Cathie.best

Sabrina I. Pacifici's comprehensive current awareness guide focuses on leveraging a selected but wide range of reliable, topical, predominantly free websites and resources. The goal is to support an effective research process to search, discover, access, monitor, analyze and review current and historical data, news, reports, statistics and profiles on companies, markets, countries, people and issues, from a national and a global perspective. Sabrina’s guide is a “best of the Web” resource that encompasses search engines, portals, government sponsored open source databases, alerts, data archives, publisher specific services and applications. All of her recommendations are accompanied by links to trusted content targeted sources that are produced by top media and publishing companies, business, government, academe, IGOs and NGOs.

Let’s start with the value of the case law sources in Canada. The rules are basically simple: two reports enjoy an authoritative status, the Supreme Court of Canada Reports and the Federal Court Reports. They constitute official reports.

Some more commercial reports would have a “semi-official” status, such as the DLR (a list of those is proposed in the McGill Law Journal Guide, which is not itself an authority “de lege”). All the rest of us, Quicklaw, Carswell, CanLII, and the Lexum’s Judgment of the Supreme Court of Canada web sites are used "in practice". In Canada, the practice of the legal research community has become a decisive criteria to assess the worthiness of a source. Without listing again the sources mentioned above let’s say that they have all made their way toward gaining respect from the legal and judicial community.

A last element to take into consideration is that a court may elect to edict a practice rule defining the sources that could be cited to that court. Most courts don’t. In substance, it seems that the adversarial nature of the judicial process goes a long way in protecting the integrity of the documents presented to a court. There are very few cases where doctored documents have been presented to a court. The only one that Lexum is aware of was about the adulteration of a printed judgment over 10 year ago.

The Judgment of the Supreme Court of Canada web site is a Lexum site. Lexum defined its form, color and shape. If, as many users, you don’t like the colors, talk to us, this was our choice. As for the content, the judgments, the press releases and the other Supreme Court documents are directly posted by the Supreme Court of Canada itself. Lexum does all it can to protect their integrity in order to preserve their value. Lexum is extremely proud to be making these documents accessible for free since August 1993. The Supreme Court of Canada material publishing is governed by an agreement with the Court.

Finally, Decisia is somewhat a black box but we prefer to define it as a software as a service, something similar to Gmail if you want (but much smaller!). It is a specialized tool developed to help courts self-publish their decisions at low cost. Courts control Decisia remotely via secure connections and benefit, among other things, from automatic conversion, web pages generation and indexation for searching. Decisia could be attached to court systems through an API or it can be operated directly by the court staff.

Kudos to WestlawNext for adding the Table of Authorities (TOA) feature. The Table of Authorities is a listing of the cases relied upon as authority by a case or other content you are viewing. KeyCite flags & symbols displayed in the Table of Authorities list allow you to quickly verify the validity of the relied-upon authority in the decision. Yellow or red KeyCite flags associated with a reference indicate that you should take a cautious approach to a point of law supported by that reference. The TOA can be a very powerful tool  to determine if you  or your opponent are relying on a case with a hidden weakness. For example, you might wish to rely on a case for a memo you are drafting. The reason you like that case is for one of several legal issues it discusses. The judge in “your” case may have decided that issue based on an earlier decision’s holding on a similar issue. If that earlier decision is later overruled or construed negatively for that particular issue, any later opinion (such as the case you are hoping to use) that relied on that earlier decision is also now affected with regard to that particular issue.

In WestlawNext, access to a case’s Table of Authorities now appears as a tab at the top of a full-text  document (e.g., a case). It is currently available in the following WestlawNext content types:

• Cases
• Law Review Articles
• American Law Reports (A.L.R.)
• Administrative Decisions
• Trial Court Documents/Briefs/Trial Court Orders
• Oral Arguments/Trial Transcripts
• Expert Material
• American Jurisprudence (Am.Jur.)
• Corpus Juris Secondum (C.J.S.)
• Restatements

Students who want help learning to take advantage of the Table of Authorities feature may meet with a Reference Librarian at the Reference Desk in the Law Library or schedule a meeting.

Dramatically changing something that’s used by millions of people daily can be a daunting task. You have to be sure that the new product is smarter, more powerful and friendlier than anything that came before. That’s why we’re so excited about the all new Evernote 5 for Windows; it’s totally different and better than ever.

Get Evernote 5 for Windows Desktop »
The auto-update for existing Windows users will begin within a week. If you don’t want to wait, download now and install.

The New Look

In the years since we first launched Evernote for Windows, a lot has changed in the world of application design. With Evernote 5, we’re embracing modern aesthetics to bring you a beautiful, flat interface that feels at home on multiple versions of Windows. By stripping unnecessary elements, we’ve made it easier to browse and create notes. Anything that might have distracted you from achieving your goals is gone.

Faster Everything

The simpler look isn’t the only thing that makes using Evernote better. We’ve also added new features to help you quickly get to where you need to be.

Shortcuts
At the top of the left panel is the Shortcuts area. Think of Shortcuts as your quick access point for things that you do frequently. Drag just about anything into Shortcuts, including notes, notebooks (personal or Business), tags, and Saved Searches. Shortcuts are great for jumping to notes from recurring meetings, big work or personal projects, travel planning, and more. No need to search or browse.

Better Organization
Below the Shortcuts area, you have easy access to your Notes, Notebooks and Tags. Click on what you want and the right panel switches into that mode. We find that this simplified view provides greater focus on the task at hand. Of course, if you prefer to see your entire notebook or tag list in the left panel, click the triangle to expand that section.

Evernote Business users are able to filter notebooks and tags by either Business or personal, as well as easily convert personal notebooks to Business notebooks.

Reminders

Evernote is as much about collecting your ideas as it about inspiring actions. Reminders are three features wrapped into one. By clicking on the alarm clock, you’ll pin the selected note into the Reminder list at the top of the Note List, create a to-do item for that note and add alarms to make sure your notes are done on time.

Reminders are great for keeping your personal and group projects on track. When you share a notebook with friends and colleagues, they can choose to subscribe to the Reminders in that notebook. When they do, they’ll get alerts about upcoming deadlines.

Improved Notes

One of the big changes you’ll find in Evernote 5 is the way that notes are displayed in the Note List. When you click on the Notes section in the left panel, we show all the notes you have access to in a single list. This includes notes that you’ve created, together with notes from shared and Evernote Business notebooks. The benefit of this approach is that you now see everything that matters without needing to go through multiple steps.

Card View
The new Card View mode displays notes as beautiful square cards, which is a great way to visually scan through your notes, especially ones with images. You can switch among the different view modes from the view selector drop down at the top left corner of the notes panel.

Framing Your Notes
The redesigned Note Editor panel perfectly frames your note to let the content shine. For short notes, the frame stays tight with the bottom giving you a better sense of where the note ends. Double click on a note in the Note List to pop it out for distraction-free reading and composition.

Premium Feature: Related Notes
Our Augmented Intelligence team is devoted to making your notes smarter and your Evernote experience more magical. The Related Notes Premium feature is one of their projects. As you type or view a note, Evernote begins searching your account for items that are similar or related to what’s in the current note. As soon as Evernote finds something, it displays the note at the bottom of the note window. With Related Notes, you won’t waste time repeating work that you may have done years ago or that someone else on your team is doing.

Smarter Searching

One of the great new aspects of Evernote 5 is the dramatic improved search.

• TypeAhead Search: As you begin to type into the search box, Evernote will make predictions based on notes in your account
• Search Shared Notebooks: You can now search inside notebooks that you’ve joined
• Saved Search Shortcuts: You can add a Saved Search to the Shortcuts panel

Your Notes on a Map

If you’ve ever wondered where you were when you had that great idea or delicious meal, the new Atlas view will show you. When you use Evernote on your phone, tablet, and some desktops, the app adds your location to the note data. In the beautiful Atlas view, you’ll see these notes plotted on a map of the world. Jogging your memory has never been easier. Find it in the left panel.

And Much Much More

These are just a handful of the dozens and dozens of new features and capabilities packed into Evernote 5 for Windows. We couldn’t be more excited to hear what you think.

We’re Here to Help

Transitioning to something new can be a challenge, so we’re here to help. We have a number of training webinars coming up in the next few weeks to make sure that you make the move without any issues.

• September 17, 12-1pm PT: What’s New Tour + Live Q&A »
• September 19, 12-1pm PT: For Evernote Premium and Evernote Business Users: What’s New Tour, Discussion with Developers, and Q&A »
• September 24, 12-1pm PT: What’s New Tour + Live Q&A »

We hope you’ll join us for one of these sessions. Also, be sure to check our What’s New page.

Get Evernote 5 for Windows Desktop »
The auto-update for existing Windows users will begin within a week.

The post Evernote 5 for Windows Desktop is Here appeared first on Evernote Blog.

CanLII is continuously improving the quality of its case law collections through the addition of historical cases - on a bulk and targeted basis. For an example of the former, in a multi-year project supported by the Law Foundation of Alberta and the Alberta Court of Appeal, CanLII's Appeal and Queen's Bench collections for that province are nearly complete and now reach back to 1971. For an example of the latter, CanLII had previously expanded its Ontario Court of Appeal collection to include all rulings that eventually reached the Supreme Court of Canada.

