Bill S-4: An Act to amend the Criminal Code (identity theft and related misconduct) came into force on October 22, creating a number of new offences in relation to identity theft and impersonation. As ever, the best way to acquaint yourself with the new provisions is by reading the excellent legislative summary provided by the Library of Parliament.

New offences include the following:

• identity theft (new Code section 402.2(1)) -:- knowingly obtaining or possessing “another person’s identity information in circumstances giving rise to a reasonable inference that the information is intended to be used to commit an indictable offence . . .”
• identity fraud (revised Code section 403) -:- fraudulently personating another person for various improper purposes.
• trafficking in identity information (new Code section 402.2(2)) -:- transmitting, making available, distributing, selling or offering for sale “another person’s identity information, or [having] it in their possession for any of those purposes . . .”

The Canadian Bar Association’s submission concerning Bill S-4 [PDF] is available online. Though certain of their recommendations were taken into account, their worry about the law’s catching de minimis use by young people — e.g. using a borrowed or fake ID to get into a bar — was ignored.

[hat tip: E-Tips]

I am totally exhausted after a day involving a chambers application, client meetings, attempting to settle a high conflict matter likely headed to litigation despite all efforts and then coming home to two children under four with a husband out of town. And, Monday is my day to post on Slaw …

Which leads to me to a little rumination on the ethereal promise of work life balance in the context of private practice law. I am with Jordan Furlong, whom I met coincidentally for the first time in person at a CBA Work Life Balance function, that we are in a post work life balance era. Any private practice lawyer with a full practice knows the all consuming nature of the job – juggling multiple client matters, advocating for people at often the worst times of their lives, working to fix or prevent very serious problems, keeping up to date with ever evolving law and practice, marketing, managing staff, managing finances etc. Many lawyers also have a deep commitment to public service and donate many hours to pro bono matters, serving on boards, mentoring young lawyers and volunteering in their communities.

The ability to “balance” those professional demands with health goals and family time is an ever present balancing act of compromise and second guessing. Which leads me to acknowledging the elephant in the room that often the work life balance issues come up in the context of working mothers. It’s not a coincidence that only 29% of lawyers in full-time private practice in BC are women. I can personally attest that there is nothing more sobering than playing with your toddler on a sandy beach on a sunny Sunday morning, and he picks up the pail like a briefcase, walks the other way and says “Mummy goes to work.”

Nicole Howell of Hamilton Howell said it very well at the recent “great debate” CBA event on work life balance: it’s all about choices. Law is a consuming profession and income is often directly linked to hours put in. Individual lawyers have their own sense of what is important to them, and they have professional choices to make as a result. They can choose to work at larger, traditional firms which have a business model that requires a certain amount of billable fees earned each year per lawyer to remain profitable. Lawyers can choose to work at smaller or more innovative firms which may have lesser or more flexible requirements. The extra or flex time could be used for parenting, to do a PhD or to travel the world. Lawyers can choose in house positions, government or to leave practice entirely. There will be financial consequences to these decisions, for better or worse.

Concurrent with this debate, business pressures on the traditional law firm model are increasing. Younger (often Gen Y) associates, both male and female, are increasingly less interested in committing to significant hourly targets. Clients are increasingly pushing back on paying high hourly rates to subsidize expensive real estate and training for junior associates. Innovative firms are using strategies such as virtual offices, value pricing, document automation and online legal services to erode the traditional law firm client base.

I suspect the “work life balance” debate in law will eventually subside as more law firms are forced to innovate to stay competitive and profitable. More flexible arrangements will be offered to retain scarce and valuable talent. Instead of the lawyers advocating for it, law firm employers will be leading the charge to attract and retain their most valuable asset: their people. Like today, it will be up to individual lawyers themselves to decide what balance means to them and then make it happen. They will just have more choices available to them.

Each year Technorati, the online service that indexes blogs throughout the Internet, dives deep to look at the world of blogs, bloggers and blogging  in its annual State of the Blogosphere. This year Technorati CEO Richard Jalichandra presented it as his keynote to the popular BlogWorld 2009 in Las Vegas in October.  His assessment:

“The state of the blogosphere is strong.”

The report itself is published as a five-part series (plus introduction) with lots of easy-to-read graphs giving the overview of statistical findings:

• State of the Blogosphere 2009 Introduction
• Day 1: Who are the Bloggers?
• Day 2: The What and Why of Blogging
• Day 3: The How of Blogging
• Day 4: Blogging Revenues, Brands and Blogs
• Day 5: Twitter, Global Impact, and the Future of Blogging

I found Day 5 on the impact of blogging to be particularly of interest. If you skip past the discussion of the relationship between Twitter and blogging, there is talk of how blogging has had an impact on both the last U.S. election and the recent Iranian election.

A survey of bloggers show they believe the areas of politics, technology and business are among those on which blogging has the greatest impact:

And they believe politics, technology and business will continue to be impacted, while topics such as green/environment, academics and health will be impacted more:

Graphics source:  Technorati - http://technorati.com/blogging/article/day-5-twitter-global-impact-and/page-2/

Story via Brian Solis.

The New York Times had an interesting blog entry the other day about how one should plan to have one’s digital assets dealt with after death.

The author is not talking about bank or brokerage accounts accessed by electronic means, but about one’s PayPal account, or eBay, or Second Life virtual/real estate, etc — social media assets, as it were — or just personal information that one might not want to survive one’s own ability to control it.

Is this something we should be concerned about in Canada? What would you recommend? Or do most people really have to care at all?

Every week, I travel the world [wide web] in search of interesting new biotech developments.  This week, a smattering of stories from Canada, the U.S. and China are worth noting:

In Canada (and presumably elsewhere as well) Merck put out a country-specific press release announcing the closing of its merger with Schering-Plough.  Merck calls Canada “an integral part of the company’s expanded global presence.”

In the U.S., Congress decided that the shutdown of (Canada’s) Chalk River reactor shutdown was a warning, and passed a bill to stimulate domestic production of medical isotopes.  About 60% of the U.S. supply had been coming from the AECL facility.

In China, all signs point to the country joining the ranks of countries advocating strong IP rights.  This week, a study showed China’s research output doubling since 2004 and a Forbes article noted a copyright enforcement action by Chinese authors.  Not a coincidence.

As always, there’s lots more detail at the Cross-Border Biotech Blog and on the twitter stream @crossborderbio.

Law firms are deserts of positive feedback. At so many of our law firms no news is good news and critical feedback is the only kind going around.

As a lawyer coach I am a woman with a mission: To help make our law firms better places to work. One of the most powerful tools for accomplishing this is something called positive acknowledgement.

Positive acknowledgement is about giving the gift our attention by recognizing when someone has done something well. Positive acknowledgement works when you notice someone’s strengths or what they have accomplished and you tell them that you have noticed and why it’s important.

Whether you are a coach, partner, associate, administrator, or librarian, all of us in law firms have the opportunity to set off a simple but powerful shift in our law firm cultures with this one simple action.

Here’s my request for you — start bringing rain to the desert. Today when you finish reading this article make the determination to offer at least one piece of positive acknowledgement to someone you work with once a week. (To those of you who are already good at this my congratulations and please keep it up!)

Positive acknowledgement sounds like this:

Sally, I just wanted to tell you that I very much appreciated your comments and questions in the practice group meeting today. You helped to point out a very important issue that we could easily have missed.

It also sounds like this:

I see that you caught the error in the date that carried through from the last draft. That was a tough detail to spot. I sure appreciate your great eye for proofing!

And like this:

I want to let you know how much I appreciate your skills as a researcher. The documents you compiled for me on Monday covered all the angles and I was able to put together a comprehensive response for the client thanks to the work you did.

Positive acknowledgement is a vital leadership skill. For lawyers it can have a transformative impact on their work with support staff. One lawyer I know recently started to make an effort to offer her assistant positive acknowledgement and the result was an overnight change in the quality of the assistant’s work and productivity.

Wouldn’t we all like to receive such positive acknowledgement from time to time? If you start by finding opportunities to offer this kind of encouragement you just might find it coming back to you. I personally think it is best to watch for the meaningful opportunities rather than handing out compliments like Halloween candy. You would be surprised how many opportunities for this kind of feedback occur when you are watching for them.

It is also good for your profile at the firm and in the legal community. The legal grapevine moves swiftly. If you are a lawyer who is hard on staff and colleagues the word gets out fast. I recently heard a law firm administrator tell a group of associates how important it is that they carefully handle their relationships with support staff because a reputation for being hard to work with can follow you throughout your legal career.

One variation on this theme of positive acknowledgement is what Mark Goulston in his book Just Listen calls the “Power Thank You”:

Clearly there is nothing wrong with saying thanks when someone helps you out. In fact, that is usually the right thing to do. But if you stop there your communication is merely transactional (you did something nice for me, so I’ll say a polite thank you). It doesn’t touch the other person or strengthen the relationship between you.

