Legal Feeds Blog
- Data scientist will help decipher firm’s internal data for greater insight
McMillan LLP has announced a plan to work with IBM on new software that will improve accuracy of price models for legal work.
|Tim Murphy says a new collaboration between McMillan LLP and IBM will help bring legal patterns and trends to light, and benefit clients.|
The initiative by the law firm and the technology company will involve the work of a data scientist who will sift through the firm’s internal data to spot legal patterns and trends, as well as boost certainty around pricing.
Tim Murphy, executive partner at McMillan LLP, says the project is focused “on using analytics to provide predictive value,” and moving away from anecdote.
“One of the big problems law firms have is that every lawyer is an independent pricer and manager of legal services,” says Murphy.
“What we’re trying to do is bring the skillset of all of them up, by virtue of providing them with reliable, objective data, not just their anecdotal personal experience as a basis for pricing, staffing and that communication with a client.”
A news release announcing the project said it will be “powered by IBM’s comprehensive predictive analytics system, SPSS, and running on IBM Cloud, the platform offers advanced algorithms and techniques that aggregate, analyze and interpret McMillan’s internal data to strengthen the decision making process.”
Internal data that will be used includes billing information, or time spent by lawyers on a file (tracked by areas such as client, matter, lawyer, partner, associate, value, time or office).
There could be further analysis on the number of documents created, how many drafts were done, and how many people participated in the process.
“All of that is buried in the technology we already have; what that reveals is what this [data scientist] is skilled in,” says Murphy.
For example, Murphy says a sample could be taken of an area of law where services are provided on a regular basis, such as the purchase and sale of a business. Lawyers may act for the seller or the buyer or one of the bidders, he says.
In the new initiative, the data scientist will use predictive software to analyze past deals the firm has participated in to “produce a set of learnings to have a richer conversation” with clients, says Murphy.
This might mean studying a number of past deals that the firm has participated in, says Murphy, to illuminate a “more informed” discussion around pricing for legal services.
“We can have a way richer conversation with our client, give them some comfort and insight into the pricing,” says Murphy.
Or, it could mean gathering intelligence to share with clients about where potential pit-falls may lie, thereby helping prevent a “busted deal.”
“You think about the power of that information both from the client perspective and from our perspective, we think it has huge potential,” says Murphy.
He says it will also assist the firm in figuring out how to staff particular files.
“[T]here is a degree to which the legal industry is still like a guild, built on the model that was almost pre-industrial, and is slowly catching up, and it’s really obviously market pressures that are driving the change,” says Murphy, who says the “drive is to be one of the most innovative firms.”
“We think one of the ways in which we can help achieve that goal is through the use of data and analytics, and so that’s why we’re excited about this collaboration,” he says.
McMillan LLP has about 280 lawyers in six offices, including in Vancouver, Calgary, Toronto, Ottawa and Montreal. It also has an office in Hong Kong.
The ambition is to have the first results of the project this fall, says Murphy.
Findings will be shared with the law firm’s lawyers, who can then share the information with clients.
Part of the drive will be to connect with in-house counsel, says Murphy.
“What the focus of the firm is, if we’re going to be an innovative supplier of legal services, our view is we’re going to have to have a different kind of discussion and relationship with in-house counsel, because we know they’re looking for better-informed external counsel who can provide value to them,” says Murphy.
McMillan LLP won’t be the only beneficiary, says Murphy.
“From the IBM perspective, their interest is they’ve got this platform, they’ve not seen it used in a legal context, so it’s an opportunity for them to see how it can be used and see whether it creates a market opening for them, and that was their interest in collaborating with us, so we’re quite keen on it, and we think there will be learnings in both directions,” says Murphy.
|Breana Vandebeek represented one of the appellants in a case examining when police can search a car without a warrant.|
Two recent cases heard together by the Court of Appeal examining when police can search a car without a warrant had very different outcomes.
In R. v. Dunkley and R. v. Ellis, both appellants were convicted of weapons offences based on evidence that was found in their cars after police seized them as abandoned vehicles. The appeals concerned the authority of police to conduct such inventory searches of abandoned cars, under s. 221 of the Highway Traffic Act, and how that interacts with the right to unreasonable search and seizure under s. 8 of the Charter.
At the heart of both proceedings was whether the defendants abandoned their vehicles when approached by police. The court granted Norman Dunkley’s appeal, but it dismissed that of Winston Ellis.
Lawyers say the decisions are the first two cases at the Court of Appeal that deal with the police’s power to search an abandoned vehicle under the Highway Traffic Act.