With a view to informing CanLII's ongoing efforts, CanLII commissioned a study to determine, among other things, the average length of time a judicial ruling remains relevant and influential. Through analysis of citations by courts of earlier decisions, this study suggests that outside of decisions of the Supreme Court of Canada, the average court ruling will typically cease to referenced by future courts within 3 to 15 years and that fewer than 3% of cases will remain influential beyond 15 years.

The study does not propose a firm target, a clear path or a definitive preference in favour of completeness or tailored approaches. For example, there is virtually no distinction in percentage of "influential" case between the Alberta Court of Appeal (1.6%) and the Ontario Court of Appeal (1.5%) despite the very different ways in which those databases were built up. Nonetheless, the study will be one of many pieces of information that will guide CanLII's editorial policies over the coming year.

The full study can be found here. 

Courtesy of the study author, you can also explore the findings at the case-level or by pitting two or several cases against each other to see a visualization of the influence a particular case has had over time at cite-fight.com

 

According to a study commissioned by CanLII and released today reported cases have varying "life spans" and cease to be important — as measured by their citation in other judgments — somewhere between three and fifteen years. The exception to this are judgments of the Supreme Court of Canada, the average "time to failure" of which is a whopping fifty years.

Citation Analysis of Canadian Case Law by Thom Neale is a full-on informatics study that:

uses simple statistical and functional analysis in conjunction with network analysis algorithms to examine the network of Canadian caselaw using data supplied by the Canadian Legal Information Institute (CanLII). Seeking to explore three basic questions, the study describes the database coverage of CanLII along with that of two commercial vendors and juxtaposes that information with the number of citations to cases decided by courts within each province each year. The study then uses analysis of time-series network rankings for each case to determine 1) the age at which cases in the network typically cease to be important, and 2) what characteristics define those cases that continue to be important despite the passage of time.

Although, as stated above, the average life span of all SCC judgments is fifty years, currently (and perhaps at any given point in time?) only about 19% of all their judgments are still "important" as it were, "where importance is defined as a positively trending pattern of citation for a period of at least 15 years."

The life spans of decisions of the various courts of appeal vary quite considerably, ranging from just under six years for the Ontario Court of Appeal to twelve years for the British Columbia Court of Appeal and sixteen years for the Northwest Territories Court of Appeal. What is at work here, it seems, is the volume of cases generated and the rate of change in the jurisdictions legislation. For similar reasons, I suspect, a mere 3% of BCCA, 1.6% of ABCA, and 1.5% of all ONCA cases are currently "important."

CanLII's brief note on the study says, in part, "The study does not propose a firm target, a clear path or a definitive preference in favour of completeness or tailored approaches."

Interestingly, the study has an appendix listing the "Top 100 Cases That Continue to be Cited Over Time," which, as I understand it, is not quite the same things as the hundred most cited cases. Unfortunately the cases are listed using a CanLII identifier (e.g. 1987canlii67) that doesn't tell you which court gave the judgment and that can't be simply plugged into a URL structure to call up the case itself. I'd like to see CanLII convert the list to a set of usable hyperlinks.

Abstracts of papers and presentations have been posted for LVI 2013: Law via the Internet Conference of the Free Access to Law Community, to be held 26-27 September 2013 in Jersey, Channel Islands.

To see abstracts of individual presentations, go to http://www.jerseylvi2013.org/programme/plenaries-and-tracks/ and under “Tracks,” click on any title, and then on the right screen click on any title.

The conference Twitter account is @JerseyLVI2013

The Twitter hashtag for the conference is #lvi2013

Filed under: Abstracts, Articles and papers, Conference Announcements, Conference papers, Conference resources Tagged: Digital legal publishing, Free access to law, Law via the Internet Conference, Legal educational technology, Legal elearning, Legal informatics conferences, Legal information behavior, Legal information institutes, Legal instructional technology, Legal knowledge management, Legal knowledge representation, Legal metadata, Legal semantic web, LVI, LVI 2013, Online legal education, Online legal publishing, Privacy in court records, Public access to legal information, Semantic Web and law

To understand a broad topic, sometimes you need more than a quick answer. Our research indicates perhaps 10% of people’s daily information needs fit this category -- topics like stem cell research, happiness, and love, to name just a few. That's why over the next few days we’ll be rolling out a new feature to help you find relevant in-depth articles in the main Google Search results.

Now sometimes when you're searching for a broad topic (on google.com in English to start), you'll find a new block of results like the following:


If you care about censorship, you'll find a thought-provoking article by Salman Rushdie in The New Yorker, a piece by our very own Eric Schmidt and Jared Cohen in the Guardian, and another great article about Iran. If you're in the mood for something lighter, search for [lego], you'll find great in-depth articles about many different facets of the topic from gender to engineering to art. For some more examples, check out new search results for population growth, capital punishment and e-waste.

I'm happy to see people continue to invest in thoughtful in-depth content that will remain relevant for months or even years after publication. This is exactly what you'll find in the new feature. In addition to well-known publishers, you'll also find some great articles from lesser-known publications and blogs. If you're a publisher or webmaster, check out our help center article and post on the Webmaster Central blog to learn more.

Posted by Pandu Nayak, Member of Technical Staff

The British Columbia Court of Appeal has published a new Civil and Criminal Practice Note regarding the correction of books filed with the Court. 

Effective August 2, 2013, the Court will no longer allow parties to make changes to filed documents or books by substituting pages or making amendments. 

You can read the procedure for making changes in the full Practice Note. 

Next week marks the 95^th annual meeting of the Uniform Law Conference of Canada in. Founded in 1918, the ULCC is Canada’s oldest and longest serving law reform agency. As set out in its Constitution:

The mandate of the Uniform Law Conference of Canada is to facilitate and promote the harmonization of laws throughout Canada by developing, at the request of the constituent jurisdictions, Uniform Acts, Model Acts, Statements of Legal Principles and other documents deemed appropriate to meet the demands that are presented to it by the constituent jurisdictions from time to time.

The constituent jurisdictions are all provinces and territories and the federal government. Each jurisdiction determines the number of delegates it will send and which delegate will be the official jurisdictional representative for formal voting purposes. As noted on the ULCC’s policy statement delegates are selected to represent a “variety of government lawyers, including legal advisors, legislative policy advisors, legislative drafters and public prosecutors, as well as law reformers, members of the private Bar, both civil and criminal, and members of the academic community.” Participation by judges is also encouraged. In addition, the ULCC is attended by representatives of the American Uniform Law Commission and the Mexican Centre for Uniform Law.

The ULCC meets in two sections – civil & criminal. The work of the sections and various committees is supported by the drafting section. Areas of law under review by the civil section this year include:

• Interprovincial Subpoena Act
• Model Election Amendment Act
• Uniform Commercial Tenancies Act
• Uniform Interpretation Act
• Uniform Vital Statistics Act
• Uniform Wills Act

The civil section will also be discussing the implementation of several international conventions and treaties:

• Convention on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary
• Hague Convention on Service Abroad of Extrajudicial Documents in Civil and Commercial Matters
• UN Convention on Independent Guarantees and Stand-by Letters of Credit
• Uniform Drafting Conventions for the Implementation of International Conventions
• Uniform International Commercial Arbitration Act

Areas of law under review by the criminal section this year include:

• Contradictory Evidence – Recanted Statements
• Mandatory Minimum
• Penalty Exemptions
• Modernisation of Notice Provisions
• Search Warrants

The civil and criminal sections will also meet jointly to discuss the law of missing persons. Most of the topics are likely to result in uniform or model acts that can then be considered for implementation by the constituent jurisdictions. To date the ULCC has adopted over 120 uniform or model acts. Their implementation status is recorded in the ULCC website.

The ULCC’s French website can be accessed in French at http://www.ulcc.ca/fr/accueil .

 You can’t turn around these days without bumping into discussion of MOOC—massive open online courses. At the latest ACLEA (the Association for Continuing Legal Education) meeting, MOOC were the subject of the final plenary. Often the final session of this conference is sparsely attended or wrapped up early in favour of the cocktail hour. This time, though, it was one of the very best sessions; the audience, made up of continuing legal education professionals from across North America and overseas, paid close attention throughout and followed up with many questions.

Our speaker was Tanina Rostain of Georgetown Law. She did an outstanding job educating us about the MOOC phenomenon. The concept really took off in 2012. So far, three providers offer the majority of MOOC: edX, Coursera, and Udacity.

• edX is a non-profit created by Harvard and MIT; its mission is to bring “the best of higher education to students around the world.” They partner with a variety of excellent universities, such as Berkley, McGill, U of T, and Cornell.

• Coursera is also a non-profit, founded by two computer science professors from Stanford. Coursera is also aligned with a number of first-rate universities, such as the University of Edinburgh, Columbia, Brown, and UBC.

• Udacity is a for-profit educational corporation; it grew out of free computer science courses offered at Stanford. It offers courses in business, computer science, design, math, and science. So far, they have 28 courses in their catalogue.

Judith Gaskell recently shared her MOOC experience here on Slaw, and there’s been plenty of media coverage, too, including from the Globe and Mail and the New Yorker. Even Stephen Colbert featured Anant Agarwal, the president of edX, on his show.

MOOC raise lots of issues, especially:

• to what extent can MOOC replace or supplement the traditional university experience?

