Legal Feeds Blog
Richard Susskind, one of the legal industry’s leading prognosticators, was in Toronto yesterday promoting his new book, The Future of the Professions. It prophesies a massive technological disruption in how expertise, legal and otherwise, is delivered.
|Daniel and Richard Susskind were in Toronto yesterday promoting his new book, The Future of the Professions. (Photo: David Dias)|
This time, he and his son Daniel — himself: a senior adviser to the British government and an economist of some renown — are taking a broader look at the professions. The co-authors sat down with Legal Feeds before the book launch to talk about what the future holds for lawyers as advanced computer systems and artificial intelligence become a reality.
Legal Feeds: Why should lawyers care about how different professions — teachers, accountants, and doctors — are using technology?
Richard: What’s happening in law is happening right across the professions, and we can actually look at other professions and learn about what’s likely to happen in law — not least because law is more conservative than other professions, so we’ve got insight that we can gain from all of them . . . because they face the same challenges and because they’re a few years ahead.
LF: Does that mean that these other professions can give lawyer a glimpse into what their future holds?
Richard: By and large, I think it’s fair to say the legal profession is at the back of the professional groups in terms of uptake. But there’s nothing inherent in the nature of legal work that means that what’s happening in other professions shouldn’t also happen in law. . . . The major accounting firms are probably a decade ahead in some of their uses of technology. And while they weren’t competitors, that might not have been an issue, but they’re now direct competitors.
LF: Will analyzing the technological evolution of these other professions give law firms the potential to avoid some of the turmoil?
Richard: I think if you’re wanting to give your readers the hope of a soft landing, I think that would be to mislead them. . . . The looming nightmare, I suppose, for traditional lawyers is that an Amazon in law comes along and does to law what Amazon did to bookselling. My gut tells me it’s unlikely to unfold in as simple a way as that because the market is far more complex . . . but we should expect that large parts of legal practice will be done very differently, and that these new techniques are unlikely to come from the mainstream traditional providers.
LF: So who are likely to lose their jobs? Secretaries? Paralegals? Associates?
Daniel: One of the unhelpful things we do when we talk about the future of work is, we tend to talk about jobs. So we talk about traditional lawyers, legal secretaries, things of that sort. Why is that unhelpful? Because it encourages us to think of the work that professionals do as monolithic indivisible lumps of stuff, whereas in actual fact when you take any professional’s job and look under the bonnet, they perform lots of different tasks, lots of different activities in their job.
LF: But certainly some of those activities can be done by a computer and some can’t, right?
Daniel: Even for the most prestigious professionals, when you break down their work into their component tasks, it transpires that many of those tasks can be done differently — either by other people using technology or by technology alone. And this task-based approach, trying to recognize that professional work isn’t a lump of stuff of a given difficulty, and instead is composed of lots of different activities and tasks is I think quite an important thing to do.
Richard: I think it’s pretty fair to say that a lot of the work of paralegals, a lot of the work of fairly junior lawyers, if you look at things like document review, that machines are now in some of the tasks they undertake outperforming them. But if because you’re a senior associate you think you’re safe, I think that would be a false level of comfort. . . . One’s career prospects we believe depends on one’s adaptability. If you think you’re going to carry on doing the work that an associate has always done, I think you’re going to be disappointed.
LF: What’s timeline for this, 10 years, 20, 30?
Richard: In the book we expressly say we are not pinning ourselves down to dates. . . . But we reckon that the ’20s is going to [be about] redeployment rather than unemployment, by which we mean, there’s a whole lot of new roles one needs to take on, a lot based on technology. Whether it be the knowledge engineer, the systems designer . . . but once one gets into the ’30s and ’40s, one can predict a more fundamental decline of the traditional professions.
Daniel: It’s not the case that people are going to wake up tomorrow and find an algorithm sitting there and your job has been replaced by a robot. What we’ll see is tasks here and tasks there — a gradual change driven by technology. A relentless change but a gradual change.
LF: Do you think the law societies will stand in the way of this change? There has to be some kind of professional regulation, doesn’t there?
Richard: Do I think, though, that the professional bodies are likely to be major obstacles to some of this change? I think, for the general population, the answer is yes. . . . But it’s not professions or free-for-all. We can have other providers in the game, but being regulated in different ways. But, again, we want a task-based approach to this. Some tasks are so crucial that they require deep expertise and they require maximum client protection. Others are fairly routine and repetitive, and we think that, although they still need to be regulated to some extent, you don’t need the same severity of regime.
