In her September 30 column in Slaw.ca, Tackling Technology, Prof. Amy Salyzyn argues lawyers’ ability to use and manage information technology is now an element of professional competence. Technology is now a driver of client service, effective lawyering and access to justice. The flip side of this argument is that screen-based technology is an inhibitor of contextual literacy. Contextual literacy is a core legal skill, without which our services are worthless to clients. Technological literacy will probably look after itself, with the passing of generations. Loss of contextual literacy, however, will be a more serious problem from the perspective of legal education and training.
I have recently encountered this phenomenon when hearing a young lawyer maintain that a contractual limitation period for an acknowledged obligation starts from the date of subsequent repudiation and not from the date of acknowledgement. This lawyer’s assumption, based on the spatial pattern of the way limitations work in breach of contract cases, had to be dispelled by mapping out the operation of s. 13 of the Ontario Limitations Act, 2002 and reading each word as defined in the statutory architecture. Once you see it, it follows the former common law on the subject, and there’s no other way to see it. Until then, it seems a wordy mess and the mind’s eye is tempted to read it the way other limitation periods are structured. In the intervening period between acknowledgment and repudiation, the limitation period changed. The significance to the lawyer, who thought he had started the action a day before it prescribed, was that he may actually have missed the limitation period by several weeks.
A significant generational divide in lawyers’ literacy is the widespread variation of spatial cognition skills among Baby-Boom and Gen X lawyers compared to Millennials. The older lawyers tend to be better grammarians and the younger ones are better at reading charts. This is a human factors issue for our profession similar to the way in which the use of a big red stop button is important to operators of heavy equipment. We need to be better cognizant of the way technology amplifies both our strengths and weaknesses. Instead of hiding our weaknesses or making light of them, we have to learn how to teach ways of overcoming them. So it is more than requiring lawyers to learn to use PC Law, Excel, or collaborative web solutions. We must develop strategies for overcoming the loss of ‘artisanal’ skills resulting from technological innovations.
We complain that people can’t read or write any more, but teaching grammar like they did in the one-room school house is no longer useful or efficacious. In law, the search for clarity and precision requires us to develop ways of teaching new lawyers that words have meaning depending on the linear order in which words appear. An example I have used is to ask a young person learning French the difference between the phrases, “neuf nouveaux bateaux” and “nouveau neuf bateaux.” Until one introduces a spatial explanation, it is not easy to see the difference between “nine new boats” and “new nine boats,” except that the latter appears simply to be an awkward way of expressing the former. In fact, the latter implies a pre-existing context in which boats are already organized in groups of nine (eg. a marina in which each pier docks nine boats), whereas nine new boats implies only an undefined number of previous boats (eg., nine new boats entering the marina). We see blindness to this type of issue more and more. Unless we teach how to overcome it, lawyers are going to be making mistakes all the time and not understanding the mistakes they made.
This afternoon, the Law Society of British Columbia voted 20-10 to hold a referendum on the issue of accreditation of the Trinity Western University. This came after a vote of 9-21 against deciding to overturn its previous decision in April to grant accreditation.* That first motion arose from a non-binding resolution of a special general meeting of the entire B.C. Bar, held in June. A third motion, to defer any decision, was obviated by the decision to hold a referendum.
In deciding to hold a referendum, the B.C. benchers have abdicated their responsibility as the directors of a self-governing profession. Either they should have stood by their original decision to grant accreditation, or they should have reversed their decision based on the interventions made at the June special meeting. Instead, they have decided to distribute the decision-making authority to the general membership.
While this may seem ‘democratic’ in a populist sense, atomizing a decision-making power to the membership is not democratic because the public has entrusted the legal profession to govern itself. The Law Society derives its authority to govern in this instance not from the electors but from the people of B.C. The election of benchers is not only an act of selection but of submission to the public interest in exchange for the monopoly over legal services. Since the public has no voice in the process apart from legislative amendment of the statute and the appointment of a handful of lay benchers, a voluntary referendum not mandated by the statute exceeds the Law Society’s jurisdiction requiring it to be governed by benchers. In this regard, the B.C. Law Society’s decision was not only unlawful. It also showed a lack of understanding of the purpose of law societies.
Henry Higgins, in My Fair Lady, famously sang, “Why can’t a woman be more like a man?” For Higgins, an elocution teacher who traded in British class prejudice by offering to improve clients’ social standing through posh talk, the education of a woman was essentially a troublesome Alternative Business Structure (ABS) – he could work with the moving parts but the brain remained a mystery.