• can online lectures replace in-person lectures altogether?

• what is the quality of the educational experience?

• how is student engagement achieved?

• what form does student-teacher interaction take?

• what will the effect on existing faculty be?

• what is important about the university experience?

• what’s the business model behind all this?

• is this just another way of collecting data about users (students)?

Do MOOC have a future as part of a legal education? So far, the number of law MOOC on offer is very small: edX offers five law courses, and Coursera offers eight. None of these courses come from our Canadian law schools.

As far as I can tell, much of law school continues to be lectures about substantive law. Are lectures on evidence or constitutional law very different from one Canadian law school to the other?

I can see how having an additional resource —lectures from excellent teachers—would be very helpful for law students. I recall that some profs were famous for their clarity; competition to get into their classes was fierce. Wouldn’t it have been great to access their lectures?

Perhaps MOOC in the core law school topics could be used as the basis of a “flipped classroom” approach. To prepare for a course, students would review an online lecture, which would be followed by in-person tutorials to cover the material more deeply.

One way to look at MOOC is as the latest form of distance education, but with some important differences. The price and the players are different. MOOC offer something exclusive and highly sought after (lectures from excellent universities) to all. And for now, most are offered for free. But the principles of distance education—providing education to learners who aren’t gathered in a classroom—haven’t really been changed by MOOC.

CLE providers around the world have been offering distance education for a long time now. Distance education is an important aspect of our work here at CLEBC. Over the years we’ve tried to deliver courses in a way that could be accessed by all British Columbia lawyers. The concern we heard most often, though, was that continuing professional development was unfairly costly to lawyers outside the Lower Mainland. Not only did they have to pay the registration fee and miss a day of billing, but they also had to pay travel expenses to attend the course.

When the Law Society of BC announced plans to require that all members meet continuing professional development requirements, we began to work intensely to develop the infrastructure to meet the education needs of lawyers throughout BC and level the educational playing field for lawyers who practice outside the Lower Mainland.

Now almost all our live courses are also offered as live webinars. We also offer a webinar archive subscription. If two or more lawyers watch an archived session together, they can claim CPD credit for doing so.

CLE-TV is another of our distance education initiatives. These one-hour online courses are delivered live from our studio and are usually offered at lunchtime. Most have an interview format, with opportunities to ask questions of the presenters through text chat.

We’ve also created our first self-paced e-learning course; this too meets the CPD requirements of BC lawyers. With this option, lawyers can complete an online course at their own pace. These short programs are interactive, with questions interspersed between video clips of a previously recorded CLE-TV program. Most modules provide credit for ethics and practice management.

Could MOOC (or something similar) replace distance education from CLE providers? Given the size of our market in BC (just under 11,000 practicing lawyers), and given that law (and especially practice) tends to be very jurisdiction-specific, it is unlikely that there are enough BC lawyers with common educational needs for mass courses to be developed.

Even so, MOOC may have a significant impact on university education, public legal education, ways of learning, and student expectations. No doubt all of us in the CLE world will be keeping a close eye on the MOOC movement.

The larger legal publishers' 2013 half-year and interim results season was quietly revolutionary. At 80% the issue is done and dusted. The issue that has been plaguing the legal and professional publishing world for decades now can be consigned to history. With a palpable flop over the finish line, you can hear the words ‘largely complete’ panted in an exhausted and rasping whisper. The digital transition is finally finished; honest; no really; trust me – finished.

Looking back over the 15 years it has taken to get here 2 lessons are clear:

1. Readers buy confidence not content; formats are secondary; and
2. The worst way to deal with cannibalisation is to add complexity.

Sadly we knew that back in 1995 too. So: sorry, nothing here about destructive technologies and access to justice (yet). This is unashamed navel gazing for the suppliers to legal services businesses; a critical look at the bookish world of legal publishing, perhaps, but also an intimate one – an insider’s one. I was a publisher, publishing director, head of M&A and more throughout this period. 15 years ago I was one of the guys who had to face the London stock market analysts in the late 90’s and early noughties as they smirked and went home to revise their spreadsheet guesses down. King Content was knee deep in water and getting really quite chilly.

It is easy to forget now that CD format options were the major talking point way back in 1993-5: 20, yes count them – 20 years ago. The backlist and legacy content issues had already been quantified even then, and the plans were being tested then to leapfrog ‘the tech challenge’. The strategy of choice for most publishers during and after Dotcom was to protect revenue streams by conservatively adding on technology options. This meant that:

(a) economies of scale worked against you;

(b) marketing costs doubled (or worse);

(c) clients were confused with complexity in pricing;

(d) the technology solutions that were deployed were usually heavily over-engineered.

This meant ‘winning’ delivered only preserved sales (at best) and halved profitability (if you’re lucky).

The 2013 half year headlines from the big firms illustrate the point.

Analysts expect ‘leaders’ of this scale and global importance here to be doing 4-5% sales growth and 35% profitability:

Informa: PCI division down -4.1% on organic revenues and drops 41% profitability to 27.1%. Digital transition ‘largely complete’ (P18).

Lexis half year results show encouraging overall headlines but -1% in sales in ‘legal’ and profitability at less than half – arguably a third of what it should be at 13.3%. 80% of revenues are electronic and yet print declines still cancel out electronic gains. They blame ‘subdued’ markets, but few analysts will accept this as in effect they are missing 4.7% market growth currently; they are in effect going backwards by at least c5%.

By way of comparison, the Sage group are also in transition, but in the UK they saw 5% growth at half year, albeit weighed down by other EU performances. Profitability is 28.3%.

Thomsons(TRI)’s benchmarks for ‘legal’: 5% largely acquisitive growth (but still +1% organic); research and public sector revenues are declining by 1% typically. Adjusted half year profitability is running at 27.8% for the legal division.

WK’s legal division’s sales were down -2% and profitability of 19.1% (down 3%). Software and transactional revenues were up 8% and software and on-line revenues generally were up 4%. Print declines are -8% and 81% of the revenues are now non-print.

The markets had assumed the transition would be completed within the promised 2-5 year horizons that were initially envisaged. But that was back in 1997. Dotcom intervened; a couple of mini recessions too. Several management cycles elapsed. By 2007 the roof was still not even close to fixed and the sky started falling. So for pretty much all of the past 5-10 years the rhetoric has been about disguising the fact that the digitisation process has pretty much failed. E-learning initiatives were designated ‘electronic’ revenues; package bundling enabled some to say that whole revenue streams suddenly became ‘electronic’. Every trick in the book was deployed to talk up the ‘electronic’ flavour of the business. Playing down the monumentally widening gap between the nature of these businesses and the truly digital Googles, etc was always a mugs game. Analysts weren’t fooled, but the game is still being played out.

Discharging the patient

So now – at last – the digital transition is ‘largely complete’. The legal and professional publishing patient who went into electronic media in the mid-nineties in a blizzard of DTDs and floppy disks is finally to be discharged. It has been a traumatic series of operations. Dotcom almost panicked some into cardiac arrest. The subsequent recessions and slow-downs in the law firm market in ’03 and ’08 set all the machines beeping again; more consultants were clearly required with expertise in everything from project management to social media. But the figures for half way through 2013 show a beleaguered, limping, haggard refugee stumbling to the sliding doors, not the happy smiling BUPA beneficiary we had promised the cynical analyst community.

These firms were the golden boys of the stock market 20 years ago; not so much now. The markets took a sceptical view of ‘Content Is King’ complacency after Dotcom and have simply not believed that the professional publishers could sustain their historically very reliable dividends streams ever since. They have taken divi’s when offered and now impatiently expect cash surpluses to be given back, not reinvested (by them at any rate). Even the conservative ones are actively looking for other safe houses for their portfolios and once gone, are hard to coach back.

Digitisis

I remember a fairly heated discussion with a global executive in Thomson over ten years ago now, where, unless you 'got' the digitisation of content as the holy grail, you were off his map. He had a fair point at the time – given their backlist they had a mountain to climb there, and after the Dotcom storm it was all-consuming: digitise, digitise, digitise or die! The idea that this operation could be a success and the patient still die was unthinkable. Pity really, but as the old joke goes – I could have agreed with him, but then we’d both have been wrong.

Clearly, all you had to do was make the content you'd taken decades to painstakingly build more accessible through digital tools, and Tah Dah! – the second coming was just around the corner. Once you’d replaced the print cost with the digital/electronic one, normality would be restored and product development and enhancement would be ten times easier to boot.

This 'digitisis' mentality infected the professional publishing world so pervasively that it resulted in senior management taking their eye off the ball pretty comprehensively for most of the past decade. The strategic arguments 15 years ago about self-cannibalisation, reinvention, big bang, revolution or evolution were plentiful. But nobody really believed the Encyclopaedia Britannica problem would actually happen to them – lawyers were different, after all.

Thomson and Lexis suffered this 'Digitisis' really quite badly and the symptoms of this disease were pernicious. WK/CCH suffered even more, and most of the second tier legal publishers in the UK fell for the ‘lawyers want paper’ delusion. Wilmington, Informa and Jordans all missed the opportunity just as comprehensively as the big firms.