“It’s really significant in terms of the idea of when the police can seize a vehicle as being abandoned,” says Mark Halfyard, a lawyer with Rusonik O’Connor Robbins Ross Gorham & Angelini LLP, who was not involved in the cases.
Dunkley was arrested after he ran away from the police outside a gas station when they approached him, leaving his car behind. The police searched his car without a warrant and found a handgun as well as a Taser. In his trial, he applied to have the evidence excluded under s. 24 of the Charter.
The trial judge found the police had reasonable grounds to detain Dunkley and to search his car.
The Court of Appeal, however, disagreed.
In the decision, Justice William Hourigan said the trial judge “made no finding whether the police had reasonable and probable grounds to arrest the appellant at the time of the search.”
Hourigan said the police had reasonable suspicion but not the reasonable grounds required. Hourigan added that the search could not be justified under S. 221 of the Highway Traffic Act, as there was no indication that Dunkley had abandoned his car, which was parked in a the gas station parking lot.
“When the officers confronted the appellant, he took off on foot,” he said.
“This could be consistent with abandonment but, without more, it is difficult to conclude that he intended to abandon his vehicle.”
The court allowed Dunkley’s appeal, the evidence was excluded and he was given an acquittal.
“The courts are really saying it’s a fact-specific determination,” says Dunkley’s lawyer, Breana Vandebeek.
“There’s still this factual determination on a case-by-case basis as to whether or not a vehicle is going to be abandoned or not,” she adds.
In Ellis, the court dismissed the appeal of Winston Ellis who had been racing in a car when police started to follow him. He parked the car and walked away before eventually being arrested for careless driving. Police searched his pockets, found his car keys and then searched the car and discovered a loaded handgun.
Ellis applied to have the handgun excluded, arguing his rights had been breached under s. 8, 10 and 9 of the Charter. The trial judge, however, ruled that the police were authorized to search the vehicle under s. 221 of the Highway Traffic Act.
In this instance, Hourigan agreed with the trial judge and dismissed Ellis’ conviction appeal. In Dunkley, Hourigan said the main difference between the two factual scenarios was that Ellis “parked his vehicle with the intention of distancing himself from it, and that he left it on a private driveway where he knew it could not legally remain.”
In his appeal, Ellis also challenged the fact that police searched his pockets and seized his car keys, saying it violated his s. 8 rights. The court found that this was not a violation as the police had learned that Ellis was affiliated with a gang and had a previous firearm conviction.
“It’s unclear in the future how this is going be applied,” says Ellis’ lawyer, Candice Suter.
“I think it does need to be limited to situations where there is additional information.”
Toronto lawyer Sean Robichaud says the Ellis decision will make it easier for police to justify warrantless searches of vehicles when they have a suspect in custody.
“It may be argued this is for limited circumstances, but my view is that practically speaking it applies to any arrest where an individual is connected to a vehicle,” says Robichaud, who was not involved in either case.
Robichaud says s. 221 of the Highway Traffic Act should not be applied to circumstances such as the Ellis case.
He added that it’s meant to give police the power to seize abandoned vehicles at the side of the road and “not to circumvent constitutional rights protected under s. 8 by warrantless searches pertaining to a criminal investigation.”
Halfyard says the differing decisions ultimately came down to a difference in the factual scenarios of the two cases.
“The two cases and remedies came down to a factual distinction as to how far along the investigative process the police were before they came across the accused in the vehicle and the actual circumstances of the abandonment,” he says.
“In one it was obviously much more clearly abandoned than the other.”
That being said, Halfyard says there is still a valid concern that the police could overstep their authority and attempt to use the Highway Traffic Act to try to justify warrantless arrests.
“There’s always a worry that the police use an inventory search as a pretext to not get a judicial authorization like a warrant.”
Man dead after vehicle slams into tree in Brantford, Ont., Canadian Press
FIFA president cleared of possible ethics violations, The Guardian
|James Morton often represents lawyers before the Law Society Tribunal. He says in this case the tribunal got it right.|
Foreign judgments against an Ontario lawyer will be considered in his discipline proceeding at the Law Society of Upper Canada, the Law Society Tribunal has found.
Jussi Kivisto, who is licensed to practise law in Ontario, was disbarred from the bars of both Florida and Illinois for charging “excessive fees” in estate matters. A Florida default judgment against Kivisto in particular brings his conduct and behaviour into question. The judgment describes Kivisto, who refused to participate in the Florida proceedings, as “just plain mean, nasty, and rude.”