The Final Report of the Canadian Bar Association’s Legal Futures Initiative, released today, appears to be a multifaceted atlas mapping out a strategy for renewal of Canada’s law industry. There are many good thoughts in it, including a premise that “The future for lawyers is as much about ethics and values as it is about economics and value.” That equation is somewhat betrayed by the simple textual metric that the word “value” in the sense of economic value is used more than twice as often than in the sense of ethical values. Review of the report from beginning to end bears out this imbalance. In reality, there is no shortage of Darwinian zeal when it comes to the core message: Change or Die.
Il n’y a, en général, que les conceptions simples qui s’emparent de l’esprit du peuple. Une idée fausse, mais claire et précise, aura toujours plus de puissance dans le monde qu’une idée vraie, mais complexe.
~ Alexis de Tocqueville, De la démocratie en Amérique
De Tocqueville was likely not the first to say it, but his observation that democracies love simplicity came with the warning that people will embrace a clear and precise lie sooner than a complex truth. Add the frenzy of insurrection to the power of the people, and we can, through his eyes, see the contrast between the French and American republics at the end of the 18th century. One can argue the relative complexity of the American constitutional documents, intended to buffer the excesses of direct democracy, has acted as a restraint against mob rule.
The power of simplicity has long been a challenge for jurists in a democracy. Statutes and common-law principles tend to be blunt instruments, especially in a pluralistic society. The task of deciding whether those blunt instruments apply to a particular set of facts falls on the judiciary. Beyond the Ten Commandments, codes of civil and penal laws necessarily involve that critical extra step for implementation. For example, every criminal offence and every civil duty of care that does not impose absolute or strict liability contains both an active and a mental element. Instead of explaining the method by which the law operates, judges and lawyers often fall into the pastime of grafting a second layer of law about which there is little certainty. Breaking down the written words of the law into precise and constituent elements is a judicial task; building a superstructure above the text is not. The key to the constitutional principle of “peace, order and good government,” not unique to Canada, is a judiciary which understands its role as facilitator of civic governance. Turn the Constitution into an alphabet soup of subjective and unpredictable combinations, and our courts will be working against its proper function.
A Problem of Legal Training
Lawyers and judges are trained to build constructs out of legislative and common-law principles, based on a theory that there are both written and unwritten laws. In doing so, we mistake the underlying or interpretive logic of statutory instruments and common law precedents for a separate set of rules. Even the common law is a body of rules that exists only in the written texts of judicial precedents, so expansion of law instead of carving down its bluntness can be viewed as treading on elected power. We often misconstrue our duty and try to ‘build upon’ the law, instead of interpreting the law as it applies to the parties’ situation. It is time to think hard about what are doing, and whether what we are teaching is right. We have to decide whether we are jurists or social scientists. The further we stray from being jurists, the utility and legitimacy of our professional expertise wears thinner.
The “blawgosphere” seems to have lit up this week with the release of Morland-Jones v. Taerk, a dispute between neighbours in the affluent Toronto, Canada, neighbourhood of Forest Hill. Essentially, the Ontario Superior Court ruled that the case, an interlocutory injunction matter involving multiple allegations of trespass and invasion of privacy, should be dismissed because “there is no serious issue.”
We may derive some guilty pleasure from reading about the dispute – evidently between a pair of awful neighbours with no shortage of money to spend on lawyers – but was it right for the judge simply to turn them away? If it were a matrimonial dispute between two annoying spouses from a rich family, would the court be justified in refusing a request by one party for interim relief on this basis? Would the judge have ruled this way, if the same complaints were made by neighbours from a less expensive postal code? My entry on the Gilbertson Davis LLP litigation blog (click link, or click on image above right) canvasses these issues concerning the role of the court in a society where we all depend on the rule of law to get along.
A report in the Saskatoon StarPhoenix that the University of Saskatchewan plans to eliminate its law library and integrate the collection with three other campus libraries into the main university library prompted protest from many in the legal academy. One of the requirements set by the Federation of Law Societies of Canada (FLSC) is that a law school maintain a law library (2009 FLSC report pp. 5, 11 and 42).
The argument that many students and practitioners now gain access to legal resources online ignores the importance of the tangible written word on the rule of law. A row of books, even ones that are “out of date,” serve to remind the public, as well as judges and lawyers, that even the common law is engraved in modern versions of stone tablets for all to view, not suspended in an oral tradition guarded by a few oracles.