more complex cases have infiltrated the small claims court system. This in turn has increased the backlog. “Cases now take longer to be resolved. Cases are heard first-come, first-served, with no preference for expediting “very small” claims.”

In my opinion, the demographics revealed in this report are consistent with a pattern. Groups that are often forced to deal with the judicial system (e.g. through criminal proceedings) tend not to be the groups that choose to engage with the court system. We frequently see marginalized groups disproportionately represented in prisons but do not see those same groups voluntarily resolving family or civil disputes through the courts. Revealing that although our courts are technically open to all, in actuality they are not.

Sometimes it seems that not much has changed since Sir James Matthew (an Irish judge at the turn of the 20th century) quipped that “justice is open to all, like the Ritz hotel”.

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

The Hillbilly Elegy: One Man’s Ploy Into Politics

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In the Hillbilly Elegy, J.D. Vance tells the tale of his struggle to attain the American Dream. From his humble roots of “white trash” (self-described) to Yale law school graduate, Vance paints the story of a home life in crisis. He then extrapolates from his personal experience to comment on the sociological causes of poverty.

Although touching at times with some poignant insights, this memoir reeks of white, male privilege. Vance recognizes his privilege in passing. But his acknowledgement rings hollow, especially as he compares his plight to that of impoverished black Americans.

Vance is a tall, attractive, white, Christian, heterosexual, healthy, able-bodied man. He can walk into any room and command an audience by virtue of these characteristics. A privilege that he comments on, more for lip service and optics, than for anything else.

Rather the narrative is constructed perfectly and tactically for a future career in politics (my prediction). At its core the narrative is simple – a must for any political campaign. He worked hard. He escaped poverty. He enlisted in the army. He went to Yale. He got married. And he clerked for a judge.

Now at 32 years of age, he feels empowered to tell you what’s wrong with America. No doctorate needed. Just personal experience.

Vance explains why his people are poor:

“We spend our way into the poorhouse. We buy giant TVs and iPads. Our children wear nice clothes thanks to high-interest credit cards and payday loans… We spend to pretend that we’re upper middle class… Our homes are a chaotic mess. We scream and yell at each other… At least one member of the family uses drugs… We don’t study as children, and we don’t make our kids study when we’re parents… We choose not to work when we should be looking for jobs… We talk to our children about responsibility, but we never walk the walk… Our eating and exercise habits seem designed to send us to an early grave…” [Emphasis added.]

There are kernels of truths in his statements. But his under-valuing of the systemic roots of poverty goes to show how deep his own luck and privilege runs. Poverty has nothing to do with iPads.

Not everyone can just pick themselves up by their bootstraps and attain the American dream.  Systemic barriers run deep.

 

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

Can Algorithms Save the Courts?

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Algorithms are behind the most sophisticated kidney exchange programs in the world. In Canada, the Canadian Blood Services has built a national Living Donor Paired Exchange Registry. The Registry helps incompatible living donors receive a kidney transplant.

Pairs are matched by comparing the medical information from all pairs in the database and by identifying pairs that might be able to exchange donors. The Registry may also identify a series of pairs that could exchange kidneys in a chain like fashion.

As you can imagine pairing kidney donors can become quite complicated. Algorithms help untangle the madness. Algorithms are a process or set of rules to be followed in problem-solving operations.

We are constantly bemoaning the lack of resources funneled to the judiciary. Perhaps algorithms can be created and applied to stretch the limited resources of our courts, from matching judges to courtrooms, cases to judges, etc. in an efficient way. And also by creating algorithms to decide simple disputes that are regularly before the courts and tribunals.

For example, common interlocutory motions or types of small claims can be solved by using algorithms.  Ideally, the algorithms would be run by computers, reducing the amount of resources required in the long run.

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

Once a Lawyer Always a Lawyer?

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On February 20, 2017 law professors from across the United States filed a disciplinary complaint against Ms. Kellyanne Conway. Ms. Conway is currently a suspended lawyer due to her failure to pay fees to the District of Columbia Bar.

In the disciplinary complaint, the professors cite several instances of misconduct by Ms. Conway, including putting forth alternative facts about the size of Mr. Trump’s inauguration crowd.  They argue that “[i]f Ms. Conway were not a lawyer and was ‘only’ engaging in politics, there would be few limits on her conduct outside of the political process itself. She could say and do what she wished and still call herself a politician. But she is a lawyer…”

Under Rule 8.4(c) of the DC Rules of Professional Conduct, it is professional misconduct for a lawyer to engage in conduct that involves dishonesty, fraud, deceit, or misrepresentation. The professors then go on to argue that lawyers in public office have a higher obligation to avoid conduct involving dishonesty, fraud, deceit, or misrepresentation than lawyers outside public office.

In “Government Lawyers in the Trump Administration”, W. Bradley Wendel states that while any government official must take an oath to support and defend the Constitution, lawyers have additional obligations. There is a fine line “between doggedly seeking a lawful solution to the problems facing a President and his administration, on the one hand, and assisting government officials in conduct that is unlawful, on the other”.

It appears that Ms. Conway has crossed a line. After all, his goals are her goals. His message is her message.

But does it make a difference that she crossed the line while not actually practicing law? And, what would the punishment be? She’s already suspended.

Hopefully, the complaint does not turn into a circus show.

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

Power

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

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

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

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

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

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

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

Candid Conversations with Supreme Court of Canada Judges

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

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

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

 

 

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

The Weaving of Two Tales

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

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

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

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

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

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

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

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

 

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

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

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

None is too Many

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

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

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

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

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