For some strange reason it missed Complinet and Practical Law Company (PLC) entirely, and it simply did not feature with SAI Global, IHS Global, ECI or Achilles. By now many legal publishers will be saying ‘Who?’. And there’s the rub. The digitisis disease that dominated the professional publishing world for so long had an unforeseen side effect: blindness.

[This is the first of three entries on the legal publishing industry's "digitisis."]

The Canadian Judicial Council (CJC) has published its annual report for 2012-2013.

The CJC was created in 1971. Its role is to improve the quality of judicial service in all superior courts in Canada. It is composed of the chief justices and associate chief justices of Canada's superior courts. The Council is chaired by The Right Honourable Beverley McLachlin, Chief Justice of Canada.

One of its essential functions is to examine complaints concerning the acts of federally-appointed judges.

Among the highlights of the report:

• For fiscal year 2012-2013 (reporting as of 21 March 2013) a total of 138 new complaint files were opened. The total number of complaint files closed for the same period was 131. As of 21 March 2013, there were 44 complaint files under review at various stages of the complaint process.The report summarizes 9 of the complaints.
• As of 21 March 2013, 233 letters were sent to individuals who were seeking clarity on Council’s mandate or who were expressing dissatisfaction with a judge’s decisions or who were complaining about the conduct of an official not within Council’s jurisdiction (ie. provincial judge, master, lawyer). This is an increase from 163 such letters in 2011-12; 114 such letters in 2010-11 and 83 such letters in 2009-10.

Bombardier makes trains and planes. Courts and tribunals make judgments. Decisions are the main product of the judicial activity. Why are then courts not more enthusiastic when it comes to assuming the responsibility to publish their product on their own? The responsibility to run an open court lies with the court itself and today access to digital case law on the Internet can definitely be seen as a requirement of the open court principle.

With regard to self-publishing information, the judiciary has been overtaken by other branches of government, such as legislatures and Queen’s printers. The reliance of courts on external publishers is not a digital era phenomenon. Courts have counted on third parties to publish their decisions for centuries. In Canada, only the Supreme Court and the Federal Courts were publishing official reports themselves. In the US, only about 12 States run court-sanctioned law reporting, due essentially to West winning the competition with courts when it comes to case law publishing. Even when digital publishing became possible, courts and tribunals continued their reliance on the third party. The disclaimer “The decisions of the tribunal are available on QuickLaw” or “chez SOQUIJ” became a standard across the courts’ web.

Fortunately, as Internet technologies became largely available, the barriers to courts communicating directly the product of their work have dissolved. Courts have been tremendously supportive of open access by adopting the neutral citation, by using reproduction-friendly templates and by adopting favourable dissemination policies.

However, even though some initiatives are extremely encouraging, courts and tribunals still hesitate to take ownership of disseminating their decisions by themselves. Here is a brief overview of the situation in Canada based on a rapid examination of over 200 court and administrative tribunal websites.

Close to 60% of courts self-publish and over 40% do not. Among the self-publishers, over 50% have good publishing systems – with convenient browsing and searching – and the balance runs poor publishing sites. At the administrative tribunal level, there are 50% of self-publishers with only one fifth of them offering reasonably good access to decisions. Forgive the simplification, but rest assured that my criteria for good and poor publishing are not very stringent.

What am I asking for? Not much, really. It could be an easy-to-use section of the court website giving access to decisions, full-text search, access to documents in native format and a presentation suitable for people with disabilities. At a later stage, a programmatic access could be offered as well, via a web service for example, similarly to what is starting in other sectors of government. But let’s secure the basics for now.

The benefits for self-posting courts and tribunals are numerous:

• The court/tribunal communicates directly, from its own website, with citizens and stakeholders thereby emphasizing its commitment to openness and transparency.
• The court/tribunal is in a position to quickly post high-profile cases, correct a decision or withdraw an erroneously published one.
• The court/tribunal can devise the resource in a way that best reflects the browsing and searching patterns of users, especially in highly specialized administrative tribunals, for example by assigning topics specific to their core domain.
• The court/tribunal can enhance the resource by adding other types of data, such as webcasts, docket information or help for self-represented litigants.
• And of course, the many benefits accruing from opening the data right at the source…

Let’s finish with a sketchy economic argument. The cost of trial to the taxpayer (not the litigant) is perhaps as high as $20,000, said the Ministry of Justice of Ontario in 1995. I personally think that this amount is underestimated and the figures can certainly vary across jurisdictions, court levels, administrative law domains and methodology used to calculate. The cost of publishing a decision online could exceptionally be in the bottom range of the two digits but most often, for a few extra dollars per case, court and tribunal decisions can be made accessible to anyone to search, read, take, use, add value to, and so on. This is not to say that courts and tribunals cost too much to our societies. It is just that court and tribunal self-publishing online has never been cheaper, yet it is so important for access to law and access to justice. In many cases, it would be a way to leverage the money spent to solve a specific litigation to benefit the whole society.

Ivan Mokanov

[I begin this column with an aside. Because I will be discussing The Canadian Abridgment, the nonpareil of Canadian legal information, I want to give any non-Canadian readers some context. For American colleagues, The Canadian Abridgment (published by Carswell and now in its third edition) is similar to West’s digest system (General Digest, Decennial Digest), with Canadian counterparts of Shepard’s Citations and the Current Law Index included for good measure. The Abridgment’s Australian counterpart is the Australian Digest. The foregoing digest services are all published by that jurisdiction’s local Thomson Reuters law publisher. The closest British equivalent to the Abridgment is The Digest, published by LexisNexis Butterworths.]

It’s been raining a lot in Toronto this summer, so I’ve been thinking about The Canadian Abridgment, and for two reasons. First, this year’s budget planning process was especially long and extracted. I was required to think long and hard about almost everything we subscribe to; and the Abridgment, being by far the single most expensive print subscription we have, was top of the list. My library continues to subscribe to the Abridgment and all its peripherals: the Consolidated Table of Cases (billed separately), Key and Research Guide, Canadian Current Law, Canadian Case Citations, Canadian Statute Citations and the Index to Canadian Legal Literature. Cost is relevant only in the context of value, so I was forced to think about the value of these subscriptions, too; which brings me to the second of my of two reasons for thinking about the Abridgment.

One of my colleagues among the Canadian academic law library directors recently conducted a survey of our libraries to discover who continues to subscribe to The Canadian Abridgment in print and why. Of those of us who responded (and almost everyone did), only one has cancelled its subscription outright. Some have cancelled the “peripherals” but continue to subscribe to the “core” digest service in print. Our two newest members, at Thomspon Rivers and Lakehead Universities, have never subscribed to the Abridgment, though both have complete (though not current) sets, acquired second-hand, on their shelves. But even more interesting than the “who subscribes” question were the answers to “why do you subscribe”.

By far the most common reason for continuing to subscribe to the print Abridgment was that the subscription had simply never been questioned. The general assumption is that a Canadian law library must have the Abridgment in print to be taken seriously. Almost all Canadian law libraries outside of the law schools have rejected this belief, but the academic law libraries hold fast. This is especially curious because half of Canadian law schools no longer teach students how to use the Abridgment in print, providing instruction for the online version only. (All Canadian law schools have access to the Abridgment online through Westlaw Canada’s academic program and instruct students in using the online version.) Myself, I’ve long considered teaching the Abridgment in print to be a waste of effort, given that students will never see it again once they leave the law school. Further, everyone admitted that almost no one ever uses the print Abridgment in their libraries: it sits prominently displayed but ignored on our library shelves.

Were there any positive grounds given for continuing to subscribe to the Abridgment in print? Just about everyone insisted that the print Abridgment is the best and preferred place to start research into historical case law. I qualify this argument by pointing out that, if you cancel your print subscription, you can keep the cancelled set of the Abridgment on the shelf specifically for this for this type of research, without the carrying costs. The cancelled set can also be used for training purposes if you believe that students need instruction in using the Abridgment in print in order to understand the online version.

We at Osgoode continue to subscribe to the Abridgment (so far) for one chief reason: to ensure that we have a complete archive of the Abridgment in print for historical and print preservation purposes. Unfortunately, in light of the marginal utility of the print Abridgment and its increasingly insupportable cost, it’s getting to the point that we can no longer justify this expense, however public-spirited. Given the competition for our library’s steadily decreasing financial resources, a number of our faculty are actively campaigning for cancellation. Ideally, we would be agreed that there is no compelling reason to maintain a print subscription, even for archival purposes, in light of the Abridgment’s digital genesis and imminent reincarnation in WestlawNext.

However, a few of my colleagues did suggest one serious rationale for keeping the Abridgment in print in our public university law libraries; specifically, so that the public, and especially self-represented litigants, might have access to the major digesting service for Canadian law. Now, it’s debatable whether a non-professional would have sufficient understanding of the nature of case law and precedent, or of the concept of digesting case law and the “key number” structure of the Abridgment even to begin to make effective use of it; regardless, the public must be able to access the law in a way sufficient to build an intelligent case when they go to court representing themselves. In the absence of an alternative or ready public access to the Abridgment online, libraries may need to maintain a print subscription to the Abridgment if only to meet this obligation.

