Monday, July 06, 2015

"The first thing we do, let's kill all the lawyers."

In Shakespeare's Henry VI Part 2, Act IV, Scene II, the treasonous criminal usurper Cade makes a speech to his followers including Dick Butcher, who yells from the crowd "The first thing we do, let's kill all the lawyers."

It's a common topic of conversation in the first year of law school. Why would revolutionaries want to kill the lawyers?  Was the line just for a laugh?  Or did it reflect a belief that lawyers played an important role in maintaining the rule of law and were therefore an obstacle to revolutionaries?

I prefer the laugh theory, but it seems less funny today.

Over the weekend, one lawyer and his notary were shot to death in Quebec by a client who it seems may have subsequently committed a double murder suicide.  In Winnipeg, one lawyer has lost a hand to a mail bomb, more bombs were found in lawyers offices, and others may still be out there.  The man accused of planting them is believed to be attacking lawyers involved in his divorce.

One lawyer dead and another nearly so in the same weekend.  Dick Butcher would be pleased.  Note that Cade agreed with Dick Butcher, and evidently for reasons similar to those of the perpetrators this weekend: some legal dealing that had gone badly for him.

"... for I did but seal once to a thing, and I was never mine own man since."

No words of wisdom, here.  Just sadness.  Stay safe, colleagues.

Monday, June 22, 2015

Why Articling Students are Better Off under New LSA Education Plan

I was pleasantly surprised to see the Law Society of Alberta get some extra-jurisdictional praise on twitter and blogs recently for the implementation of its new education plan.

The articling program for new lawyers in Alberta involves two parts.  There are the articles of clerkship, which in layman's terms is the practical experience part, akin to the residency requirement in medical training; and then there are the courses, which are called CPLED.  Alberta, rather than having a "bar exam," has a series of courses that you are required to take to verify that you meet the minimum standard of competence in a number of areas.

Until recently, the articles of clerkship required you to check off a certain number of substantive areas of law that you were going to learn in your practical experience.  If I try to remember mine, I think they would have been Administrative Law, Wills and Estates, Real Estate, Litigation, and Legislative Drafting, or something to that effect.  Most came from a standard list, others could be added or substituted.

The law society, in their new education plan, have dropped the idea that your practical experience should teach you about substantive or even practice areas of law.

This is good.  Because what you can learn from a year of doing litigation closely approximates nil, and articling students in most firms don't litigate.  They research.

The LSA has instead looked at the list of competencies set out by the Federation of Law Societies three years ago, and seems to have decided to assign a certain set of them to the articles in place of the practice or substantive areas.

New articling students will now be expected to get experience in areas like:

  1. Ethics and Professionalism
  2. Practice Management
  3. Client Relationship Management
  4. Conducting Matters
  5. Adjudication/Alternative Dispute Resolution 

The actual form itself (for some reason) includes a list of suggested activities to achieve these areas of competence.  It is a strong and helpful list.

A couple of things strike me.

First, this is definitely a step in the right direction.  More than anything, I am impressed at the fact that the education requirements now better reflect what a lawyer would need to know in order to work as a sole practitioner, as opposed to allowing firms to merely train researchers who remain dependent on them for employment.

The LSA is to be congratulated for moving forward on that.

Second, I'm not sure the lawyers are the right people to be doing the teaching, for several of these things.  I'm not sure that all the lawyers understand the intricacies of the time management and financial and calendaring and bring-forward systems as well as the senior assistants, do, and so I think the assistants are going to be, appropriately, an important resource for articling students and principals to meet these learning objectives.  Less true in smaller firms, but very true in larger ones.

Third, as the Law Society points out, all law firms, even single-practice-area law firms, deal with all five of those areas on a regular basis.  It is now conceivable for a solo family practitioner, for example, to be able to commit to instructing an articling student in all of the required areas, which should vastly increase the number of potential articling places, and the variety of work environments available to articling students.  This is also an excellent step in the right direction to giving articling students more options for where to article, and also letting them experience a wider array of options for how to practice after articles.