That’s why if you’re deeply grateful to someone who’s done an exceptional favour for you, you need to express that emotion by going beyond the plain words “thank you” and instead offer a Power Thank You. When you to this, your words will generate strong feelings of gratitude, respect, and affinity in the other person.¹

Here’s an example of how a “Power Thank You” could be used in a law firm:

Mark, a partner speaking to an associate: Mary, could I talk to you for a moment?

Mary: Sure Mark. Do you have any questions about the work I did on the file last night?

Mark: No, no questions. In fact I really just want to thank you for staying so late to research that question for me. The memo you prepared was excellent and gave me just the information I needed for the meeting with the client this morning. The client really appreciated the angle you uncovered and he is going to be able to move forward with the deal. I really appreciate the extra hours you put in so that I could go home and deal with my family emergency.

Mary: Oh it was no problem, I was just happy to be able to help out.

Mark: It’s good of you to say that but I would guess that it did in fact cause some problems for you. I know you had to call your husband so that he could leave work early to pick up Matthew at daycare. I also know you will have missed Matthew’s bed time and that today you must be really tired from pulling such a late night. The quality of the work you produced under such a time crunch was impressive as is your dedication.

Mary: Thanks Mark. I have to admit I was worried I may have missed something important last night.

Mark: You missed nothing! In fact you made me and this firm look really great to our client. I am very grateful for help and that you are a part of the team here.

You might be laughing now or shaking your head because this just doesn’t happen in law firms. That’s why it is our job is to make it happen. Next time someone goes the extra mile for you give them a “Power Thank You”. This is an incredibly effective leadership tool for strengthening your relationship with support staff, colleagues and others.

The “Power Thank You” is for special occasions when someone has gone the extra mile. I know a managing partner who instead of the “Power Thank You” would send flowers. Flowers are nice but they aren’t nearly as effective as some carefully thought out words that acknowledge the individuals contribution, the special effort it took, and the results that were achieved.

You might be wondering “what about the importance of critical feedback?” Getting useful information on what can be improved in our performance helps us to develop as professionals. The power and effectiveness of critical feedback is strengthened when positive feedback is also widely used in the work place. A workplace where only negative feedback is voiced can cause professionals and staff to become depressed, dejected, unmotivated and demoralized.

Have I got you convinced? The law firm culture shift starts today with just a few considered words of acknowledgement for a colleague. Start now and observe effects. Join me in bringing rain to the desert today.

Notes from a keynote speech by Justice Iacobucci at the Federation of Asian Canadian Lawyers (FACL) Fall Conference.

Grew up in the East End of Vancouver, where there was lots of diversity of people from many backgrounds.  Justice Iacobucci noted that he entered the law exactly 50 years ago, in 1959, when he graduated from UBC.  There wasn’t a lot of visible minorities in the profession back then. There also wasn’t a lot of “funny names” in it back then.  He recalls that when he told by one of his undergraduate professors that he wanted to do law that he shouldn’t go, “You don’t have the right name for it.”  But another told him that he should, because “Canada is changing.”

Canada is changing, and the proof is the numbers of visible minorities that are entering law, a profession that historically has not been welcoming to women or minorities. But there is more to do with inclusiveness, and creating strength in diversity.

He started by reminding us all that everyone in Canada can be put into two groups – native Americans, and the rest of us are immigrants.  It’s just a question of timing.  We’re all immigrants.  Many come with values, and not much else going for them.  But those values, with an opportunity, can accomplish a lot.

Not all of us have had those opportunities.  The focus of Justice Iacobucci’s talk was on the Aboriginal Residential School file, one of the most challenging files he was exposed to.  The talk was not about the legal aspects, but rather how a country deals with its past in a way that is fair and honourable.

Most of the residential schools were in the West, with some in Ontario and Quebec.  There were about 130 schools with approximately 130,000 students, but the records are incomplete. There were similar schools in the U.S. and Australia.  The intent was to assimilate these populations into society by forcibly removing them from their families and putting them in schools for up to 12 years.  They were not allowed to retain their language, culture or religion.

Some Canadian officials described it as “beating the Indianess out of the children.”  Another said, “to elevate the status of the Indian from a savage,” a role akin to one played by Christian missionaries in various parts of the world.  Egerton Ryerson said in his 1847 report to the Legislative Assembly of Upper Canada,

Their education must consist not merely of the training of the mind, but of a weaning from the habits and feelings of their ancestors, and the acquirements of the language, arts and customs of civilised life.

Four major denominations of of churches ran the schools.  The Roman Catholic Church operated about 70% of them, followed by Anglicans, United Church, Presbyterians, and one Methodist school.  Although schools made children feel inferior by second-class children, this was compounded by the view of children during this time.  “Spare the rod, and spoil the child.”  Harsh treatment of  young people was commonplace everywhere.  In these residential schools the physical abuse was even worse because of the additional sexual abuse, disease, mental trauma, and separation issues about their families.

After being appointed to represent the Federal government in negotiations to create a settlement, he visited the Saugeen nation in Manitoba, where he met a Chief whose father was on his deathbed and told him,

I apologize, because I never learned to be a parent, and I find it difficult to say I love you.  So please forgive me.

Most of us can think about our parents and siblings, and are blessed with their love and support.  Even having bad parents is not as bad as this, because people rise above these issues. To deal with situations like this during the formative years creates an enormous trauma to an entire community.

Another story he heard was of an 8 year-old girl who saw a car driven to the reserve by a priest, the first white man she had ever seen.  She thought he was going for a ride in the country, but he took her to a residential school, where she stayed for 5 years.  It wasn’t the beatings or the humiliation or even losing her name that bothered her.  The first thing they did was cut off all of our hair and give us numbers.

Mine was 52.  And I’ve never been able to overcome that dehumanization.

There are thousands of other stories like these that he heard.  This episode of our history was brought to the national spotlight in the 80’s when Phil Fontaine publicly shared his experiences as a student of the residential schools, including his personal experience with sexual abuse there.  [Fontaine would go on to negotiate in 2005 the Indian Residential Schools Settlement Agreement and the $5 billion Kelowna Accord, though the latter was canceled by the succeeding Conservative government].

In the following years, legal claims against the Federal government were made, over 15,000.  Class-actions were launched across Canada, eventually totaling 23.  When faced with this the government set up an alternative dispute resolution system to address claims of physical and sexual assault.  Still, a backlog quickly developed and the system could not keep up.

In May 2005 the Federal government announced a comprehensive approach to deal with the issue.  They acknowledged for the first time that there would be compensation for everyone who attended the schools, rather than leaving the claims to the courts or alternative dispute resolution system.  Essential to this move was the redress settlement made for the 21,000 Japanese-Canadians that were interned during WWII.  Justice Iacobuci noted that we were even worse than the Americans because we confiscated internees property and never returned it.

It was at this time that Justice Iacobucci identified as the Federal representative to lead the settlement discussions on behalf of the government.  Without this settlement the claims would go on for years and years, as a continual stain on our national history.  Additionally, many of these students were dying at a rate of 4-5 a day, and for them not to see some resolution of this in their lifetime just added to the injustice.

After 5 months of intense negotiations between lawyers for the claimants,  the government, the churches, and Aboriginal groups, an agreement in principle was reached by all the parties in Nov. 2005.  It was often an intense and unwieldy process, with up to 65 lawyers, who often all wanted to talk at the same time.  It was the largest settlement in Canadian history, of $10,000 for each student’s first year of residence, and $3,000 for each additional year, for an estimated total of $2 billion for all the claimants to over 80,000 former students.  Advance payments were also put in place for the elderly and the sick who may not survive the entire settlement process, which also signaled to the other parties that they were serious about the process.  Age was used as a surrogate for illness because it was difficult to identify terminal illness, so instead an age of 65 was used.

Justice Iacobucci was quite adamant,

You can never get adequate compensation for the loss of formative years in that kind of setting… It’s hard to compensate when a person loses liberty, and this was a form of freedom and liberty.

But it was, just like the Japanese-Canadian case, a symbol of saying there was a wrong, and this is an attempt to show we want to try to make amends for that wrong.

In addition to the advance payment, there was $120 million dedicated to Aboriginal healing to the Aboriginal Healing Foundation. There were quite a number of people disturbed by these experiences, which were aggravated by a number of other social conditions such as poverty, lack of training, education.  These programs were not just for the former residents, but relatives, children, and descendants who may have been affected by these issues.  Lots of changes were made to the dispute resolution system.

But perhaps the most important component was  the Indian Residential Schools Truth and Reconciliation Commission.   They looked at many models, including South Africa and Latin America.  They did not want a formal commission that would subpoena people to come, with lawyers cross-examining them, because it would create reluctance by people to tell their stories.  It was more important that history would record this episode accurately, and not sweep it under some great national carpet to forget.  $60 million over 5 years was provided for this, plus another $20 million for commemoration projects.