LF: What do law firms need to be doing right now to prepare for the new reality?
Richard: Often what lawyers want is what I call “off-the-shelf: competitive advantage.” They want to know what’s the answer really. But it’s really about thinking more fundamentally about issues such as market opportunity, differentiation, competitive advantage, all these notions that sound for most lawyers, I’m afraid, like management jargon — but they have very important applications. For the first time ever, law firms need to be able to engage in long- and short-term strategic planning. . . . As a firm, you need to allocate a group who think deeply about the way the market’s changing, the opportunities and threats that that throws up for you. You need to identify the markets you think you can have a sustainable offering in. You need to think about the ways you’re going to compete.
Toronto boy seriously injured in dog attack, Canadian Press
Alleged tobacco-smuggling ring busted in Quebec, Canadian Press
- But why changes a system that’s had one jury trial in 15 years?
New Brunswick’s attorney general is proposing regulatory changes that will get rid of civil jury trials, except in a few types of actions.
|'It’s a huge step backwards,' says Barry Mason.|
The proposal, which is open to public review and feedback until April 12, is both “aggressive” and “ridiculous,” say lawyers.
“It’s a huge step backwards,” says Barry Mason, a partner at Pressé Mason in Nova Scotia.
“The real value of the jury system is that it keeps the judicial system in line with what society is thinking. Judges alone don’t always have the pulse of the community,” adds Mason, who also works on cases in New Brunswick.
The proposal is looking to do away with juries in all civil cases except slander, malicious arrest, malicious prosecution, and false imprisonment actions if the court is satisfied it is “just and convenient.”
But even in the cases covered by the exception, “if a trial by jury is ordered under paragraph (2), the costs of the jury are to be borne by the parties and the motion judge may determine what proportion of those costs each party is to pay, if any, or leave that determination to the trial judge,” the proposed amendment reads.
The proposal is an affront to access to justice, says Mason, adding legal costs are already prohibitive to litigants in the civil justice system without the added requirement of paying juries.
“There’s already enough costs in the system, you don’t need to be burdening people even more,” Mason adds.
To Brian Awad, a partner at McInnes Cooper’s the litigation team, the proposal to do away with juries in a swath of actions is more drastic than the plan to charge for juries. While charging for the cost of juries is “offensive,” eliminating the option of a civil jury trial is “the really aggressive provision,” he says.
If the proposal passes, Awad says the option to be heard by juries will go away for his entire practice.
“As a lawyer, I’d prefer to continue to have that option,” he says. “I don’t think it’s necessarily the case that in all cases, a judge is the better judge than seven citizens,” he says.
Awad, who practises in Nova Scotia, says it’s hard to understand the rationale for the proposal since there aren’t many civil jury trials in N.B. anyway.
“Why are they doing this? There’s not a flood of jury trials in New Brunswick as far as I’m aware,” he says. “Why take such a strong position that’s going to upset people...to save what seems to be very little money?”
The N.B. attorney general’s office admits the civil jury system is rarely used. In fact, according to an e-mail from office of the Attorney General spokeswoman Anne Bull, there may have been one trial by jury in the province in the last 15 years.
“The existing rule on civil juries dates back to the 1930s. If used, it lengthens civil proceedings and adds complexity for the parties involved in a dispute, compared to the usual procedure of civil trials by judge. The procedure has been abolished in Quebec and at the Federal Court level. Further, provisions requiring the parties to pay the cost of civil juries exist in most Canadian jurisdictions,” says Bull.
The proposed regulation comes after discussions between the AG’s office, the Rules Committee established under the Judicature Act, and the bar, says Bull.
“It is important to note as well that these are draft regulations only and have been posted for public review. We welcome all suggestions and will take them into consideration when the final version of the regulations is drafted,” she adds.
Jurors in New Brunswick are paid $20 for a half-day’s attendance or less than four hours and $40 for full day’s attendance. If a trial last 10 days or longer, a juror will be paid $40 for each half day and $80 for each full day of attendance starting on day 10 of the trial. Juries may also be compensated for meals and travel expenses.