I have always argued in support of reported case law and digests of the reported case law. There is so much case law available that any service that eliminates the fat and then digests the meat is desirable and a boon to legal research. I have also argued that print formats of these resources have become irrelevant and insupportable and should be digital only. In my opinion, the beginning of the end for The Canadian Abridgment in print was when, with the support of the Canadian Association of Law Libraries, Carswell began to include digests of “all” Canadian cases, including “unreported” cases in the printed volumes. There is just too much to record, the Abridgment’s structure and updating practices cannot bear the load, and the cost has become prohibitive. For this and other reasons, the Abridgment in print is just not sustainable. But what alternatives do we have?

Canada Law Book’s (now Carswell’s) All-Canada Weekly Summaries (ACWS) for civil judgments and the Weekly Criminal Bulletin for criminal judgments have always been marvellous current-awareness services. But one of the features that makes them shine in the current-awareness role – namely, the user-friendly catchword indexing system and the summary provided for each case – add to their bulk and ultimate clumsiness for research. Also, they share with the Abridgment the disadvantage of digesting “all” cases, not just “reported” cases. This overabundance of case law is a barrier to effective, targeted research. Nor is there any public access that I am aware of to the online version of these services (the BestCase service).

Another, too-often-neglected alternative to the Abridgment is Maritime Law Book’s (MLB) National Reporter System of reported case law and accompanying digest volumes. I know several senior litigators who swear by MLB’s digests, commending not only their quality but also the fact that only reported cases are digested, simplifying their research. They also insist that MLB’s key-number indexing system is superior and easier to use. MLB may be humble but it is an independent, stalwart and often innovative publisher of high-quality law reports and a surprisingly (or perhaps not surprisingly) outstanding digesting service. If the digests are clumsy in print (because the volumes don’t consolidate), this shortcoming is remedied online, where the easy-to-use key-numbering system permits successful, filtered subject access to a focused body of edited case law selectively reported, all by clicking on a key number. What is most amazing is that all of this is made available to the public free on the web through MLB’s “raw law” online service. It’s difficult to see why this solution, readily available to all on the web and seemingly custom-made for public use by non-professionals, is so disregarded.

Like public access to justice, public access to legal information cannot be ignored. In this digital information age, I don’t think our “public” law libraries (law school and law society libraries) are the first place a citizen would think to go to access legal information; and I wonder if our libraries’ maintenance of expensive print subscription services – like published law reporters and law digest services – is justified when these print resources are no longer used by our own “expert” users (students, faculty and practising lawyers), are incomprehensible and effectively inaccessible to the non-expert public, unaffordable, and increasingly unmanageable. I wonder if our continuing subscriptions to these resources only encourage law publishers to continue producing them in print and to neglect the development of more effective digital alternatives. And I wonder if, just as law firm and law school libraries provide access to digital legal resources for our in-house users, we must ensure sufficient digital access is available to the public we have always insisted we serve.

In Canada, we can be proud of CanLII’s outstanding achievement in providing public access to legal information (statutes, judgments and a citatory). But I wonder if we can and should do more to facilitate not just public access to but also public understanding of the law. CanLII’s open-access eText on Wrongful Dismissal and Employment Law is a giant step in this direction. How wonderful it would be if CanLII could also provide subject access (in the form of case digests organized by key topical catchwords or key numbers) to an intelligent selection of significant case law (formerly known as “reported” case law). What a boon it would be to legal researchers, both professional and non, if CanLII could sometimes be more like Maritime Law Book.

So far we've been quiet about the ALM Law Librarians Survey 2013, a survey done of AmLaw 200 law firms each year. The survey results were announced earlier this month, and were officially released at the American Association of Law Libraries conference last Tuesday. I attended the release with analysis by Kevin Iredell, VP of ALMLegal Intelligence. This was the 12th year for the survey, and is typically answered by the head librarian in each firm.

From the related The American Lawyer article by Alan Cohen:

By now, it's a phrase that law firm library directors likely hear in their sleep. "Do more with less" was a mantra through the recession; it guided library strategies and triggered cuts to staff, collections, and physical space. But now it's become more than just a motto—it's standard operating procedure in a fledgling, uneven recovery. The American Lawyer's 12th annual Law Librarian Survey finds that, financial uptick not- withstanding, the pressure to contain costs continues, clients are even more reluctant to pay for research than they were a year ago, and negotiations with vendors—never exactly a festive occasion—are still often contentious.

Jean O'Grady has some excellent analysis of the data in her blog post from July 5th. She says:

In reviewing the data I am struck by the terrific challenge library chiefs face in the current environment. Law firm profits are reviving, lawyers continue to demand the best and most strategic information resources for their practices and yet library chiefs have succeeded in containing costs. The survey give clues how they achieve this. Librarians are sharp negotiators who assess not only price but the comparative value and usability of the content. They also employ sophisticated tools for analysing the ROI for the resources they invest in. These talents are paying off big time for the firms which employ these experts.

Below are my selected notes from the presentation by Kevin Iredell.

Library management and services

Iredell said the results indicate a "greater sense of optimism" for law librarians. Roles are shifting, and there is a greater responsibility for technology. He said the library is doing the training, teaching, and "holding the knowledge" for the various technologies.

Essentially size of the libraries have held about the same, as have who the libraries report to and whether the Library Director is part of executive management (17%, up from 15% in 2012). There was a significant increase in compensation for Head Librarian/Library Director, from approximately $150,ooo in 2012 to $184,000 in 2013. This may be due to increasing areas of responsibility.

What other departments is the head librarian responsible for?

• 58% of libraries are responsible for Competitive Intelligence (Iredell surmised that even if the library is not responsible for CI, they may be supporting this initiative)
• 43% responsible for Knowledge Management
• 28 % responsible for the intranet
• 11% responsible for conflicts checking/client intake
• 11% responsible for records management
• 11% responsible for court services/docketing
• 8% responsible for CLE

He suggested a key initiative for the library should be tracking time and providing ROI numbers for other work that is not billable, such as knowledge management, market research for RFPs and the like.

75% of libraries are doing more work traditionally done by associates (up significantly from 59% in 2012). He indicated this is valuable work, and this change should be communicated to the firm.

This was the first time they have seen an increase in the library budget over the past few years (an increase of 0.5%).

Spending on electronic information and technology

79% indicated no spending on ebooks. Iredell asked the audience why. Audience members speculated:

• AmLaw 100 firms often have a head office in New York City, and they have ebook access through a local service
• ebooks do not work in the lawyers' workflow
• pricing
• ebooks do not fit with the firms' technology

ALM will adjust this question for next year to determine the underlying reasons.

In spending on electronic research, the break-down came as:

• 38% Westlaw
• 27% Lexis
• 6% Bloomberg

23% of firms have moved to a "sole provider" model, and 7% indicated they will be moving to this model.

Iredell noted that in 2011, Westlaw was leading as the sole provider. In 2012, Lexis and Westlaw were neck-and-neck; and now in 2013, Lexis is winning with 54% while West is 46%. He noted that, although Lexis has the marketshare, less is being spent on it. [This implies Lexis has won that increased marketshare with lower pricing.]

Use of integrated library systems broken down:

• EOS – 44%
• Sydney Plus – 16%
• Softlink – 14%
• InMagic – 11%
• SirsiDynix – 4%

Priorities and Challenges

He then discussed comments received from the open-ended questions.

Top priorities for libraries in 2013 include:

• Competitive Intelligence, as well as market research and competition research
• developing research training for lawyers
• eliminate or replace more print products
• expand Knowledge Management – libraries are being asked to expand their roles in this area
• mobile – lawyers are now bringing their own devices to work including iPhones, Androids (such as the Galaxy) and tablets
• reducing budget – renegotiating pricing with vendors, and keeping prices down
• resource monitoring – putting together reliable reports of use to show to vendor as a way to negotiate the pricing

The biggest challenges:

• budget – taking into account staffing, workload, and reduced resources
• keeping up with new technology – such as mobile devices and ebooks

Next year's survey

They will be "tweaking" the survey and will be putting together an advisory board to accomplish this. They have already been asked to create a section on ROI (return on investment), including internal billing.

They also want to expand the survey beyond the AmLaw 200.

The full survey is available for purchase from ALM Legal Intelligence.

 

By way of introduction, my name is Casey Flaherty (@DCaseyFlaherty). I am corporate counsel at Kia Motors America. The opinions I express, however, are my own and not those of Kia Motors America. I was in Seattle for AALL and had a wonderful time presenting with the Queen of Tech, Monica Bay (may her reign be eternal!). Because of the great turnout and superb discussion, our gracious moderator, Steven Lastres, invited us to follow up with blog posts to speak to those who couldn’t make it.

The topic was future trends in law. My completely original conclusion is that many of today’s law school graduates have no future in law and that I may, in part, end up deserving some of the blame. These unfortunate souls are losing the race against the machine, part of which involves the substitution of technology for people in repetitive work—one the four horseman of the new normal. To accelerate this trend, I have developed a technology competence audit (read here, here, here, here, and here; or watch my LegalTech West keynote free here).

My declaration of a general technology deficit among lawyers was not exactly news to the 150+ in attendance. I was simply restating what librarians had been shouting from the rooftops well before any law school made the mistake of admitting me. Beyond my intermittent ability to grasp the obvious, my contribution is a mechanism for holding lawyers’ accountable for this particular category of inefficiency. My hope is to change the incentives just enough so that lawyers start taking advantage of the training that has long been available to them. Basic technology competence is low hanging fruit.