“Through a series of acts, as set forth hereinafter, respondent has shown and continues to show a willful, deliberate, bad faith and contumacious disregard to the order of the court through his own words and through the nature of these proceedings,” the default Florida judgment reads. “The acts he has voluntarily committed to perpetrate on the court were solely designed to delay, confuse, and somehow bring to a halt the disciplinary proceeding.”
The Law Society of Upper Canada now wants to rely on those findings as part of its case against Kivisto for conduct unbecoming a lawyer. The three-person law society tribunal panel said this is the first time the question of whether foreign judgments could be used to prevent a lawyer from re-litigating issues or challenging facts was brought before it.
“The purpose for which the parties seek to have this panel recognize the judgments is not to enforce the judgments but rather to have this panel give them preclusive effect, prevent re-litigation, and accept the facts and findings giving rise to those judgments,” said the tribunal, which was chaired by John Callaghan. “In this regard, this case is the first time the issue of recognition of a foreign judgment has been fully presented in a Law Society of Upper Canada discipline proceeding.”
The tribunal went on to unanimously conclude that the American rulings were fair game, given the findings followed a process considered fair by Canadian standards. It rejected Kivisto’s argument that the judgments were a result of a fraudulent process.
“Provided that the process followed in a foreign disbarment proceeding meets the requirements for recognition and enforcement in Canada, there is no principled reason why a law society hearing panel ought not to be able to recognize foreign discipline orders from Florida and Illinois,” the tribunal said. “Each of those jurisdictions has a process that allows lawyers to know the case they must meet, permits them to call evidence, and allows for an adjudication before a neutral adjudicator.”
Still, the tribunal said it has discretion to determine what weight, if any, will be given to the specific findings the law society wants to rely upon. “Obviously, the weight will depend upon the use to be made of any fact or finding and the nexus of that fact or finding to the matters in issue in this proceeding,” the panel said. “These issues will be determined on the hearing of the merits of this matter.”
Kivisto did not respond to an e-mail request for comments, and he could not be reached at a number the Florida bar lists for him.
James Morton, civil litigator at Morton Karrass LLP, often represents lawyers before the Law Society Tribunal. He says in this case the tribunal got it right.
“Certainly, it’s appropriate to look at the conduct of a lawyer outside of the jurisdiction because if somebody is doing something utterly terrible in another jurisdiction, it makes sense to ensure that that kind of conduct doesn’t repeat itself in Ontario,” Morton says.
In the civil context, Morton says judgment obtained in Florida would generally be binding in Ontario unless there’s evidence that the judgment was obtained improperly. “I would say that that should be the test for law society matters as well,” he adds.
Missing Calgary girl found safe and sound in B.C., Canadian Press
A B.C. Supreme Court judge has ordered the provincial government to scrap its three-year pay hike program for B.C. provincial court judges.
In the latest in a series of legal disputes over salaries, the court was asked to assess the remuneration and associated benefits for judges of the Provincial Court of British Columbia for the third time in four years.
In Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General), the government proposed raises of 1 per cent, 1 per cent and then 1.5 per cent over the three-year period of 2014-17, which was less than what the Judicial Compensation Commission, an independent body that oversees judges’ remuneration, had recommended. The JCC proposed raises of 2.9 per cent, 1.5 per cent and 2 per cent over the same three years.
In his ruling, Justice Christopher Grauer said the government’s counter-proposed, lower increases “failed to meet the test of rationality in concluding that the JCC’s recommendations were unfair and unreasonable.”
Grauer did not, however, go so far as to accept the association’s request he implement the JCC’s proposed rates.
“It is not for me to set salaries. It is not for me to assess competing priorities for public funds. That . . . is the government’s responsibility, for which it is answerable to the electorate,” he said, adding, “the process is key.”
Under the Judicial Compensation Act, the JCC is tasked with reviewing provincial court judges’ salaries every three years.
As Legal Feeds reported in March 2015, the recommendations from the 2010 JCC report were implemented after the B.C. Court of Appeal ruled that provincial court judges are entitled to raises based on the consumer price index. In the fall of 2015, the dispute was settled for good after the Supreme Court of Canada refused to hear the provincial government’s case for overturning the appeal court ruling.
At that time, the current disagreements over the JCC’s more recent recommendations for 2013 increases had already begun.