After initially detaining an Ajax, Ont., man under suspicion he might commit a terrorist act, the RCMP has charged him with a terror-related offence.
|Anser Farooq, said Mohamed’s arrest was triggered on the basis of allegations that his client was planning to go overseas to pursue terrorism.|
According to The Canadian Press, police charged him first with two minor weapons offences related to a hunting knife, but have now also charged him with participation in a terrorist group.
Mohamed's lawyer, Anser Farooq, said Mohamed’s arrest was triggered on the basis of allegations that his client was planning to go overseas to pursue terrorism, though he noted his client had not been charged with this. He did not say who made the allegations.
Farooq said it was not clear what the RCMP believed Mohamed was planning.
The initial arrest on “preventive” measures could give Mohamed’s lawyers grounds for a challenge, says one criminal defence and constitutional lawyer.
“Given he was originally apprehended under preventive detention or subject to a peace bond, I would be surprised if his counsel did not mount a constitutional challenge to those provisions,” says Annamaria Enenajor, a lawyer with Ruby & Shiller Barristers in Toronto.
“I think when they were being passed, or in the discussions surrounding them as well as afterwards a lot of issues with respect to their potential breach of Charter rights was flagged and I think those issues still stand.”
Enenajor says preventive detention lowers the threshold for preventive arrest and detention and allows someone to be detained on the mere suspicion they are involved in a terrorist activity.
“I think that would attract the scrutiny of s. 7 of the Charter. So would the use of the peace bonds under 810.011 [of the Criminal Code] — based on the fear a person may commit an offence related to terrorism,” she says. “There is a lot of ambiguity and vagueness around the legal definition of what is terrorism.”
She adds there is also the “over-breadth of the legislation” and the onerous restrictions imposed on a person subject to the peace bond including surrendering their passport and being subject to requirements to remain in a specific geographic location.
“I think that is quite onerous now that the standard has changed from ‘likely’ or ‘will’ carry out a terrorist offence to ‘may.’ I think there is space there for the courts to see if that would pass constitutional muster — the way the threshold has been redefined by C-51,” she says.
While the Canadian Civil Liberties Association and others have called for an end to aspects of C-51 including preventive detention, the CCLA says in this case things did move quickly to actual charges.
“We’ve been very vocal about the preventive detention provisions, but from what I can glean the story here is evolving,” says Sukanya Pillay, the CCLA’s executive director. “He has now been charged with the weapons charge as well as belonging to a terrorist group. They are specific charges under the Criminal Code so now the preventive detention no longer applies.”
Mohamed was remanded to a bail hearing April 19, which is expected to potentially be three days long.
“I won’t be surprised if he doesn’t get bail,” says Pillay. “This seems to be a situation where the law is taking its course. We have to wait to see how it plays out and what evidence is being brought against him.”
Given recent terror attacks in Brussels, Enenajor says it will be difficult for the government to tackle elements of C-51.
“The public is more likely to be scared and be persuaded by arguments based on fear, but I think any government has to be brave in situations like this and recognize preventive detention is really at odds with our legal tradition of only prosecuting and punishing crimes that have already been committed,” she says. “In these times of great distress and fear our government has to be brave and attune to these Constitutional principles because it’s during these times they come under greatest attack.”
With files from Reuters.
Gordon Stuckless to be sentenced on 100 sex abuse convictions, Canadian Press
In the raft of coverage regarding the not guilty verdict against Jian Ghomeshi for four counts of sexual assault and one of choking, one Toronto lawyer weighed in with an interesting take.
|Jian Ghomeshi leaves court after an Ontario judge found him not guilty on five charges last week. (Photo: Jenna Marie Wakani/Reuters)|
“Certainly, as it regards the Crown and police, I think there was every reason for them to initiate the prosecution of Mr. Ghomeshi given the information they had from the complainants.
“However, as the trial proceeded and further information came to light, it seems to me the Crown and police should have taken a very hard look at the matter and asked whether there was still a reasonable prospect of conviction,” he says.
“Damaging contradictory information was being given to the Crown and police by one or more of the complainants while their evidence was underway, and there was of course the very damaging cross-examination. I think it was incumbent on the Crown to re-evaluate the situation and decide whether they could still safely proceed.”
Rouben says during the trial prosecutors and police were getting more information from the complainants that “contradicted or elaborated on information” they had already received.