Fourth, and this is where I have to have some skepticism, the previous system is one in which law firms promise what they are going to teach the articling student, and then at the end of the year they say they kept that promise to their articling student.  The articling student, motivated to be admitted to the bar, generally agrees.  There is no independent disinterested verification of whether the lessons are actually taught, and as a direct result... wait for it...  they often aren't.

I know, I know.  In the words of Iago the bird from Disney's Alladin, I'm sure you're going to have a heart attack and die from that surprise.

The firm's primary motivation, unfortunately, is often profit.  And teaching the articling student working in your litigation department how to do real estate is inefficient.  So firms were poorly motivated, if extrinsically motivated at all, to do it properly before.  Now, they are being asked to actively participate in giving their articling students the skills that they would need in order to leave their employ.

Colour me pessimistic, if you like, but I think expecting large law firms to be motivated to do that job well is a bit naive. Law firms regularly state that it takes 5 years, including an articling year, before they can "make their money back" on a new lawyer. They are motivated to teach them how to work at that firm, but they are not motivated to teach them what they would need to know to leave.

But to be fair, that is not a problem that the LSA has created by changing the plan, it is merely a problem that the LSA has not solved by changing the plan.

An articling student who takes seriously the good advice of the Federation of Law Societies and the Law Society of Alberta as to what they need to know to be beginning lawyers, and who takes personal responsibility for learning it, regardless of whether or not anyone is particularly interested in teaching it, will emerge from their article better prepared for the practice of law than anyone in my cohort whose education was limited to the contents of the plan.  Which is probably most of us.

Monday, June 15, 2015

Does legal aid treat the mentally ill worse than the criminally accused?

Legal Aid Alberta provides funding for legal assistance in two broad categories: persons who are sufficiently poor as to be unable to afford a lawyer, and persons in the custody of the state.

The reason for this second category is because in a very real way, the role of the legal profession is to care for your liberty. Being held in custody of the state is a situation in which your liberty is most severly injured, and most in need of protection. Legal Aid does not ask whether you can afford to get your own lawyer in that circumstance.  Everyone qualifies.

Persons in the custody of the state can be divided into largely two sub-categories: persons held in jail under the Criminal Code, and persons detained under the Mental Health Act.

If you are a criminally accused person, here is a list of things that you have to do to obtain assistance from a duty counsel when you appear at court:

  1. If you are not in custody, line up.
  2. Say "yes" when the duty counsel asks if you want their help.
If you are a person detained under the Mental Health Act, here is the list of things that you have to do to obtain assistance from a duty counsel.
  1. Indicate on the form on which you requested your hearing, if the form has a location for you to indicate it, that you want the assistance of counsel.
  2. Peruse the information provided to you by the hospital, if in fact they provide it, about how to contact Legal Aid.
  3. Call Legal Aid, and explain your situation, location, and the nature of your hearing sufficiently well that the person at Legal Aid understands that you are seeking help with a Mental Health Review Panel hearing.
  4. Hope that the person at Legal Aid knows about Mental Health Review Panel duty counsel roster, and obtain the phone number and name of the lawyer assigned for your week.
  5. Contact the lawyer directly by phone, which usually involves leaving a voice message and explaining your situation and contact information in sufficient detail for the lawyer to be able to understand and assist.
If you are lucky enough to be in an institution that has staff dedicated to facilitating these hearings, your list may be shorter. In Edmonton, that is two facilities out of approximately seven.  For everyone else, you must navigate the above system, and often you must do it while in the most extreme part of a psychiatric episode, and/or while taking medications that impact your initiative.

The Mental Health Review Panel is an itinerant tribunal - it travels from facility to facility.  Frequently, the Panel will arrive at a facility with no duty counsel present, only to learn that one or more patients at that facility were seeking legal assistance, but were unable to obtain it. Frustratingly, the lawyer who would have been assigned will often have been seen by the panel earlier that day, and will be seen again later in the day.