The lawyers played a very important role in this process, especially in bringing the public attention to the issue.  But they also had to deal with the issue of their fees, which was not an easy issue to deal with, but an important one.  The question of liability of the churches, which would have bankrupted many of the churches if they were held responsible for the entire amounts of claims.  But they did have to bear some responsibility, and it was decided they would contribute $125 million.

After the agreement in principle, the Martin government was replaced by the Harper government in 2006.  The new Minister of Indian Affairs, Jim Prentice, wanted to ensure they were in agreement.  Although they accepted it, they made some changes, and the final settlement was made in the Fall of 2006.

Class-action settlements have to be approved in courts though, and these claims were spread all across Canada in 9 different jurisdictions.  The judges met in 2 occasions in Calgary to resolve any remaining issues.  Once it was approved by the court, it had to be advertised.  Many of the potential claimants were in remote and northern areas of Canada that were largely inaccessible, even by major forms of media, so the court had to supervise the process with notices going out in unique ways.

The approval rating was phenomenal.

Of the about 80,000 class-action members, only around 350-400 decided to opt out.  If more than 5,000 had opted out, the provisional agreement would have fallen apart.

An apology was brought up on several occasions, which Justice Iacobucci had several objections to.  It’s a prerogative of the government to apologize, not the prerogative of a negotiator to negotiate.  To negotiate an apology robs it of any genuineness, and vulgarizes it as an element of bargaining which lacks sincerity.  Finally, an apology could only be announced after a settlement.  If an apology was announced in advance of a settlement it would be used against the government of the day and compromise their legal position.

He was in the House of Commons when the Prime Minister spoke, and it was one of the most moving moments he has seen.  The Chiefs and representatives of our Aboriginal peoples were there to hear, we are sorry, this was wrong.  It was a moment to remember.  He had never been prouder to be a Canadian, because through so much of this process he was rather ashamed of what Canada had done in our name.

The apology taken together with the settlement was a way of Canada saying genuinely sorry, and a we hold out our hands in the hopes of  forgiveness.  And we’re trying to find a way for us to live in peace and harmony…

[Because of this,] it represents the most satisfying experience I’ve had in my time as a lawyer.

He thanked the government, both past and present, for the opportunity to be involved, and the parties involved to reach a settlement.  He particularly thanked former National Chief Phil Fontaine for his commitment and leadership.

No doubt the legacy of Indian residential schools have a dark side…. but to recognize that history is a necessary step for all of us to build a Canada that all of us, Aboriginal and non-Aboriginal, can be proud of, and for Canada to be a model for the indigenous peoples of the world.

Over the last week, privacy regulators from around the world have been meeting in Madrid at the 31st International Conference of Data Protection and Privacy Commissioners. Canada’s own Privacy Commissioner, Jennifer Stoddart, has not surprisingly had a prominent role in the conference, chairing a plenary session on internet privacy. She was also a speaker at another plenary session on moving towards a global privacy framework. The private sector have been involved in the discussions and it appears that there is growing consensus that the global economy and global internet necessitate global (or at least globally compatible) privacy standards. I haven’t managed to get my hands on the final communique, but Agence France Press sumarizes some of the key principles that will be the basis of of this framework:

AFP: Experts agree on proposed global privacy standards

… Under the proposed standards, data may only be processed after obtaining the “free, unambiguous and informed consent” of the data subjects and it should be deleted when it is no longer necessary for the purposes for which it was gathered.

Data collectors must identify themselves, state in clear language the purpose of the data processing and the recipients of the gathered data.

International transfers of personal data may only be carried out to a country which “affords, as a minimum, the level of protection provided for in the document,” according to the proposed standards, agreed by representatives from privacy protection agencies….

It will be interesting to see where this leads.

Following on our comments this week on law and access, a show on BlogTalkRadio called The Law Librarian has a podcast available of today’s discussion on OA legal resources with Carl Malamud and others. They talk about his Law.gov initiative, the Obama admin., and others. A good listen.

The issue of technology in Canadian Courts is a favoured one at Slaw. Over the past few years there have been developments which hearten those who advocate for the place of technology in Canadian courts. In another positive sign it seems that some advocates in influential positions are making their feelings known. From a recent decision, 2009 CanLII 57448 (ON S.C.), para. 12,

…the time has come to recognize the stark reality that our court, for whatever reason, lags unacceptably behind in the use of electronic communications with our court users. Why this is so remains, for me, a mystery. Law firms, our major users, have embraced electronic media to provide information to potential clients and to service their existing clients. The broad array of technologies they use are described in detail by Richard Susskind in his provocative book, The End of Lawyers? Rethinking the Nature of Legal Services (2008, Oxford University Press). Some provincial tribunals, such as the Ontario Energy Board, offer parties to proceedings before them comprehensive e-filing services. To which one must ask: why not our court too?

And further in para 13,

…in order to provide the users of our court with real access to justice we must make available to them a variety of ways for communicating with the court, including electronic communications. To continue to operate in a “paper world” and to rely on “snail mail”, or old-style faxes, to communicate with those who use our court delays the disposition of proceedings before us, particularly in an area such as applications for certificates of appointment.

It has long been known, that technology will only be embraced by the courts when the technology is embraced by Justices; an opinion such as this is another positive sign that technology is making its’ way into Canadian Courts.

♫ Feel in my heart
the start of something new…♫

Lyrics and music by: Matthew Gerrard & Robbie Nevil, from High School Musical.

The BC Courthouse Library Society is launching their new website today (http://www.courthouselibrary.ca/cms/) which should be ‘live’ shortly (the old site is still there as this is posted).

The new site certainly fulfills their Strategic Direction as set out on their site:

Provision of Legal Information, Products, and Services to Members of the Legal Community:

Goals:

To understand the changing practice of members of the legal community and how they obtain and use legal information.

To design products and services in consultation with members of the legal community to meet their needs and improve the quality of our service.

To optimize access and services for members of the legal community outside the Lower Mainland and Victoria.

This is certainly not your standard library research website.

The full post can be found at: http://thoughtfullaw.com/2009/11/06/a-new-portal/

The Supreme Court has just released the judgment in Miazga v. Kvello Estate, 2009 SCC 51, what would appear to be the final stop in a long and unhappy ride through both the criminal and civil legal systems in Saskatchewan. Essentially, several adults were prosecuted for, and convicted of, sexual assault against children based on what turned out to be false testimony. The adults brought suit for malicious prosecution against a number of people, including the Crown prosecutor, the appellant Miazga.

The Supreme Court overturned the judgment against Miazga, and in so doing set out what is required in an action for malicious prosecution against a public official for a criminal prosecution.

The judgment of the bench of seven was written by Charron J.

Today we’re offering what the menu of one of my much-frequented restaurants might call “Google two ways.” But have no fear: the fact that our favourite double-O agent is the subject doesn’t mean this is business. No, this is about doodles, Google doodles — and particularly some of the hundreds out there that you have never seen before.

The main lode can be found on Google’s Holiday Logos page. This is a truly astonishing collection of inventive plays on the name.

If you’d like a source that’s organized a bit differently, go to Doodle Source, which started collecting the Google doodles available, from countries around the world in August of this year, and has organized them by country (as well as by date). So you can find the Big Bird Google, celebrating the 40th anniversary of Sesame Street, released last Wednesday here in Canada, which you can then compare to the curiously greyscale doodle celebrating the same event in Belgium, with a mouse as the ‘e’. You get the idea.

You can also troll for beauty. My current pick is this recent doodle from Thailand, marking the Loy Kratong Festival:

Though, you might prefer the intricacy and fun of a Wallace and Gromit doodle, this one from Taiwan, among other places:

Okay, so that’s Google one way. The other? Well, how did I know the Thai doodle above was in celebration of the Loy Kratong Festival? After all the text on the page looks like this:

And my Thai is weak. But Google’s is way better. So over to Google’s Translate page, pop in the URL and up comes a half decent rendition into the language of my choice, English in this case.

The HST is coming and its ramifications for those who practice law and those who purchase legal services is going to be extreme.

While other industries (notably mutual funds, auto, and real estate) are all engaged in full-court-press mode as they lobby the Ontario government for exemptions, we in the legal services field have remained disturbingly complacent. The problem is simple to define. Starting in July 2010 when Ontario’s GST and PST are replaced by the new Harmonized Sales Tax, virtually everything, including legal bills, will be subject to the new 13% HST. For those of you who are blessed with leaving the billing headaches to someone else in your firm, clients currently pay only the 5% GST — the 8% Provincial Sales Tax does not apply to legal services. To put it simply, legal bills are going up 8% across the board in every area of law purely to cover the tax consequences.