“Of course, during the cross-examination a lot of additional information came out of that, in the form of e-mails that it appears the Crown didn’t have. When they kept getting this new information, and it became clear the police and the Crown hadn’t been given full information by the complainants, I think there was an obligation on them to . . . take a step back and consider whether there was still a reasonable prospect of conviction.”
In his controversial ruling, Horkins said the value of one complainant’s evidence suffered “irreparable damage” under cross-examination.
“Defence counsel’s questioning revealed inconsistencies, and incongruous and deceptive conduct. L.R. has been exposed as a witness willing to withhold relevant information from the police, from the Crown and from the Court. It is clear that she deliberately breached her oath to tell the truth. Her value as a reliable witness is diminished accordingly,” said the ruling.
Of the second complainant, Lucy DeCouture, he said she “proceeded to consciously suppress relevant and material information, despite an oath.”
And of the third complainant, Horkins says she “was clearly ‘playing chicken’ with the justice system.”
“She was prepared to tell half the truth for as long as she thought she might get away with it,” he said. According to the 2009 Supreme Court of Canada ruling, Miazga v. Kvello Estate, “malicious prosecution is an intentional tort designed to provide redress for losses flowing from an unjustified prosecution.”
“To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect,” said the ruling.
Rouben says he is not advocating for a malicious prosecution claim by Ghomeshi.
“There’s grounds for it in [the judge’s] decision, whether it’s a wise course of action is a different issue,” says Rouben.
Not all malicious prosecution cases are against the Crown or police. In 2014, the Ontario Superior Court awarded damages to a man who falsely accused another of criminal actions in Drainville v. Vilchez.
This week, the Supreme Court of Canada’s winter session ends. The court will hear three appeals regarding international tariffs, insurance contracts, and an interesting case in which the judge rejected a plea deal submitted jointly by the defence and prosecution.
March 29 – Federal – Canada v. Igloo Vikski
Canada's Supreme Court Chief Justice Beverley McLachlin (Photo: Chris Wattie/Reuters)
Taxation: The respondent, Igloo Vikski, is an importer of hockey gloves. The company was forced to pay a tariff determined by the Canada Border Services Agency, based on the classification of its imports. Igloo Vikski appealed to the Canadian International Trade Tribunal that the gloves should be taxed under a different classification, but the appeal was dismissed. The respondent then appealed to the Federal Court of Appeal, where the appeal was allowed. The SCC will review whether the appeal court decision significantly modifies how a significant number of goods are classified for taxation purposes.
Read the Federal Court of Appeal decision
March 30 – Alberta – Ledcor Construction v. Northbridge Indemnity Insurance
Insurance: Ledcor was developing a building in Edmonton. As construction came to a close, the company contracted debris removal out to a third party, which damaged the exterior of the building. Ledcor claimed the damages against its insurance policy, but was declined on the basis of a clause excluding coverage for “the cost of making good faulty workmanship, construction materials or design. . . .” Alberta’s Court of Queen’s Bench ruled that reasonable expectations of the parties weighed in favour of the applicants’ interpretation of the insurance contract, but was overruled on appeal.
Read the Alberta Court of Appeal decision
‘All-risks’ insurance policies don’t cover all the risks, Stikeman Elliott LLP
March 31 – British Columbia – Anthony-Cook v. R.
Criminal law: Charged with manslaughter, Matthew John Anthony-Cook was detained in both a jail and a mental health facility. He pled guilty mid-trial, after which the Crown and defence counsel made a joint submission that the appropriate sentence was an additional 18 months with no probation. The sentencing judge rejected the joint submission and imposed a sentence of 24 months with three years probation. The SCC will review the test that should be applied when deciding whether to accept a joint sentencing submission.
Read the British Columbia appeal court decision
Appeal dismissed for man who killed volunteer, 24 Hours Vancouver
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Canadian man charged with sexual assault in Denver, Canadian Press
About 100 lawyers attended an event earlier this week to hear three Ontario judges advise on how to deliver compelling advocacy, and discuss diversity on the bench. The sold-out event at Fasken Martineau LLP was a collaboration between the Federation of Asian Canadian Lawyers, South Asian Bar Association, and the Canadian Association of Black Lawyers. Ontario Court Justice Shaun Nakatsuru, Superior Court Justice Steve Coroza, and Ontario Court Justice Donald McLeod spoke on a panel in Toronto.
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