Quite simply put, the system is unfair.  It takes people who are disadvantaged through no fault of their own, whose detention is not the result of any alleged criminality, and forces them to jump through multiple hoops to obtain the same sort of help that is provided without request to people charged with criminal offences.

Even in the absence of such challenges, merely requiring psychiatric patients to opt-in to legal assistance is fraught with the potential for unfairness.  Many patients are seeking reviews of decisions by medical staff that they are incompetent to make their own treatment decisions.  Should a person deemed incompetent and appealing that decision be forced to specifically request legal assistance?  Should they even be allowed to refuse it?

Legal Aid is in an untenable position - it is repeatedly asked to do more with less. But fairness demands that we treat those in the custody of the state due to mental illness with at least as much respect for their liberty as we have for those accused of crimes.  That's not happening yet.  We need to do better.

Some potential solutions include having duty counsel travel with the tribunals, having duty counsel be an opt-out service, or providing duty counsel with the opportunity to make arguments at the request of the tribunal rather than the patient.

All of these will require greater resources than are currently available.  But fairness demands that we do better.

Friday, May 29, 2015

Review of Google Inbox for an advanced Gmail User

Google's new "Inbox" is essentially a front-end for gmail.

Gmail revolutionized email by abandoning the real-world metaphor of an inbox with a pile of messages in it that were organized only by the time of their arrival, and which were related to one another, if at all, only through the judicious use of the subject line.  In its place, gmail organized emails by "conversation." If a conversation, which is an email and the replies to that email, got a new addition, that whole conversation would be brought back up to the top of the list.

Also, gmail did away with the idea of ever deleting emails, and instead allowed you to "archive" them, which made them essentially invisible unless you went looking for them.

Gmail also did away with folders as a means of organizing emails, deciding instead on a many-to-many relationship called "labels" that would be applied not to individual messages, but to conversations.  So your conversation can be labeled in one or many different ways.

Whether the conversation was still in the inbox or archived was also dealt with by system labels, but appears differently.

Google has tried, at least twice, to make gmail better at organizing your email to make dealing with it simpler.  First was their "importance" settings.  Gmail will mark your conversations with an "importance" setting, and give you the option of organizing the emails in your inbox by their importance.  Importance is determined automatically by a learning algorythm.  If the messages was sent directly to you, it is more important.  If it was sent be someone that you usually reply to quickly, it is more important.  Things like that.  This system was helpful only in that you got to some of your important messages more quickly.  But because the system was imperfect, you still had to go through all your mail to make sure it hadn't missed anything, so the net savings was minimal.  It was too risky to avoid dealing with what gmail said was unimportant.

Later, gmail came out with tabs that organized your inbox into certain pre-determined types, including social media updates, promotional messages, forum digests, and things of that nature.  This is actually quite a good algorythm, and also learns your preferences when you move things from one tab to another.  Clicking on promotions, doing a quick scan to make sure nothing was inadvertently added, and then selecting all and archiving is a good way to get 10 or 20 messages out of your inbox at the same time.

But this feature was limited because you couldn't create your own custom tabs.

Enter Inbox.  Here, gmail is attempting to take what is good about the tabs feature in gmail, but maintain the benefit of a single-list inbox.  The solution is to group messages into "bundles." So that each bundle can be dealt with in a single action.  Promotions, Social Media updates, and these sorts of things are still allowed.

Now, however, Inbox allows you to take a label and turn it into a bundle.  If messages are automatically added to that label using a custom filter, this will be treated exactly the same as a system-generated bundle like "promotions."  It will appear in your list of new messages as a group, collapsed.  You can deal with it as a single entity, or you can look inside and deal with its contents one by one.  You can configure your bundles to go to the top of your inbox each time a conversation is updated, or to do so only once per day, or only once per week, depending on how frequently you want to check in on that bundle.

If you want to deal with a message later, Inbox adds the "snooze" feature, which allows to to set a bundle or conversation to come back to the top of your inbox at a later time.

If there is something that you want to remind yourself of, but it is not already in an email form, you can create a reminder.  The reminder acts as a conversation, and can be snoozed and archived (which is now called "marking it done").