The implications of this tax grab are dire and far-reaching. Access to Justice is directly threatened by this substantal jump in the cost of legal services. Our courts are already struggling with the costs and burdens associated with an increasing number of self-represented litigants who have been driven to stand alone in court by the crushing burden of high legal fees and expensive court proceedings. The HST will have a direct negative impact on the capacity of individuals to have their cases heard in our Province’s courtrooms. The consequences for civil court cases, spousal support claims and child custody issues are serious indeed, but the devastating impact of this tax will be felt most acutely in my area of practice – criminal law.

The typical defendant in a criminal case already struggles to meet what, by any other legal specialty, would be considered modest legal fees. They grimace to learn that the 5% GST applies to their bills and many will find that the 8% addition imposed by the impending HST is the proverbial straw upon the camel’s back. The HST will force an increasing number of defendants to turn to Legal Aid for assistance — a program who’s utter inadequacy and imminent demise has been well publicized. The only remaining alternative is to stand up in court facing criminal charges alone and unrepresented.

Lest one believe that lawyers themselves will be in a position to fully download the cost of the HST to their clients, I suggest looking at your 2010 Law Society dues and insurance premiums. Both are increasing in part to account for the increased tax burden levied against these programs. In fact, Legal Aid’s own budget will be hit hard as they too must cover the 8% increase creatd by the HST on all the files they currently support.

So, while lobbyists put the spit shine on their submissions to government as to why a new car, new home, or mutual fund, ought not to be subject to additional taxation, how is it that we lawyers appear to be entirely silent on a direct attack against the public’s ability to access the jusice system in which we toil? Time is running out. The tax man cometh.

I have been asked (by an American colleague) if I know of any synopsis of “Canadian cybersecurity laws”. I am told that this expression means some mix analogous to the US Computer Fraud and Abuse Act, covering as well wiretaps, crimes, specific requirements for securing data. Core is private sector rather than critical infrastructure or national security.

It is conceivable that there is a chapter or more in the various collections of learning on IT or e-com law on the topic, which Canadian members of this blog are familiar with. Care to name them? Is there a book in Sunny Handa’s series on IT law? Something in Barry Sookman’s looseleaf collection? Or elsewhere (not to be prejudicial by omission…)? (I suspect my correspondent would limit himself to English-language texts, but readers of this blog may be interested in French texts too.)

I think of the Criminal Code provisions on unauthorized access to computers, and related topics. Also PIPEDA and provincial equivalents generally require personal information to be kept secure, though without a lot of detail about the standards of security to be applied. (I am aware of directives or advisory publications by privacy commissioners, notably in Ontario, about securing data on mobile devices, but not a general standard for data in motion or at rest.) So far the one statute and one bill on data breach notification in Canada do not prescribe standards of care for secure storage.

Law societies have advised lawyers (and in Ontario, paralegals) that they should ensure that their client communications are appropriately secure, but without attempting any standard of security. The CBA’s guidelines on IT security for lawyers could be relevant for practice questions, but they do not constitute ‘laws’ as requested.

So questions:

• What laws exist in Canada that might be considered ‘cybersecurity’ laws, besides the few I have mentioned?
• Does case law make up for a paucity of statute, via findings of negligent or non-negligent handling of data or IT systems?
• Are there audit standards that might reach the level of a law, or at least be worth mentioning in this context? I think I recall a publication of the Canadian Institute of Chartered Accountants on cybersecurity. Has anyone got a reference to that, and an idea if it might be relevant?
• Is there a useful synopsis of them somewhere? Where?

With thanks in advance.

For those with trouble prioritizing which of their next great ideas to undertake, there’s a fun column in the Oct. 20th edition of Business Week: The Seven Deadly Sins of the Innovator:

1. Lust: Innovating in a space you have no business being in.
2. Gluttony: Trying to create too many initiatives with too few resources. Innovation takes emotional and financial capital and focus.
3. Greed: Taking short-term profits at the expense of long-term growth.
4. Sloth: Taking short cuts—not doing the hard work, not following the proven process.
5. Wrath: Being so focused on your competition that you miss the same opportunities your rivals are missing. You can’t read the label when you are sitting inside the jar.
6. Envy: In the context of innovation, envy means launching a “me too” product instead of finding a space you can own.
7. Pride: You won’t give up on your favorite idea—even when the numbers prove you’re wrong.

I’m sure I have a hex on my head with #2. Anyone else care to confess? :)

I’ve groused here many — perhaps, too many — times about the inability of the Canadian music industry to get it together so that we can listen to music over the internet like our neighbours to the south. Imagine my surprise when I stumbled on BlueBeat, a website streaming music here, when Pandora et al. are forbidden to do that. Now imagine my super-surprise when I discovered that BlueBeat is streaming free and marketing MP3s of the Beatles’ music at 25¢ a song. Apple Inc. is unable to strike a deal with EMI for the distribution of the Fab Four’s opus on iTunes — but BlueBeat pulls it off!?

Well, according to the story in ars technica, it turns out that this chutzpah is based on a truly… innovative legal justification. Evidently, Hank Risan, the man behind BlueBeat (and Media Rights Technology, behind it), told RIAA general counsel Steven Marks by email: “I authored the sound recordings that are being used by psycho-acoustic simulation . . . I hope this satisfies your concerns.” Come again? Risan explained in 2001:

Psychoacoustic simulations are my synthetic creation of that series of sounds which best expresses the way I believe a particular melody should be heard as a live performance.

Come again, again?

Unsurprisingly, a copyright lawsuit has been launched against BlueBeat. Stay tuned.

Oh, and for the moment, BlueBeat is still on the tubes.

Today should be the day that the new Nova Scotia Mental Health Court hears its first case. (See the story in the Chronicle Herald .) In effect a criminal court under the Provincial Courts Act, the MHC is staffed by people who are able to understand and assist those who come before it because a mental illness has played a significant role in their criminal behaviour.

More formally, from the MHC Overview [PDF]:

The Nova Scotia Mental Health Court Program is a voluntary offender-based program for adults (persons 18 years of age and older) who have been charged with a criminal offence and have a mental disorder but are competent to participate in the criminal justice system. For this Program, “mental disorder” means a recognized mental illness, including but not limited to schizophrenia and related disorder, mood disorders, anxiety disorders, developmental (mental) delay, organic (acquired) brain injury or head trauma, and co-occurring mental health and substance use disorders where a mental disorder is the primary disorder.

According to a CBC report yesterday, the first hearing may be held up because Nova Scotia psychiatrists have refused to staff the court until a new contract with the government is agreed upon; although, private psychiatrists may be brought in to assist the court.

Toronto was first with a mental health court, establishing “102 Court” in 1998. According to a 2007 Lawyers’ Weekly article, there are mental health courts in Newfoundland and Labrador and New Brunswick.

One of my colleagues, found a colourful way to describe his growing disconnect with finding legal information on his own: “It’s like trying to find a piece of hay in a haystack.”

A Law Librarian blog post offers an excellent visual representation of this concept:

Created by Jessica Hagy, author of Index

These two haystack comments make me think of teaching legal research. The topic has been on my mind a lot lately. And recent debate here at Slaw about sources of legal material tells me that others are likely thinking about it too.

On the weekends, I am a farmer. There is no hay on my property only straw…but the analogy is similar. I have some chickens and there is straw in their habitat. There are many different lengths of straw, some pieces are wider than others, some shine, some are flat, some have grain attached. The chickens like the straw with the grain attached the most.

I am working on a new plan for teaching legal research. I think that the major focus will be on finding straw with grain attached.

Steven Covey is addressing the Drucker Institute live on the web: http://www.drucker100.com/

Not sure if it will be available afterwards.

Thanks Dave Bilinsky for the link.

All the concerns about Google amassing information about users has led to the Internet giant deciding to be more transparent.

You can see a video of Google Dashboard here. The control panel lets you see what Google is collecting about you, and modify your preferences.

The Globe points out that some of the bigger privacy concerns, such as Street View, have still not been addressed.

One of the things I enjoy about reading the Language Log, a cooperative blog by academic linguists, is the ease with which some of the authors slip into high dudgeon. (I suppose I might be like that, too, if my subject were language, in which everyone is an expert.) The latest target of Geoff Pullum’s indignation is U.S. Supreme Court Justice Kennedy, who, it turns out, doesn’t know his active from his passive, when it comes to voice.

The offending passage occurred in the judge’s dissent in Jones v. United States 526 U.S. 227 (1999) where Kennedy is interpreting a piece of federal criminal legislation, and he finds that “there is some significance in the use of the active voice in the main paragraph and the passive voice in clauses (2) and (3) of §2119.”

The legislation reads in part as follows:

Whoever, possessing a firearm . . . takes a motor vehicle. . . from the person or presence of another by force . . . shall–

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”

It is not the case that “if serious bodily injury results” and “if death results” are in the passive voice. (”[S]hall… be fined” is in the passive voice, however; but that is irrelevant to Kennedy’s analysis.)