In the audit, I use mock assignments, based on my own stint in BigLaw, to test associates on the basics of standard software—Word, Excel, Acrobat, etc. It has not gone well; they’re 0 for 10. Failure has consequences. I’ve even cut rates 5% across the board unless and until the firms pass a subsequent audit. Distasteful though it may be, punishment is a better motivator than reward, and far superior to cold logic in the face of countervailing incentives. Oh, and since sharing is caring, I’m now collaborating with Suffolk Law’s Institute on Law Practice Technology and Innovation to automate my audit and offer it free to other in-house counsel so they, too, can pressure their law firms to abandon a brute force philosophy.

In short, I am the reckoning. Well, not really, they are the reckoning, I am just a minion. But, as I told the audience, when darkness falls, heroes must rise. Librarians, trainers, CIOs, legal technologists, KM managers, legal project managers, etc. are positioned to be those heroes. You have been working for decades to drag lawyers to a more sustainable place on the Rogers’ Adoption Curve. If they had listened to you, the audit would not need to exist. Now, if you can hold back a gleeful I told you so, you are the ones who will enable your colleagues, your students, your firms, and your schools to weather this minor incursion. The object of the audit is its own obsolescence in the near term. You are the ones who will render it obsolete.

In the meantime, I warn you, that, Steven willing, I will return to these pages to request that you help me before you vanquish me. Behind my collaboration with Suffolk is an admission that getting a J.D. did not make me omniscient or omnipotent (yeah, I’m surprised too; can’t fully wrap my head around that one). Somehow, I failed to gain a monopoly on insight or good ideas. So, very soon, Suffolk and I will be launching a crowdsourcing site where members of the legal community, especially those who have been making this case better than me for longer than me, can contribute to making the audit more robust and comprehensive:

• share your lawyer/technology disaster stories (anonymously);
• identify skills that should be tested;
• offer ideas for how to best test those skills;
• submit declassified legal documents that can be used in the testing;
• suggest other areas that are amenable to an audit approach (e.g., legal research);
• describe the best methods for teaching the skills tested.

The audit, as it currently exists, is far from perfect. The point is that it exists. Done is better than perfect. And the perfect should not be the enemy of the good. The first automated version of the audit will be better but still imperfect. Notice, however, I said “first.” I envision multiple versions and maybe even multiple audits—e.g., specific to types of practice (litigation, transactional, etc.), or different levels (basic, intermediate, advanced), or different topics (legal research, e-discovery). Regardless, the audit concept is unlikely to ever reach its full potential (diminishing returns will kick in). But it still has the opportunity to set off a cascade of change. Clients will make demands of law firms. Law firms will pressure law schools. Law schools will ensure that our children is learning. And we will all live happily ever after in a world of gumdrops and rainbows (ok, maybe not). Towards that end, our intent is to systematically release open source versions of the audit, as well as provide composite data about performance and model training/curricula. These products, however, will only be as good as you make them. The audit succeeds when I stop talking about me and start speaking in terms of we. As I said, Steven willing, I’ll be back to make a plea for your assistance.

Before I leave you to your regularly scheduled program, I did want to provide a delayed reaction to one audience comment that caught me off guard. Though I am paraphrasing, the upshot was that partners will cut a librarian’s time from bills because clients, like me, don’t want to see a librarian’s time on a bill. Candidly, that had never occurred to me. I’ve not been party to such a conversation.

My initial reaction was to think how truly silly that is. In this, I must admit a narrow perspective and a very strong bias. I only worked at one firm, Holland & Knight, before coming in house. I only worked with one librarian, the redoubtable Drea Douglas, who I adored both personally and professionally. She was, by far, the most competent (and hilarious) resource made available to me. There were any number of research-intensive tasks where she could accomplish in five minutes what I, or my associate brethren, would take fifteen hours to complete because she provided a mass-produced wheel while I reinvented it. So it struck me as crazy that anyone would demand I bill time when Drea was patently the proper tool for a job. It would be like me, instead of developing the audit, demanding that outside lawyers continue to treat their computers like a typewriter with a glowing screen.

I do not doubt that such conversations are common (the knowing nods of the audience was all the anecdata I needed). But I do try to be careful about reaching conclusions that rest on the stupidity of my colleagues. I’ve now reflected on it and can empathize. Understandably, clients hate it when overhead shows up on their bills. I require that my lawyers be able to use common software properly. But I do not expect to be billed directly for the software or the training. This audience has probably had similar experiences with clients refusing to pay for Westlaw, LexisNexus, or their competitors. There is a real conversation to be had about what is appropriate to bill directly to clients.

An implicit assumption on one side of the divide is that overhead is already built-in to the exorbitant hourly billing rates. Thus, when overhead shows up, the client feels like they are being double billed. I empathize. I don’t, however, agree. This perspective seems to also assume that lawyers will use their resources wisely. That is, the lawyer is going to enlist the librarian because the librarian is the appropriate resource, regardless of whether the librarian can bill time to the client. As the existence of my audit suggests, this is not an assumption I share. If the librarians are treated like a public good in an eat-what-you-kill environment where public goods are seen only as costs, they will suffer the tragedy of the commons and end up overworked, underutilized, or both. This does not mean that librarian time must all be billed directly to the client. But the value of that time has to be properly recognized, as Latham appears to be doing with KM. Just as, I believe, that lawyers are only going to learn to properly use technology when clients demand it, I also believe that clients would be wise take a keen interest in how and when their lawyers utilize librarians with a presumption towards more often, even if that means librarian time shows up on our bills.

That’s more than enough for now. This post was about to very quickly devolve into incoherent ramblings on alternative fee arrangements, KM, document automation, legal project management, Lean Six Sigma, budget analytics, and host of other important, fascinating, but not so germane topics. I thank you for your time. My gratitude to all who stayed to speak with me, Steven, and Monica in Seattle. I’ll be back to beg for your assistance. For now, keep up the good fight and keep helping us lawyers succeed despite ourselves.

Introducing Casetext

The legal profession is powered by words.  I’ve discussed legal dictionaries on the Web before.  Wolfram Alpha has been expanding its data-oriented search engine with 50,000 new words.  If you’re a regular Wolfram Alpha user, this will be a …

Oh legislation.  How I love the odd and interesting and esoteric nature of delving into your secrets! Today’s Tip is a reminder that legislation passed by elected members can be amended by others if they are given the authority to do so.

I have an example from Alberta, but I have seen this phenomenon in British Columbia legislation as well:

The Fatal Accidents Act at section 8 says:

Damages for bereavement

8(1)  In this section,

(a)    “child” means a son or daughter;

(b)    “parent” means a mother or father.

(2)  If an action is brought under this Act, the court, without reference to any other damages that may be awarded and without evidence of damage, shall award damages for grief and loss of the guidance, care and companionship of the deceased person of

(a)    subject to subsection (3), $75 000 to the spouse or adult interdependent partner of the deceased person,

(b)    $75 000 to the parent or parents of the deceased person to be divided equally if the action is brought for the benefit of both parents, and

(c)    $45 000 to each child of the deceased person.

(3)  The court shall not award damages under subsection (2)(a) to the spouse or adult interdependent partner if the spouse or adult interdependent partner was living separate and apart from the deceased person at the time of death.

(4)  Repealed 2002 cA‑4.5 s36.

(5)  A cause of action conferred on a person by subsection (2) does not, on the death of that person, survive for the benefit of the person’s estate.

RSA 2000 cF‑8 s8;2002 cA‑4.5 s36;2002 c17 s2;2010 c6 s3

The Act also says:

Regulations

10   The Lieutenant Governor in Council may by regulation

                               (a)    change the amounts of damages that may be awarded under section 8(2),

(b)    prescribe the effective date of such change, and

(c)    provide that such change applies only to deceased persons who die on or after a prescribed date.

1994 c16 s6;1996 c28 s17

There IS a Fatal Accidents Regulation, Alta. Reg. 32/2013 that adjusts the amounts of berevement damages prescribed by the act.

Because the regulation changes the act, and this is thankfully abnormal, a researcher may miss these connections.  The connection will be made, but the reference is not (yet) in the Table of Public Statutes. Tables of Public Statutes always have a currency date which should be reviewed, as should the regulation making power of an act that you are using for legal research.

If this confuses you, talk to a law librarian…

Around for more than thirty years and often mistakenly* called "listservs," email lists were for a long time the most productive way for groups of people to argue and exchange ideas on the internet. We've touched on them on Slaw a number of times, particularly in the writings of Lyonette Louis-Jacques, the "queen" of law lists, her most recent contribution on the subject being A Few Good (Email) Lists. 

As Lyo says in that piece, we might imagine that this tired old format is "pretty much dead." But in fact, she came up with a dozen or so email lists of value (almost all of them of interest principally to law librarians). And I in fact belong to two quite lively email lists, which more about below, and which got me thinking about the continuing value, particularly for lawyers, of this kind of "forum."

For privacy and ease of use, nothing can really beat an email list, where lawyers are concerned.

