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.
On October 16, as part of their joint professional development seminar, Current Topics in Ethics & Professionalism, the Toronto Lawyers Association and University of Toronto’s Centre for the Legal Profession will be staging “A Great Debate: Should Lawyers Consider Themselves the Moral Conscience of their Clients?” I will be debating in favour of the resolution.
If you are attending and want to prep for the debate, or can’t make it, read my September, 2013, column in the Canadian Lawyer entitled “Lawyers and their demons.” (click on graphic, above right)
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Le 16 octobre, l’Association des juristes de Toronto et le Centre du barreau de l’Université de Toronto présenteront , Current Topics in Ethics & Professionalism. Durant ce programme de formation juridique, je discutera dans “le Grand débat” en faveur de la proposition: Est-ce que les avocats doivent s’identifier en tant que le sens moral de leur clients?
Si vous vous inscrirez et voulez préparer en avance, ou vous ne pouvez pas nous rejoindre, baladez au site du Canadian Lawyer et cliquez sur mon article, “Lawyers and their demons.” (cliquez sur l’image en haut)
Chapter 7 of Uta Hagen’s 1973 technical manual for the professional actor, Respect for Acting, is devoted entirely to thinking. As a theatre or cinéma fan, read this book and you may never put up with bad acting, ever again. As a lawyer, we could only wish the equivalent were available to help us stay on top of our game.
In my April, 2013, Canadian Lawyer column, Respect for Lawyering, I suggest that our profession, once respected for our prowess at thinking, might learn a thing or two from Hagen’s disciplined approach to the actor’s craft. Whether it is resisting the movement toward commoditization of legal services, or ways of enhancing public confidence in courts, earning respect for our thinking must start with approaching thought as work. Click on Hagen’s image, right, to link to the column.
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Chapitre 7 du tome magistral d’Uta Hagen, Respect for Acting, dévoile les techniques de la pensée active des comédiens. Pour eux, penser et un aspect du travail. Après avoir lu ce livre, peut-être que vous ne supporterez jamais plus les rôles mal joués. En tant que juriste, c’est un malheur que l’équivalent de ce bouquin n’existe vraiment pas pour nous.
Tant pis. Dans mon article de l’avril 2013 du Canadian Lawyer, Respect for Lawyering, je propose que les juristes peuvent apprendre l’art de penser en se visionnant comme penseurs actifs. Si notre travail est dévalué de ces jours, en tant qu’avocats ou en tant que juges, faut-il nous rappeler que le grand public veut nous respecter, et de voir la preuve que nous pensons, comme travail. Cliquez sur l’image de Uta Hagen, à droit, pour accéder à l’article.
Lack of diversity in law, in the world’s most multicultural city in the country the most welcoming of outsiders, continues to confound.
In 2011, I met with the leaders of the American Bar Association during their annual conference in Toronto. I was impressed with how more reflective of our general community the delegates were, compared to senior members of our bar. They seemed to have got over the barrier from diversity as prototype to diversity as integral professional culture. Even to the point that, it was pointed out to me, the seven members of the California Supreme Court included four women and four Asians. The American Civil Rights Movement has always been about participation and integration, and less about preservation of diasporic customs. Continue reading
In this month’s Accidental Mentor column in Canadian Lawyer, learn to apply to your law practice what the best writers have been teaching for years: ‘kill your darlings.’
Dans l’article prochain de l’Accidental Mentor dans Canadian Lawyer, profitez de la leçon principale des écrivains professionnels: si vous faites naître une bonne idée, prenez la hache dans vos mains!
You can distinguish generations of lawyers from their relationship with the telephone.
(le sommaire français suit)
I’m not talking about “recreational” use. That phone-hugging lout, weaving back and forth in front of you through the breakfast cereals aisle at the supermarket, has shortened your life by the time you had to listen to him. Sadly, public places have become mental extensions of people’s living rooms. Compared to its omnipresence in the world outside, the decline of telephony in the law office is more subtle and more important to your career.
The desktop telephone reached its apogee as professional tool in the 1980’s, when the above Bell Telephone commercial, part of a 10-year campaign featuring Canadian actor Larry Mann as “the Boss,” aired dozens of times a day. You can see in 1982, the phone company was still a monopoly and its only competition was Canada Post, who could communicate a thousand words for a 25 cent postage stamp.