Pullum:

But heavens above: You can get to be a Supreme Court justice, and write about actives and passives, without having any clue how that distinction is normally defined by grammarians, and without giving any alternative definition? Could we perhaps organize a few lunches at which linguistics department chairs meet with law school deans or something?

I ran a quick check on CanLII of the judgments of our Supreme Court and found a single instance where the court used the expression “passive voice.” Cartwright J. [whose name becomes Cartweight thanks to OCR, something altogether more ponderous] used it correctly, I’m relieved to say, in Workmen’s Compensation Board v. C.P.R, [1952] 2 S.C.R. 359:

The second question passed on by the Appeal Division dealt with the interpretation of s. 16 of the Act which reads :—

16. No compensation shall be payable under this part in respect of any injury, unless application for such compensation is made within one year after the occurrence of the injury, or in case of death within six months from the time of death.

. . .
It may be observed in passing that s. 16 is expressed in the passive voice and does not expressly require the application for compensation to be made by the claimant.

No need for law-linguist lunches here. Not that they wouldn’t be jolly affairs. . .

Cross-posted on The AvoidAClaim blog (www.avoidaclaim.com)

As part of a brief endorsement dated November 3, 2009 in RE: IN THE ESTATE OF Evelyn O’Reilly, et. al., Justice D. M. Brown of the Superior Court Of Justice–Ontario provided some useful direction on the form and content of an order in applications to prove a lost will under Ontario Rule 75.02. Ontario lawyers handling this issue on estate matters will find Brown J.’s comments helpful.

The relevant part of that endorsement is as follows:

[2] My only purpose in writing this brief endorsement is to deal with the form of the order. Since the Rules of Civil Procedure do not prescribe the form for an order made under Rule 75.02, judges see a wide range of language submitted for proposed orders proving lost wills. In order to bring some uniformity to this type of application, I would ask applicants to submit draft orders using the language recommended several years ago by (now retired) Justice Haley. The draft order should read:

I declare that the Will of [insert name of deceased] dated [insert date of will] has been proved and that the copy of the Will adduced in evidence shall be admitted to probate as the last Will of [insert name of deceased] deceased, until such time as the original may be found.

I direct that, subject to the filing of the appropriate documents with the Court, a Certificate of Appointment of Estate Trustee with a Will for the Will of [insert name of deceased] dated [insert date of will] be issued to the applicant(s).

To this language should be added any other orders sought by the applicant, such as dispensing with service of the application, etc.

[3] Judges considering these applications are provided with a template endorsement using this language. Therefore, in order for an applicant to avoid the delays associated with submitting a draft with different language and then having to submit a revised order that tracks the language of the endorsement signed by the judge, the language I have set out above should be used in the draft order submitted with the application record.

The decision is unreported as of today’s date, but I understand will be posted on CanLII next week. In the interim a copy of it is available here.

This came to my attention via the Ontario Bar Association Trusts and Estates Section’s list serve.

University of Toronto law professors Ben Alarie and Andrew Green have posted a draft of a new paper to the Social Science Research Network.

The paper is entitled Interventions at the Supreme Court of Canada: Accuracy, Affiliation, and Acceptance:

“Do interveners matter? Under Chief Justice McLachlin the Supreme Court of Canada has allowed an average of 176 interventions per calendar year and interveners have cumulatively made submissions in half of the cases heard by the Court. This level of activity suggests that interveners are doing something. But what is it that they are doing?”

“In the abstract, there are at least three functions that the practice of intervention might perform. First, hearing from interveners might provide objectively useful information to the Court (i.e., interveners might promote the ‘accuracy’ of the Court’s decision-making). A second possibility is that the practice of intervention allows interveners to provide the ‘best argument’ for certain partisan interests that judges might want to ‘affiliate’ with. A third possibility is that interventions are allowed mainly (if not only) so that intervening parties feel they have had their voices heard by the Court and by the greater public, including Parliament, regardless of the effect on the outcome of the appeal (i.e., the Court might be promoting the ‘acceptability’ of its decisions by allowing for an outlet for expression).”

“It is disconcerting that until now the effects of interventions on the decision-making of the Supreme Court of Canada have not been systematically explored through empirical analysis. A growing body of literature has examined the role of amicus curiae at the Supreme Court of the United States. To date, however, the related literature in Canada is slim and, to the extent it exists, does not deploy the empirical methods necessary to test independently for the influence of interveners on the decisions of individual judges. This work fills this gap in the existing literature and expands our collective understanding of the consequences of the practice of intervention at Canada’s highest court. We find evidence that interveners matter more than many observers might expect. “

They are presenting the paper this Friday at a Symposium on the Role of Intervenors in Public Interest Litigation at the Faculty of Law of the University of Toronto.

I over-think and over-analyze every purchase I make, large or small. One of my favourite sources of information is Consumer Reports Magazine (www.comsumerreports.org).

The December issue arrived at home yesterday. It is “The Best New Electronics” issue and is perfectly timed for anyone thinking about a Christmas electronics purchase. They have tested and give ratings for 400+ hot new electronic products. They give basic info on the features you should consider and list the top performers and values. They have repair history ratings on some products, and tell you where to buy computers and electronics, and how to get the best deal.

If you are in the market for a laptop or desktop, printer, LCD & plasma TV, Blu-ray player, home-theatre system, music player, headphone, point-and-shoot camera, SLR camera or lens, microwave oven and coffee maker you should grab a copy of the December issue of Consumer Reports.

♫ If it should chance to be
We should see
Some harder days,
Empty-larder days,
Why grouse?
Always a chance we’ll meet
Somebody to foot the bill…♫

Lyrics and Music by Lionel Bart, from Oliver!

Ever trying to put a positive spin on a negative situation, the Legal Services Society of British Columbia has just announced that it has reduced 58 positions arising from replacing its regional centers in Kamloops, Prince George, Kelowna, Surrey and Victoria with local agents and an expanded, province-wide call center.

Civil law advice programs such as the LawLINE (the Society’s telephone legal advice service) will be discontinued on March 26, 2010.

It is difficult to figure out exactly what is the root cause of the funding shortfall. Certainly 90% of the funding for the Legal Services Society comes from the Provincial government. The other 10% comes from interest earned on lawyer and notary trust accounts and the LSS’s own investments. There is no question that interest income has declined due to the drop in the economy. The NDP Justice Critic Leonard Krog is stating that the Liberals have cut the legal-aid budget from $96 million in 2001-2002 to $74 million today.

Whatever the root cause of the funding crises, it is certain that the Legal Services Society is facing some empty-larder days. This leaves a bitter taste in the mouth when you consider that CBC News just reported on Oct 22, 2009 on the BC Government spending a reported $1 million dollars buying Olympic tickets:

“During question period in the legislature that afternoon, the NDP turned up the pressure on B.C.’s Liberal government to release the cost of the tickets, which included 1,000 luxury seats in box suites at BC Place, GM Place and the Pacific Coliseum for the duration of the Olympic Games in February.”

Seems the Legal Services Society is trying to find someone to foot their bill with the plea of: “Please Sir I want some more” echoing out on the street.

A CBS news article says that blueprints of Obama’s helicopter were found on a computer in Tehran. How did it get there?

Seems that a defense contractor legitimately had the documents. An employee saved it on her home PC. That home PC contained, like many do, file sharing software. But that employee did not realize that the file sharing software was configured to share the folder it was put in.

In other words, if anyone anywhere using that file sharing software/network did a search, they could find and download that document.

This danger is not new – but its a good reminder for law firms to be vigilant about where confidential and client documents are stored – even temporarily. Its not unusual for those within law firms to work from home occasionally.

All file sharing software should be set to either not share anything, or to share only files contained in specified folders that one purposely decides to share.

Last Wednesday, the The Office of the Privacy Commissioner of Canada, the Office of the Information and Privacy Commissioner for British Columbia and the Office of the Information and Privacy Commissioner of Alberta published two documents on privacy and management of the H1N1 pandemic. This post invites critical thought about the substance of these documents.

One document, for employers, is entitled Privacy in the Time of a Pandemic: Guidance for Organizations. The other, for employees, is entitled Privacy in the Time of a Pandemic: A Fact Sheet for Employees.

Both documents argue that private sector privacy laws “apply in the usual way” even though the World Health Organization has declared H1N1 to be a pandemic flu. They explain that in the event an emergency is declared under applicable emergency management legislation, public health officials may order employers to collect personal health information, and that private sector privacy legislation will not impede compliance with such orders.

Though we are not in a state of emergency, we are in the midst of a global influenza pandemic, and employers control access to the spaces at which a significant portion of the population regularly congregate. Never mind their statutory duty to “take every precaution reasonable in the circumstances for the protection of a worker,” don’t employers who are vigilant in ensuring their workplaces are free of H1N1 fulfill an important public health objective? Isn’t vigilance by employers today important to prevent a state of emergency tomorrow?

