From Occupational Hazards and Tips

‘The Morning After’ Politics and a Hamilton Ontario Courtroom

The day after the election of the 45th president of the United States, Bernd Zabel, a trial judge in Hamilton, Ontario, entered his courtroom wearing a baseball cap bearing the logo “Make America Great Again.” Hamilton, a city whose declining steel industry has seen its economy transformed by a leading Canadian university and a vibrant wine region on its doorstep, has an increasingly diverse demographic including 30,000 muslims from South Asia and migrant workers from Mexico.  These proud groups also have concerns about their treatment as participants in Canadian society. Instead of laughing it off, the judge kept the hat on display beside…

Testing for Legal Ethics and Efficacy: You take the test

Recently, a colleague asked me for an example of a bar exam question that tests the candidate’s judgment between being an effective lawyer and being an ethical one.  It has been long since I’ve prepared such a question, so here is a rusty stab at it: Astrid is a first-year lawyer hired recently by R. U. Hurt LLP, an injury law firm with a reputation for obtaining high settlements through zealous trial advocacy.  She is excited because her senior partner Jay Z. has introduced her to his client Brian, who had suffered a bad whiplash injury in a car accident with…

A Science Manual for Canadian Judges. Who knew we all had to read it?

This summer, while researching for a paper on the Canadian law of causation in the age of torts committed in cyberspace, I re-read the Science Manual for Canadian Judges (Manual).  A 2013 project of the Canadian National Judicial Institute, the Manual was intended to fill a much-needed lacuna in our legal system.  Most lawyers are awful scientists.  So the publication received little fanfare and I don’t know many who have read it. Judges are appointed from a pool of senior lawyers.  It stands to reason that most judges possess a poor grasp of scientific principles.  The demographic fact that the last time most…

From Law Office to lawPod : The Apple-ization of McCarthys

Yesterday’s Globe and Mail reported, in ‘McCarthy Tétrault’s Tracie Crook leading firm’s radical transformation,’ that the day of the partner’s corner office may one day be relegated to history.  By inverting the traditional office, partners will now occupy fish tanks in the middle of the office, surrounded by exchangeable stations in an open concept work space for support staff, junior lawyers and students.  In adopting this model, the firm evidently made a conscious decision to reinvent the law practice as a creative endeavour, rather than a technical one.  The extent to which lawyers are applied philosophers or glorified clerks, or a combination of the…

Jaggers and the Law Society rule governing trust accounts

Fans of Charles Dickens’ novels will know that his lawyers are practitioners of an obscure art.  In that regard, they are plot devices, agents of change in the course of principal characters’ lives.  None is more iconic than Jaggers, or Mr. Jaggers, in Great Expectations.  The trustee of a sum of money left by an anonymous benefactor to the orphaned working-class boy Pip, Jaggers is instructed to disburse funds necessary to make Pip a gentleman.  The secret identity of the benefactor, not revealed until nearly the story’s end, is the source of a significant malentendu that drives Pip’s actions and character development. No one…

A Self-Harming of Judicial Independence: The Legacy of the Inquiry into Lori Douglas

The Canadian Judicial Council Inquiry Committee regarding the Honourable Lori Douglas is now over.  The embattled Manitoba judge, whose late husband allegedly posted nude photos of her online and encouraged his former client to sleep with her, decided to settle for early retirement after the committee’s November 4, 2014, Ruling on Preliminary Motions, in which the tribunal insisted on viewing the nude photographs of her.  Douglas did obtain a temporary stay of the ruling from the Federal Court, but this step effectively bought her time to bring a halt to the proceedings. Despite the stay and the settlement of the complaint, the CJC’s ruling has damaged…

Lawyers’ Technological Literacy, or Lawyers’ Literacy and Technology

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…

Is belief in law logical?

Many years ago, I agreed to act for an elder of the Celestial Church of Christ, a religious order based in Nigeria.  A member of his congregation had asked him to be a “character reference” on a bank loan.  It turned out to be a guarantee on a sub-prime mortgage.  To make a long story short, my client ended up on the hook for an amount equivalent to twice his annual gross family income, and he had an aggressive creditor after the mortgage company sold the debt on.  By the time he arrived in my office, the congregant had defaulted,…

A Very Canadian “Mexican Standoff” of an American Contest between Executive and Judicial Power

Marbury v. Madison is the considered the seminal decision in judicial review of executive and legislative action.  At least, that is what the U.S. courts have subsequently repeated.  In fact, the 1803 decision of a fledgling American high court represented a Mexican standoff between executive and judicial power in which the limits of the U.S. Supreme Court were sharply defined.  Was Marbury a boundary wall it built to assert its jurisdiction, or one behind which it retreated? One criticism that can be leveled against the Marbury court was that it institutionalized a mechanical, semi-democratic vision of judicial action.  American governments now operate within a constitution…