Pay hike for provincial court judges denied by B.C. judge, Canadian Press
Woman dies after collision with dump truck in Pickering, Canadian Press
Probe into murdered indigenous women names commissioners, Canadian Press
- Independent advisory board instructed to look for bilingual candidates
Prime Minister Justin Trudeau has announced a new process for judicial appointments to the Supreme Court of Canada, including a seven-member advisory board that will compile a short list for consideration.
|Susan Ursel is the sole Ontario lawyer who will be part of the new seven-member independent advisory board for Supreme Court of Canada judicial appointments.|
Applications for the spot that will be vacated by retiring Justice Thomas Cromwell can be submitted until Aug. 24.
“The Supreme Court of Canada is respected nationally and internationally for its excellence — it is recognized as a model of a strong, independent judicial institution. This is due in no small part to a tradition of appointing only the most exceptional and impressive individuals to the court,” said Trudeau in a news release that stressed the introduction of “an open, transparent and non-partisan process that will help ensure that the best, most well-qualified people reflective of Canadian society are named to Canada’s top court.”
“For the first time, any qualified Canadian lawyer or judge may apply for appointment to the Supreme Court of Canada through the Office of the Commissioner for Federal Judicial Affairs,” said the news release.
Candidates for the job are expected to be “jurists of the highest caliber, functionally bilingual, and representative of the diversity of our great country.”
The board will review candidates who submit their names for consideration, then whittle it down to a short list of three to five people for the prime minister to weigh.
Other big changes mean that once-private information related to the process will be now be shared with the public, including the assessment criteria the board will use to select its top picks, the questionnaire all applicants must send in and the answers provided by the prime minister’s chosen nominee.
“The Minister of Justice and the chair of the Advisory Board will appear before Parliament to discuss the selection process. A number of Members of Parliament and Senators — from all parties — will also have the opportunity to take part in a Q&A session with the eventual nominee, before she or he is appointed to the Supreme Court of Canada,” said the release.
Emmett Macfarlane, an assistant professor of political science at the University of Waterloo who specializes in the Supreme Court of Canada, says he likes the changes, such as making the nominee’s questionnaire public.
“For the most part, I think they’re a very positive step towards enhancing the transparency of the process,” says Macfarlane, who said an issue “with the old process and its very opaque nature” were gaps in the process when it came to “Canadians being able to get a bit of an understanding of the judges and how the court actually works.
“It’s important for there to be — not a formal vetting process, that might be too harsh a word — but elements of the process that actually give us a sense of who these people are before they’re formally appointed. And what this new process allows, in a couple of ways, is various modes of screening,” he adds.
The seven members of the advisory board include two lawyers chosen by the Canadian Bar Association and the Federation of Law Societies of Canada, a retired judge selected by the Canadian Judicial Council and a legal scholar put forth by the Council of Canadian Law Deans. It also includes another three people chosen by federal Minister of Justice Jody Wilson-Raybould, including two people who are non-lawyers.
Former prime minister Kim Campbell will lead the board. She is currently the founding principal of the Peter Lougheed Leadership College at the University of Alberta. Susan Ursel, who is a partner with Ursel Phillips Fellows Hopkinson LLP, is the sole member from Ontario.
Ursel is also chairwoman of the Canadian component of the African Legal Research Team.
The board also: includes Camille Cameron, dean of the Schulich School of Law at Dalhousie University in Halifax; Jeff Hirsch, president of the Federation of Law Societies of Canada and a partner with Winnipeg law firm Thompson Dorfman Sweatman LLP; Richard Scott, former chief justice of the Manitoba Court of Appeal and current counsel, arbitrator and mediator with Hill Sokalski Walsh Trippier LLP in Winnipeg; Lili-Anna Pereša, a trained engineer who is president and executive director of Centraide of Greater Montreal; and Stephan Kakfwi, a former premier of the Northwest Territories and president of the Dene Nation.
Ursel told Legal Feeds by e-mail that she is “delighted and honoured to be a member of the advisory board.
“I am looking forward to working with my colleagues to recommend a short list of qualified functionally bilingual candidates for consideration by the prime minister for an appointment to the Supreme Court of Canada,” said Ursel.
“I am particularly pleased to be able to assist in a process which I believe will make an important contribution to the justice system in Canada.”
Eugene Meehan, a lawyer at Supreme Advocacy LLP and former executive legal officer at the Supreme Court, told Legal Feeds by e-mail that “given how long the process for selecting Supreme Court justices has been a concern, having a clear process set down in writing is a welcome change for the legal community and public alike.
“I don’t see it as a drastic change but instead a lifting of the veil on the process which has been used — in various iterations — to consistently ensure our top court has a strong bench,” he added. Meehan also said, “The bilingual requirement is welcome, but we may see some challenges as the eligibility requirements are constitutionally protected.”
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