Take return-to-work screening, for example. Assume an employee is off sick and returns to the workplace after three days. In normal circumstances, an employer would have little reason to ask the employee about the condition that caused his or her sickness. This is the pre-emergency norm that is supported by the commissioners. Their employee fact sheet says:

If you become sick: We would generally discourage you from sharing your health status, including any diagnosis made by a physician, with your manager. Many employees will not be officially diagnosed by a physician, and will not themselves know if they have pandemic flu. In most cases, you need only say that you are sick and provide an approximate day for your return to work. However, given the ease of transmission of the pandemic flu, you may wish to volunteer information about your health status if you become ill, so that others in your workplace may be able to take additional precautions.

This statement reveals a good deal of ambivalence, but does suggest that employers should not screen for H1N1 in the “three-day off scenario” because such would not be “reasonably necessary” – the uniform standard for collection of personal information under privacy legislation.

Vigilant H1N1 management demands otherwise. The research on H1N1 contagiousness that has been accepted by the Public Health Agency of Canada indicates that people may remain contagious for approximately seven days after symptoms have started. In a time of pandemic, an employer faced with an early return from an undisclosed sickness should have the option of conducting an assessment to screen for H1N1.

The use of such workplace “screening tools” has been endorsed by the Ontario Ministry of Health and Long-term Care in its guide to developing a workplace health plan. The Ministry’s guide explains that screening involves the collection of personal information about symptoms and other information to support a medically valid assessment of infection/contagiousness. Of course, keeping the records (of due diligence) generated by such assessments secure is an unquestionable requirement. Ideally, assessments will be conducted by an occupational health nurse or physician.

While probing employees about the reasons for sickness is rarely “reasonably necessary” in ordinary times, employers who are responding to a pandemic can’t manage the risks associated with a specific contagious disease without asking employees questions about a specific contagious disease. I would hope the privacy commissioners were not suggesting that, short of an emergency, employers should be less than vigilant about keeping the workplace free from H1N1.

[This is my opinion alone and not the opinion of my employer or its clients.]

I am amazed that the three minutes extracted from an interview that I gave in the summer of 2009 with the thought that parts of it would be used in a tribute video to be shown at the 2009 AALL Convention has caused such a kerfuffle. [Ed. note: see Berring’s Scepticism on the Future of Free Legal Information, Berring, CanLII and Kobe Beef, Berring, free legal information, and making good choices] (Glad to see that someone used one of my favorite words). The context of the remarks matters because they were meant to be light in tone. My normal tone is glib, but this was informal even for me. Indeed, I had never seen the clip until it was posted on Legal Currents. That said, within limits I stand by what I said. One important caveat is that I was speaking only of the situation of legal information in the United States. Graham Greenleaf years ago showed me that Australia was far ahead of the U.S. in making its information freely available. As I have focused more on information heory in recent year, I have not followed the latest developments there, in Canada, or other jurisdiction for that matter. The education that I have received by reading the fascinating posts about the current state of affairs in Canada has impressed me. Ergo my remarks were not just glib, they were provincial.

Read in the context of the United States, I am willing to defend the substance of what I said. When I referred to those who are devoted to making the law freely available to everyone as heroes, I meant it. My remarks were not intended to be dismissive. They were informal, unscripted and glib, but not dismissive. But I do not think that the free systems will challenge the proprietary ones in the United States as the centers of legal research for lawyers in the foreseeable future. For years I have used the Tinkerbell analogy to stand for widely accepted cognitive authority. Certain research sources become accepted as reliable. Professional researchers trust them. The users do not question them cricially, they just rely on them. Think of Shepards Citators in the old days or the amalgam of official print reports of judicial opinions and the National Reporter System in print that ruled in the latter part of the 20th Century. When I graduated from law school no one questioned the accuracy or reliability of these tools. We just used them. They were Tinkerbells. Those print sources of authority are gone. This is not just true in law, but we feel its bite more keenly. As of this point in 2009, in my judgment, WESTLAW and LEXIS possess that form of authority. Those systems represent “reality” and authority to law students and young lawyers in the United States. For now the free systems have not replaced them for reliability or ease of use.

This fall we have 108 second and third year law students taking Advanced Legal Research at Berkeley Law School. On the first research assignment I asked them to use paper tools, WESTLAW, LEXIS and at least two freely available systems to examine a recent U.S. Supreme Court decision. The answers, in the form of 750 word essays, made for interesting reading. Many chose L.I.I., Findlaw or PLOL as the free version. Most saw the utility in the free systems, but all preferred WESTLAW or LEXIS when it really counted. (We have them try Loislaw and Bloomberg too, but not in this assignment). Someone has noted that I have the view of an information consumer, not an information producer. To that charge I plead guilty, I try to view it through the students eyes, or at least to inform the brains behind those eyes.

The day may come when the free systems will combine with sophisticated search engines and become that elusive “Tinkerbell” being granted status as an authority that is implicitly relied upon without question. But that day is not yet here. The free sites have value and I truly admire those who work to make them a reality. I could be wrong but I think that Finding the Law, the text that I co-author with Beth Edinger, was the first such book to discuss L.I.I. and, though Peter Martin and Thom Bruce have disagreed with me on many occasions, I think that they have been important players in the world of legal information over the last three decades. But is L.I.I. the first choice of most professional researchers?

Many questions remain. Are the proprietary systems too expensive? Will they weather the economic climate of these perilous times? Over a decade ago I wrote that both LEXIS and WESTLAW could not both survive into the 21st Century due to cost and redundancy, so it is pretty clear that I am no prophet, but I think major changes are on the way. I do not see the federal or state governments filling the role of Tinkerbell information sources in the United States for reasons I gloss in the video clip. Nor do I see the efforts to provide the information for free taking hold as the central source that is cited and relied upon by most lawyers. Will another player enter the fray? Bloomberg is trying to take on WESTLAW and LEXIS head-on. Systems like Lawnet and LoisLaw are trying to lure economy minded researchers. Will Microsoft or Google decide that the lucrative legal resarch market is worth taking on? A great deal is up in the air. We can disagree about where things are going, but in the end, only time will tell.

I was using Delicious for work and personal research. Then I read an article in Econtent magazine about iCyte and I just had to give it a try. Now, I’m hooked on it. If you do alot of online research, you have to try it. Why I love it:

• It lets you select and save text on a webpage. Instead of saving the entire page, iCyte allows you to save the most important parts of a webpage.
• Webpages are saved on the iCyte server, so you don’t lose them even if they’ve been changed or deleted.
• You have the option of inviting others to join your online research projects, or you can keep them private.

After three weeks rest and relaxation, I flew to Thunder Bay for two days of “outreach”, two days of what turned out to be a valuable glimpse into how residents of the northeast experience law. We’ll be following up with more specific consultations in our projects, but I ended up with pages of comments and questions that will become part of our analysis in our family law and vulnerable workers projects in particular. Comments that cut across the groups I met suggest a couple of possible new LCO projects.

I started on the Thursday morning with a meeting of representatives from some six or so different groups, a boardroom lent to us by the Legal Aid office there, and ended on Friday afternoon meeting representatives of three other groups in the same location. Also on Thursday, I had the chance to spend time with The Honourable Madam Justice Helen M. Pierce
Regional Senior Judge for the Northwest Region, workers at the Ontario Native Women’s Centre and legal aid administrators and staff lawyers (not only from Thunder Bay, but Sioux Lookout and Kenora). Friday morning provided an illuminating conversation with workers at the Kinna-Aweya Legal Clinic. I had the chance to spread the word about the LCO to lawyers attending the Thunder Bay Lawyers Association CLE as the lunchtime speaker.

A common thread through all these conversations is that the kind of legal supports we take for granted in the south (even if we think they are insufficient) may not even be available in the northwest region of the province. Needless to say, distances are a huge challenge. The demographics bring a new intensity to issues that are not unknown in the south, but are of widespread significance there.

I know that the people with whom I (and other LCO staff) meet do not meet us lightly. They have been fighting these battles in most cases for a long time; they have received promises of changes that don’t occur; they often do not have an opportunity to put their distinctive perspective forward to policy-makers. Spending time with us takes effort and money, but they are willing to put their faith in yet another effort at law reform. At the LCO we are grateful they do. Even so, the question, “how will this benefit us?”, is a hard one to answer. We can give no guarantees – our work is just the beginning of any reform that might happen. But we can say that our work cannot be as useful without hearing from them and that this kind of conversation is really a fundamental element of law reform work today.

There seems to be an increasing number of positions for librarians in the area of copyright and licensing.

IFLA (located in The Hague) is currently looking for a Copyright Policy Officer. The University of Michigan has an opening for the Head of Electronic Acquisitions and Licensing.  The Ontario Colleges Library Service has an opening for an Electronic Resources Librarian (in Toronto).

The blog www.copyrightanswers.blogspot.com now lists such positions — if you are interested, further info and links are in the blog. And if you know of other positions, please share them.