As the publisher and editor of Slaw, I'm aware of every comment made by our readers, usually wishing there'd be more of this rich source of intelligence forthcoming. I realize, though, that for many if not most lawyers, "going public" with a written thought, even a fairly anodyne one, is a step made only after hesitation and careful consideration: clients, law societies, colleagues, senior partners, judges — anyone who matters might read what you've written and have a negative reaction; the risk, though slight, can make commenting publicly a game not worth the candle. Moreover, because lawyers still live in the bosom of email (in gremio . . . nubibus?), flicking the reply switch to answer an email list "posting" is easier than just about anything technically; whereas to comment on a blog post (even one received via an email subscription) means working on the web, which is still, I think, a vaguely suspect place for lawyers.

So are there good email lists out there for lawyers?

The two I belong to are active and very stimulating indeed:

• ULC_ECOMM-L A list managed by John Gregory about electronic commerce (his posts to which can be read on Slaw)
• CMLETHICS-L A list managed by Adam Dodek about legal ethics (see this CALE blog post)

Here are leads to a few others I've found, some of which will be more active than others:

• The Canadian Bar Association has five national email lists (all of which require membership)
  • National Alternate Dispute Resolution Section
  • National Elder Law Section
  • National Privacy Law Section
  • Sexual Orientation and Gender Identity Conference
  • The National Citizenship & Immigration Law Section is broken down into
    • CBANCISM – a national list open to all CBA members, and five provincial member lists:
    • MMBC
    • IMMALTA
    • IMM-MB
    • CITIMMQ
    • CBAOCIS
• There are sixteen CBA-BC email lists
  • Administrative Law Section - bc_adm@listserver.cba.org
  • Business Law Section - bc_bus@listserver.cba.org
  • Civil Litigation Section - bc_civil@listserver.cba.org
  • Criminal Justice Section - bc_crim@listserver.cba.org
  • Employment Law Section - bc_employ@listserver.cba.org
  • Family Law Section - bc_fam@listserver.cba.org
  • Immigration Law Section - bc_immigr@listserver.cba.org
  • Intellectual Property and Technology Law Section - bc_comp@listserver.cba.org
  • Labour Law Section bc_labour@listserver.cba.org
  • Law Practice Management Section bc_lawpm@listserver.cba.org
  • Real Property Section and Commercial-Real Estate Section - bc_realp@listserver.cba.org
  • Refugee Lawyers Group (Immigration Law Section Subgroup) - bc_rlg_immigr@listserver.cba.org
  • Wills and Trusts Section - bc_wills@listserver.cba.org
  • Women Lawyers Forum - bc_wlaw@listserver.cba.org
  • Work Life Balance Section - bc_wlb@listserver.cba.org
  • Young Lawyers Section - bc_ylaw@listserver.cba.org
• The Criminal Lawyers Association has a national "e-mail discussion group" for members only.
• The Trial Lawyers Association of BC has a couple of general lists and seven subject-matter email lists, a few of which are for members only (but membership is a better deal than a non-member fee):
  • TLABC Trial Practice (members only)
  • TLABC Paralegal & Legal Assistants Network
  • Criminal Defence Group (CDG)
  • Commercial-Corporate Litigation Group (CCLG) (members only)
  • Family Law Group (FLLG)
  • Employment Law Group (EmpLG)
  • Estate Litigation Group (ELG)
  • Plaintiff Medical Negligence Litigation Group (PMNLG) (members only)
  • Plaintiff Personal Injury Litigation Group (PPILG) (members only)

I'd appreciate any additions or corrections you might have to this list, as well as any thoughts about the usefulness of any I've mentioned. If it seems sensible, Slaw might maintain a list of lists, organized geographically and by subject matter.

_________________________________

* "Listserv" is a piece of software that runs a server managing an email list, or "mailing list." Other important pieces of mailing list software are Majordomo and Listproc.

A press release shared that William S. Hein & Co. and Fastcase announced a publishing partnership today. Hein will share federal and state case law to subscribers via links provided by Fastcase. Fastcase will integrate HeinOnline's law review and historical legislation. The press release goes into greater detail about the linkages and even discusses how customers will see this material.

This is pretty exciting news. I am looking forward to hearing the reactions of AALL Members at the American Association of Law Libraries 106th Annual Meeting and Conference which kicks off this coming weekend.

I'm egregiously late on this, but on the "better late than never" theory" I'm finally reporting that the Farber Financial Group has produced a smart phone app for insolvency lawyers. RESOLVE comes in Android and iOS versions, and there's a web-based version that should run well on a BlackBerry. In fact, if you want to check it out before you download, give the web-based version a try and you'll see most of the features it offers.

The features are described on the Farber website as including:

• Searchable, portable Canadian, US and Global Bankruptcy Statutes and Regulations (e.g. Bankruptcy & Insolvency Act and the US Bankruptcy Code)
• Easily accessed “Daily Door List” for the Toronto Superior Court of Justice-Commercial List, including hearing rooms, Judges, time and cases
• Streamlined Version of the CanLII™ searchable database by full text, statute, case name, citation, docket, or decision date
• Articles, case summaries and legal analysis from many of the world’s top insolvency lawyers via Lexology®
• Event Calendar that highlights insolvency-related events from the TMA, OBA, CBA, and other associations
• Latest insolvency and restructuring news from around the globe – with a focus on Canadian news, including a social media feed

Slaw has recently featured two great pieces from Simon Fodden and David Canton discussing PRISM and its privacy ramifications. Concerns over PRISM and what are sure to be other as-of-yet undisclosed government surveillance programs has left many wondering how they can "lock down" their data in the cloud.

While PRISM caused much gnashing of teeth about the security of the cloud in general, there are nine providers that provide data to the government under PRISM, as detailed by an NSA presentation released by the Washington Post:

• Microsoft
• Google
• Facebook
• Instagram
• Skype
• Twitter
• AOL
• Apple
• YouTube

The web searches we perform every day provide an uncomfortably clear portal into the private side of both our business and personal lives, especially when viewed in aggregate. PRISM access to Google search data means the US Government can gain access to this data, an especially discomforting notion given the virtual monopoly Google holds over web search.

The cleverly-named PRISM-BREAK site details how one can opt out of PRISM by making better choices about the software and cloud providers one uses, and Duck Duck Go is one of its more notable recommendations. Not only is Duck Duck Go outside of PRISM's current reach, but their policies protecting user's privacy means that they will likely forever keep your search data outside of the US government's reach, simply because that data is never tracked.

Privacy advantages aside, Duck Duck Go has garnered a wide number of rave reviews for both its user interface and search quality. If you're concerned about your privacy, give it a try.

Raizel Liebler, JD, MSLIS, and June Liebert, JD, MLS, both of John Marshall Law School, have published Something rotten in the state of legal citation: The life span of a United States Supreme Court citation containing an Internet link (1996-2010), Yale Journal of Law and Technology, 15, 273-311 (2013).

Here is the abstract:

Citations are the cornerstone upon which judicial opinions and law review articles stand. Within this context, citations provide for both authorial verification of the original source material at the moment they are used and the needed information for later readers to find the cited source. The ability to check citations and verify that citations to the original sources are accurate is integral to ensuring accurate characterizations of sources and determining where a researcher received information. However, accurate citations do not always mean that a future researcher will be able to find the exact same information as the original researcher. Citations to disappearing websites cause serious problems for future legal researchers.

Our present mode of citing websites in judicial cases, including within U.S. Supreme Court cases, allows such citations to disappear, becoming inaccessible to future scholars. Without significant change, the information in citations within judicial opinions will be known solely from those citations. Citations to the U.S. Supreme Court are especially important of the Court’s position at the top of federal court hierarchy, determining the law of the land, and even influencing the law in international jurisdictions.

Unfortunately and disturbingly, the Supreme Court appears to have a vast problem with link rot, the condition of internet links no longer working. We found that number of websites that are no longer working cited to by Supreme Court opinions is alarmingly high, almost one-third (29%). Our research in Supreme Court cases also found that the rate of disappearance is not affected by the type of online document (pdf, html, etc) or the sources of links (government or non-government) in terms of what links are now dead. We cannot predict what links will rot, even within Supreme Court cases.

HT @VolokhConspirac

Filed under: Articles and papers, Research findings Tagged: Broken hyperlinks in court decisions, Broken hyperlinks in judicial decisions, Court decisions, Hyperlinks in court decisions, Hyperlinks in judicial decisions, Judicial decisions, June Liebert, Link rot and digital legal information, Link rot in court decisions, Link rot in judicial decisions, Raizel Liebler, United States Supreme Court, Yale Journal of Law and Technology, YJOLT

The Special Libraries Association (SLA) held its 2013 annual conference last month in San Diego.

Part of the conference included sessions where "contributed papers" were presented. Those papers are now online:

"Last month, information professionals from around the world gathered in San Diego to network with peers, learn from industry leaders, and meet with vendors to test drive the latest products and services. Some of them came for an additional reason–to present papers that addressed topics such as those in the paragraph above. These 'contributed papers' were presented in dedicated conference sessions, with four papers delivered on each day of the conference."

"The papers are now posted in the SLA 2013 Annual Conference online planner. Links to the papers are published below; the papers are organized according to the dates on which they were presented."

Just In: Another great resource is now free!

We here at Courthouse Libraries BC are always excited when legal information becomes freely available. It is in this vein, that we are heartily applauding a recent development in Ontario.   The Law Society of Upper Canada and their Great Library have worked together to make course materials from their CLE/CPD sessions available online.  Now if the material is older than 18 months, it is completely free to download and print.