Conversations and reminders can also be "pinned", which is similar to "starring" a message in gmail.  Access to your list of currently "pinned" conversations and reminders is always one click away.

Inbox also boasts some interface enhancements, showing you previews of the pictures or other media included in an email without you having to open the email, which is useful for people like me who have voicemail messages emailed to them.  It also has the capacity to collect important information about travel plans automatically from your emails from airlines and the like, and to display that information in a clean simple format organized by "trip" without you having to open the message.

There are some imperfections to this system.  Labels continue to exist, but they only are turned into bundles if they have emails automatically added to them via filter.  For someone like me who uses labels to sort messages by the matters they are associated with, it is very difficult to do that reliably by filter, particularly when you have clients for whom you are dealing with more than one matter.  That eliminates any possibility of my using bundles effectively.

The option of labelling a conversation without archiving it (or "marking it done") has been removed in inbox.  This effectively eliminates the many-to-many relationship of conversations and labels in gmail, allowing you to apply only one label to a conversation at a time.  As far as I can tell, it is not possible to add a message to more than one label through the Inbox interface.  The "Label" option is gone, and "move" is the only option left.

Importantly for people who use labels extensively, as I do, Inbox has also eliminated the ability to add labels to a message when composing.  It has also reduced the usefulness of the signature field, limiting it to plain text only.  It also has no ability, so far as I can tell, to request read receipts when sending an email.

Customized Bundles if you have custom filters
Bundles appear in one list instead of tabs
Bundles can be scheduled to appear once per day, once per week.
Improved picture display
Travel itinerary displays
Pinned access is easier than "starred".

Labels are now one-per-conversation.
Manually applied labels cannot be bundled (not even replies to pre-labeled conversations)
No ability to label without archiving, when you wish to keep it in your inbox.
No ability to label messages when composing.
Severely limited signature field.
No read receipts.

For me, taking the many-to-many label system, where one conversation can be labelled with many labels, and a label can be applied to many conversations, and treating it as though it was a simple folder system, where each conversation can be in only one folder, or the inbox, but not both, is a needless step backwards.  It undoubtedly comes from the way most people actually use gmail labels.

The inability to take advantage of bundles for anything other than filtered messages or pre-built categories makes it of limited advantage.  Reminders are a nice addition, though i'm not sure if my email inbox is where I want them to live.  Pinned vs. starred is no big deal.  Snoozed messages are really just a new interface for "i'll get to it later." It will be useful to some people, but I'm not that impressed.

The idea of being able to set bundles to update only once a day or once a week instead of everytime a conversation in that bundle is updated is a cool idea, but unnecessary in the gmail context where they appear in different tabs, and you can simply choose not to open that tab more than once a day, as opposed to having it forced to the top of your list otherwise.

The limitations on the signature field are just silly, and will almost certainly be removed in short order.

The media display improvements are good, and something that I would like to see integrated as an option into the gmail interface.

For me personally, because I rely on labels so much in order to keep track of my email, I don't think I can justify going from a system that lets me apply more than one label and lets me apply labels without archiving to a system that does neither of those two things.

I'll keep an eye on inbox, but I don't expect to be using it much for business email.

Monday, April 27, 2015

Round Table Law Featured in #CBA National Magazine #Tech Issue

I had the pleasure of chatting with Julie Sobowale who writes for the Canadian Bar Association's National magazine quite a few months ago.  She is one of those kindred spirits who sees the same things wrong with the legal profession that I do.  We talked a long while about many things that have little or nothing to do with technology.
Illustration: Dave Murray/i2i Art, Image courtesy CBA National

But her reason for calling me was an article published recently in CBA National entitled "Put Technology to Work for You."

My part in it is minor, but I'm happy that there are people out there pushing the idea that the thoughtful, effective use of technology to make law more efficient is a norm, and not an exception.

Good  job, Julie.

If you are interested in legal news and technology you can (and should) follow Julie at @nslegal on Twitter.