Google’s new music search, Discover Music, has launched — but not in Canada. Partnering with imeem, lala, iLike, Pandora and Rhapsody, all music providing sites, Google will now determine whether your search has a musical aspect and, if so, throw up a result box that lets you listen to an excerpt of the music and choose to purchase it, if that is possible. There’s a video on the site linked to above that illustrates this.

Because of copyright issues, none of the partner providers is able to supply music online in Canada, and, consequently, Google’s Discover Music simply doesn’t work here. It would seem that there is no licensing structure available that would let these services pay to provide music in this country.

Further marking Canada as a technological backwater is the news that a new online telephone service, Ribbit mobile, like Google Voice, with which it competes, is also unavailable here. Essentially, these services work to coordinate your various telephone numbers and provide voice mail transcription, along with other features. They provide the benefits, in effect, that local phone companies are unwilling to offer, either because they are inept or, more likely, greedy.

It’s trite to say, but a truism nonetheless that the inherent success or lack thereof of a law firm lies in its people. The way a firm manages human resources determines its ability to attract, retain and motivate the talent necessary to be the superior and profitable organisation it seeks to be.

I recently read Who, authored by Randy Street and Geoff Smart. Geoff Smart is the son of Brad Smart, who wrote the seminal book Topgrading on how to recruit, hire and keep the right people for the right job to get excellent results.

The authors state their central premise as: Get the right people and great things happen. Get the wrong people and management becomes one headache after another.

Hiring mistakes occur when managers haven’t taken the time to solidify what outcomes they are expecting for success in a particular position. Informal interviews are ineffective in determining a candidate’s competencies and fit for a particular role. Managers often forget to sell a candidate once an offer is made. Finally, recruiters can generally create a list of potential candidates for a position but often fail to collect enough balanced data, both positives and negatives, from interviews and references.

Lawyers, often juggling a multitude of client, marketing and management demands, are often guilty of rushing the interview process. The authors argue that if you fail to invest adequate time and resources to the process, you can easily end up making hiring mistakes 50% of the time. These mistakes are very expensive as the out-of-pocket costs of hiring, training and then losing associates are significant and as much as they have ever been.

The book sets out a four step recruiting process for hiring the best people for any job (the necessary things you have to do to pick the right “who”):

1. Create a Scorecard, which is a blueprint of what outcomes you want a person to deliver in a role, and the way you want those outcomes to be achieved.

2. Constantly be on the look out for good talent. Referrals and social networks are often a key source of good talent.

3. Select. There are four interviews needed to create a hiring success rate. The Topgrading Interview is the main event among the four interviews and is a chronological walk through a person’s career. From it, a person’s personal patterns clearly emerge.

4. Sell. Once you have found the right candidate, convince them to join you. The 5 Fs of selling are mentioned: Fit, Family, Fortune, Freedom and Fun.

After reading the book, we refined our hiring process at Heritage Law as follows:

1. Create a detailed job description (the “Scorecard”), including the mission for the position, outcomes that must be accomplished and competencies that fit with the role and the culture of the firm as a whole.

2. A detailed job ad is then created, using the information in the job description. Anyone responding should know exactly what the job requires and whether they are a reasonable fit.

3. Use personal networks and traditional routes to find prospective candidates.

4. Narrow down resumes. Email the narrowed down candidates our Lawyer or Staff Application Form and have them fill out and return it.

5. Screen remaining candidates by phone (20 minutes approx). The goal is to eliminate as many people who are inappropriate for the position as quickly as possible

6. Short Interview. Give the candidate information about the company and position; then ask
- What are your career goals?
- What are you really good at professionally?
- What are you not good at or not interested in doing professionally?
- Who were your last 5 bosses and how will they each rate your performance on a 1-10 scale when we talk to them?

7. Full Interview of last few candidates:
Ask the following questions for every full time job on resume:
- What were your expectations in taking the job?
- What were your responsibilities and accountabilities?
- What were your successes? (Follow-up — how did you achieve your successes?)
- What were your failures? (Follow-up — get specifics.)
- Who was your boss and what were his/her strengths and weaker points? (Does the pattern suggest you would work together?)
- What’s your best guess as to what your boss will tell me, if I ask you to arrange a call, were your strengths, weaker points, and overall performance? (The pattern of responses to this question will tell you volumes.)
- Why did you leave that job?

More time is spent following up on specifics of the more recent jobs. Then, candidates are asked to arrange reference checks with former employers. Finally, at least three reference checks are conducted for each finalist.

8. Select the candidate and sell them on the position.

I enclose a Scorecard created for a contract lawyer position with our firm. The hires we have made so far using this process have worked out well. As an added bonus, the process of creating Scorecards for all positions has been clarifying in terms of refining expectations and communicating the goals and expectations of the firm to existing staff.

Job Description: Contract Lawyer

Mission for Heritage Law

To help people protect their families, their assets and their legacies.

Mission for Heritage Law Contract Lawyer

To provide excellent service to clients. To create financial value personally and for the firm. To continually improve skills and knowledge. To continually market self and the firm.

Outcomes

Deliver top client service
- demonstrate professionalism and ethics in practice: honesty, integrity, competence, confidentiality, public service and respect for the rule of law, the courts, clients, other lawyers, witnesses and unrepresented parties;
- provide value through clearly communicating retainer terms at outset of any representation, aiming for efficiency in the delivery of excellent results and quickly resolving billing issues if they arise; and
- demonstrate superior responsiveness though quickly returning emails and phone calls (or have staff person do so if cannot), regular communication with clients on the progress of their matter and prompt delivery of legal work.

Commitment to Professional Development
- develop legal and practice skills through attending at least three CLE courses and 80 hours of self study a year;

Deliver financial value personally and to firm
- billing expectations are set out here

Market self and firm
- Help develop and execute on firm marketing plan for year, in consultation with other lawyers
- participate in at least four firm presentations a year
- post to firm blog at least twice a month
- attend and participate in at least two professional or community meetings a month (CBA subsections, collaborative law groups, Chamber meetings, North Shore Bar Assoc. etc.)

Competencies

Honesty/Integrity. Does not cut corners ethically. Earns trust and maintains confidences. Does what is right, not what is expedient. Speaks plainly and truthfully.

Traditional Intelligence. Learns quickly. Demonstrates ability to quickly and proficiently understand and absorb new information.

Emotional Intelligence. Empathy, perspective, understanding, listening skills.

Work ethic. Possesses strong willingness to work hard and sometimes long hours to get the job done. Has a track record of working hard.

Analytical ability. Can think logically on the basis of a set of rules and analyse situations using common sense.

Logical reasoning. Able to understand, analyse and evaluate arguments.

Sound Judgment. Capacity to assess situations or circumstances and draw sound conclusions

Advocacy/Persuasion. Able to convince others of a conclusion or to pursue a course of action.

Attention to Detail. Thorough in accomplishing a task with concern for all the areas involved, no matter how small. Does not let important details slip through the cracks or derail a file.

Communication skills. Speaks and writes clearly, in all modes of communication.

Autonomy. Able to work productively and keep motivated in less structured work environment.

Pro-activity. Acts without being told what to do. Brings new ideas to the firm.

Flexibility/adaptability. Adjusts quickly to challenging priorities and conditions. Copes effectively with complexity and change.

Calm under pressure. Maintains stable performance under pressure or stress.

Enthusiasm. Exhibits passion and excitement over work. Has can-do attitude.

High standards. Expects personal performance and team performance to be nothing less than the best.

Openness to criticism and ideas. Solicits feedback and reacts calmly to criticism or negative feedback.

Team Player. Reaches out to peers and cooperates with team to establish an overall collaborative working relationship.

Sales/Business Development skills. Comfortable generating new business for self and the firm and networking and building relationships with referral sources.

Multi-tasking. Can effectively juggle and prioritize competing demands.

Responsiveness. Responds constructively and expediently to client and staff communications and requests.

Efficiency. Able to produce work with minimal wasted effort.

Creativity/innovation. Generates new and innovative approaches to problems.

Technological Affinity. Comfortable with and can use current technologies.

My friend David Stratas alerted me to the new food available in the new UK Supreme Court. He comments; “How marvellously civilised!

Legal teams who come to the UK Supreme Court can order in catering for themselves!!! Here is the menu

Salad Items
Greek Salad
Mixed dressed salad leaves
Couscous and Mediterranean roasted vegetables
Roasted pepper and anchovies
Nicoise Salad
Puy Lentil with mint
Tricolore pasta with salami, feta cheese and olives
Main Items
Platter of Continental meat
Poached salmon and dill mayonnaise
Goat’s cheese and sundried tomato tart
Peppered beef and horseradish dressing
Medallion of chicken with citrus juice
Gammon ham and whole grain mustard
Dessert or Cheese
Lemon Citrus Tart
Chocolate brulee Or Selection of English and Continental cheese served with chutney and rustic bread.