Access CLE  launched in 2007 but was always a strictly pay-per-view structure. Now for the first time, you can access any of the older material for free.  You can; of course, continue to pay for the most current material if you should need it right away.  There are currently over 6,000 articles dating back to 2004 available to search.  This is a laudable service to the profession and frankly to legal communities across Canada.  

So what does this mean for a BC lawyer? This is great news for lawyers who:

-          are practicing in any area of the law with a national focus;

-          are wanting to compare an issue from their practice area with what is happening in Ontario; or

-          are interested in practice management CLE material.  

What might this look like? Let’s say that you are an immigration lawyer who has heard great things about the yearly Immigration Summit, taking place in November every year. You can review the list of papers from the two day conference and read up on any of the very timely topics in your area of law, with practical advice from our Ontario colleagues. 

You could also search for specific topics.  Below you will see an example of a search for “search warrants”.  

This search turns up a number of great articles like: 

Selecting this 2011 article, “The Other Half of the Battle: Unconstitutional Searches and the Exclusion of Evidence” downloads the entire PDF to be saved or printed.  Fantastic!

Special thanks to Shaunna Mireau at Slaw for alerting us to this great resource with her SlawTips.

Returning to this morning's decision, in Canadian National Railway Co. v. McKercher LLP, which we gave the headline for in an earlier post, I thought it would be helpful to boil down the judgment, into twelve paragraphs, largely using the court's own words:

1. The Bright Line rule has been confirmed – the court was not prepared to overrule Neil and Strother. So a law firm cannot accept a retainer to act against a current client on a matter unrelated to the client’s existing files. The fact that the Wallace and CN retainers were legally and factually unrelated does not prevent the application of the bright line rule. The rule cannot be rebutted or otherwise attenuated, but it does have certain limits. It applies where the immediate legal interests of clients are directly adverse in the matters on which the lawyer is acting. It applies only to legal — as opposed to commercial or strategic — interests. It does not apply to condone tactical abuses. And it does not apply in circumstances where it is unreasonable to expect that the law firm owes it exclusive loyalty and will not concurrently represent adverse parties in unrelated legal matters.

2. In Neil, Binnie J. gave the example of “professional litigants” whose consent to concurrent representation of adverse legal interests can be inferred. These cases are the exception, rather than the norm. Factors such as the nature of the relationship between the law firm and the client, the terms of the retainer, as well as the types of matters involved, may be relevant to consider when determining whether there was a reasonable expectation that the law firm would not act against the client in unrelated matters.

3. The court recognized that the possibility of tactical abuse is especially high in the case of institutional clients dealing with large national law firms. Indeed, institutional clients have resources to retain many firms, and the retention of a single partner in any Canadian city can disqualify all other lawyers within the firm nation-wide from acting against that client. Institutional clients should not spread their retainers among scores of leading law firms in a purposeful attempt to create potential conflicts.

4. The substantial risk principle, articulated in para 31 of Neil, is a second level rule, which only comes into play when the bright line isn't tripped. If so, the question is: does the concurrent representation of clients create a “substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person”. The determination of whether a conflict exists becomes more contextual. The onus is on the client to establish, on a balance of probabilities, the existence of a conflict.

5. Commitment – a law firm is under a duty of commitment to the client’s cause which prevents it from summarily and unexpectedly dropping a client to circumvent conflict of interest rules, or neutralize its duty of loyalty.

6. Candour – A lawyer should advise an existing client before accepting a retainer that will require him to act against the client, even if he considers the situation to fall outside the scope of the bright line rule. CN should have been given the opportunity to assess McKercher’s intention to represent Wallace and to make an appropriate decision in response. This duty of candour towards the existing client must be reconciled with the lawyer’s obligation of confidentiality towards his new client. To provide full disclosure to the existing client, the lawyer must first obtain the consent of the new client to disclose the existence, nature and scope of the new retainer.

7. The court clarified its role, and that of the law societies. Courts have supervisory power over litigation brought before them. Lawyers are officers of the court and must conduct their business as the court directs. The court can determine whether a lawyer may act for a particular client in litigation. Its supervisory role is to protect clients from prejudice and to preserve the repute of the administration of justice, not to discipline or punish lawyers. Courts also develop the fiduciary principles that govern lawyers in their duties to clients.

8. Law society regulation exists to establish general rules applicable to all members to ensure ethical conduct, protect the public and discipline lawyers who breach the rules: the good governance of the profession. Law societies are not prevented from adopting stricter rules than those developed by the courts. Courts are not bound by the letter of law society rules.

9. Effective and fair conflicts rule must strike an appropriate balance between conflicting values: the high repute of the legal profession and the administration of justice, and the values of allowing the client’s choice of counsel and permitting reasonable mobility in the legal profession. The realities of large law firms and litigants who pick and choose between them are also factors. The rules must be context-sensitive.

10. There is no concept of play book data – a general understanding of a client’s business or litigation philosophy is not confidential unless it can be used against the client in some tangible manner.

11. When a law firm is asked to act against an existing client on an unrelated matter, it must answer the following questions:

a. Does accepting the retainer breach the bright line rule?
i. Are the immediate legal interests of the new client directly adverse to those of the existing client?
ii. Is the existing client exploiting the bright line rule for tactical reasons; and
iii. Is it reasonable for the existing client to expect that the law firm will not act against it in unrelated matters.

If the answer is yes, simultaneously acting for and against a client in legal matters will generally result in a breach of the bright line rule, and the law firm cannot accept the new retainer unless the clients involved grant their informed consent.

If the law firm concludes that the bright line rule is inapplicable, it must then ask itself whether accepting the new retainer will create a substantial risk of impaired representation. If the answer is no, then the law firm may accept the retainer.

12. Remedy – the court went a long way to clarify how remedy should be considered: Disqualification may be required:

a. to avoid the risk of improper use of confidential information;
b. to avoid the risk of impaired representation; and/or
c. to maintain the repute of the administration of justice.

Where there is a need to prevent misuse of confidential information, disqualification is generally the only appropriate remedy, subject to the use of screens to alleviate this risk as permitted by law society rules.

Where the concern is risk of impaired representation, disqualification will normally be required if the law firm continues to act concurrently for both clients.

To protect the integrity and repute of the administration of justice, disqualification may be needed to send a message that the courts do not condone the disloyal conduct involved in the law firm’s breach, thereby protecting public confidence in lawyers and deterring other law firms from similar practices. Courts faced with a motion for disqualification on this third ground should consider additional factors:

i. behaviour disentitling the complaining party from seeking the removal of counsel, such as delay in bringing the motion for disqualification;
ii. significant prejudice to the new client’s interest in retaining its counsel of choice, and that party’s ability to retain new counsel; and
iii. the fact that the law firm accepted the conflicting retainer in good faith, reasonably believing that the concurrent representation fell beyond the scope of the bright line rule and applicable law society restrictions.

When CN ended its McKercher retainers, that ended the representation; and the law firm didn't have confidential information. The only question for the Court of Queen’s Bench, to which the remedy issue is remitted, is whether disqualification is required to maintain public confidence in the justice system.

The British judiciary’s study committee on self-represented litigants — called the Judicial Working Group on Litigants in Person — has issued its report.

Here are technology-related recommendations from the report:

[...] The Judicial Office and MoJ/HMCTS [UK Ministry of Justice / Her Majesty's Courts and Tribunals Service] should hold, urgently, discussions to establish the most appropriate way to develop a central online resource to which staff and judiciary could easily refer in order to identify nationally available sources of advice and assistance for litigants in person; further work to be informed by the outcome of those discussions [...] [(p. 8)]

The Working Group recommends that particular emphasis is placed on the production of audiovisual material, such as online videos. This can be a highly effective way of informing litigants in person about what is required of them and what to expect when they go to court. [...] [(p. 17)]

The Group also considers that access to comprehensive and up to date online information will be increasingly important for litigants in person. The Group, therefore, recommends that HMCTS/MoJ undertakes, urgently, a thorough review of its web-based information, to ensure that litigants in person can easily access the information they need to understand and decide on the various courses of action open to them, and to prepare for, and present, their case in a court or tribunal. [...] [(p. 17)]

MoJ/HMCTS should devote the necessary work and resources to:

• Producing, with judicial involvement, audiovisual material to inform litigants in person what is required of them and what they can expect when they go to court.
• Undertaking, urgently, a thorough review of its web-based information, to ensure that litigants in person can easily access the information they need to understand and decide on the various courses of action open to them, and to prepare for, and present, their case in a court or tribunal.
[...] [(p. 32)]

For more details, please see the complete report.

HT @Law_Works

Filed under: Applications, Policy Materials Tagged: Access to justice technology, Judicial Working Group on Litigants in Person, Judiciary of England and Wales, Judiciary of England and Wales Judicial Working Group on Litigants in Person, Legal information services for pro se litigants, Legal information services for self-represented litigants, Pro se litigants, Self represented litigants, Technology for access to justice, Technology for pro se litigants, Technology for self represented litigants

The Supreme Court of Canada released the following decision today:

Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39; FILE NO. 34545

(Whether a law firm can accept a retainer to act against a current client on a matter unrelated to the client's existing files; Whether a law firm can bring a lawsuit against a current client on behalf of another client and if not, what remedies are available to the client.)