Of course, the amazing thing, given the traditions of the English Bar, is that wine isn’t available.

We’ve come a long way from the days of Lord Eldon, when the Lives of the Chancellors reported:

Lord Eldon disliked French wines almost as much as French principles, and abjuring such thin potations as claret and champagne, he stuck to port, preferring a growth remarkably rough and strong, which he called ” Newcastle port.” Of this he drank very copiously ; but he can not be considered as intemperate, for his liquor never disturbed his understanding, or impaired his health, or interfered with the discharge of any of his duties. Among the Persians he would almost have received divine honors.

Lord Sidmouth related that he once talked to Lord Stowell, his father-in-law, about the practice of himself and the future Lord Chancellor, at an early period of their lives, dining together on the first day of term at one of the coffee-houses near the Temple:—”You drank some wine together, I dare say.” ” Yes.” ” Two bottles? ” ” More.” ” What! three bottles? ” ” More.” ” What! four bottles ? ” ” More,—do not ask any more questions.”

The only cause of regret was, that Lord Eldon’s young countrymen, not sufficiently appreciating the exceptional strength of his constitution, nor the difference between him and them, both corporeal and mental,—were apt to think that hard drinking, if it did not directly lead to the woolsack, was not inconsistent with the attainment of that eminence ; and I myself could name several promising students of the law whose prospects have been ruined by their recollecting how Lord Eldon drank port wine,— while they forgot how, at the same time, he read and re-read Coke upon Littleton.

The Legal Current, a blog published by Thomson Reuters, recently posted comments by Bob Berring on free legal information. Professor Berring expressed scepticism about the future of free tools for legal research, and described why in his view the structured and edited information in commercial tools makes them preferable for legal research.

Are commercial services necessarily more stable?

Daniel Poulin of LexUM has addressed Berring’s arguments in his recent post on SLAW, from the perspective of a publisher of free legal information. I echo his comment that commercial services are not necessarily more stable than government sources of legal information. Examples abound of collections suddenly disappearing from commercial services. In the Canadian context, the disappearance over time of the Maritime Law Book, Canada Law Book and Irwin Law collections from Quicklaw illustrates the shifting sands of legal publishing. An example in the US context is the removal of ALR Annotations from LexisNexis. Others will remember the temporary removal from LexisNexis of the ICLR Law Reports.

Statistics on free v. commercial from the US

Recent surveys show that most of the North American legal profession is using these free tools. The American Bar Association’s 2008 Legal Technology Survey Report showed for the first time that the number of lawyers performing free online legal research (89%) was greater than the number using commercial services (87%). The 2009 ABA survey reports that 91% are using free online resources, as compared to 88% using fee-based online resources. The 2008 survey also revealed an increase in private sector lawyers performing online legal research, from 79% in 2003 to 96% in 2008.

The 2009 ABA survey asked lawyers about their satisfaction level with free online services as compared to fee-based online services in the areas of user-friendliness, authoritativeness, advanced search options, searching multiple databases simultaneously, and depth of coverage. Not surprisingly, the commercial services ranked much higher. However, only 8.7% of respondents were very satisfied with the cost of the fee-based services.

All free services are not equal

Free legal research tools cannot be lumped into one homogeneous group. Government sites with poor search engines, limited content and no value-added features comprise only one segment of the free legal information world. In addition to the free services are the “low-cost” services, and Bar Association funded access to tools such as Fastcase. Each has a role to play in a cost-effective research strategy. For example, a large national US law firm has issued guidelines requiring the use of Loislaw before turning to Lexis and Westlaw.

Query whether the availability of these free and low-cost online tools has increased the number of lawyers going online to research the law. Many lawyers cannot afford commercial services, and many other lawyers don’t subscribe to commercial services because they don’t do much research. Others limit their use of commercial services because of the cost. Free resources can improve the standard of practice by increasing access to legal information.

CanLII’s place in the legal research world

CanLII is an example of the tremendous potential of free legal information. It is freely available to anyone, although it is funded by the Canadian legal professions in an annual levy of approximately $30 per member.

CanLII publishes cases and legislation from all Canadian jurisdictions, as well as several administrative tribunals. Value-added features on CanLII include an excellent search engine; ranking results by date, relevance or citation frequency; searching by keyword, name or citation; refinement by date, court level, jurisdiction or keyword; ability to customize which databases are searched; linking between documents; parallel citations; PDF versions of cases; case history and case citation reports; RSS feeds for new cases and legislative changes; weekly updates of legislative databases from government sites; side-by-side comparisons of legislative versions; and an automated linking tool.

A 2008 survey of Canadian lawyers ranked CanLII as the most frequently used electronic legal resource, and ranked it first for user-friendliness. 43% of lawyers using CanLII stated that they could accomplish 50% or more of their legal research using CanLII.

Making good choices

Lawyers using the free services recognize that their research needs to be augmented (and more preferably started) with commentary, and where necessary supplemented using commercial online tools. Even research using the commercial online tools generally needs to be supplemented with print commentary. All commercial services are not equal either, which often comes as a shock to users who assume that each “has everything”.

The free services are one tool of many for lawyers to use. In making good choices about which tools to use, the lawyer needs to consider comprehensiveness, accuracy, currency, quality of content, ease of use and cost. The more transparent that publishers of free and commercial tools are about the contents and currency of their collections, the easier it will be for lawyers to make good choices.

Word came down recently that the University of Montreal’s Centre de recherche en droit public won a six million dollar grant “to create a research infrastructure in which to develop different software solutions to the many problems currently plaguing the justice system.” You can read the CRDP announcement here. The Cyberjustice Laboratory project will comprise a research facility, a “virtual courtroom” and a “transportable courtroom” housed at McGill University. The project is headed by Professor Karim Benyekhlef, Director of the CRDP, and by Nicolas Vermeys, Associate Director of the project.

The chart below will give you some idea of where the project is headed:

There is a PDF concerning the project that is available here.

Osgoode Hall Law School has received funding for a similar project, and there is the Canadian Centre for Court Technology (headed by Slawyer Dominic Jaar). I hope that it will be possible for these groups, and other similar ventures, to collaborate with the Cyberjustice Project. We’re clearly at the stage where what is wanted is a national clearinghouse and coordinating body for law and technology.

CIPO announced a new Practice Direction on the test that the Patent Office will apply in assessing obviousness in light of Rothstein J.’s judgment for the Court in Apotex Inc. v. Sanofi-Synthelabo Canada, Inc. [2008 SCC 61]

The four-step approach to obviousness adopted by the Court is as follows:
(1) (a) Identify the notional “person skilled in the art”;
(b) Identify the relevant common general knowledge of that person;
(2) Identify the inventive concept of the claim in question or if that cannot readily be done, construe it;
(3) Identify what, if any, difference exists between the matter cited as forming part of the “state of the art” and the inventive concept of the claim or the claim as construed;
(4) Viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of invention?

Fortunately the Practice Direction will be applied prospectively.

Jotwell is an online law journal titled Jotwell (The Journal of Things We Like (Lots) which is the brainchild of Professor A. Michael Froomkin. Its aim is to help lawyers and legal academics figure out what to read, not only in their own area of specialization, but also outside it.

Jotwell will “identify, celebrate and discuss” the best new legal scholarship in a variety of fields, as selected by a distinguished board of legal editors. It is a rare attempt by legal scholars to praise—rather than criticize—others’ work. “We will not be afraid to be laudatory,” declares the Jotwell Mission Statement.

Because the site is licensed under Creative Commons, I hope it won’t mind if I stretch the limits of fair use / fair dealing to give you a flavour of what the enterprise is about.

As the website itself says:

Welcome to Jotwell: The Journal of Things We Like (Lots). Here you will find leading academics and practitioners providing short reviews of recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience.

Jotwell is a special type of law review housed on a set of inter-linked blogs. As a law review, Jotwell has only one mission: to bring to readers’ attention great recent scholarship related to the law. As a blog we invite your comments, and hope that some of our reviews will spark a conversation.

On the Jotwell main page you should expect new content once or twice a week, although as we add more sections contributions may become more frequent. Each of the subject-specific sections will have something new at least once a month. In any case, every time a new review appears in any of the subject-specific sections, an excerpt with a link to the full text will also appear here on our front page at http://jotwell.com.

We have an amazing team of superb contributors, whose names are listed in the sections:

• Administrative Law
• Constitutional Law
• Corporate Law
• Criminal Law
• Cyberlaw
• Intellectual Property Law
• Legal Profession
• Tax Law

On the Jotwell main page you should
expect new content once or twice a week, although as we add more

The Editors of each section have chosen a team of “Contributing Editors” who are known as leaders in their fields. Each of these editors will write at least one essay of 500-1000 words per year in which they identify and explain the significance of one or more significant recent works.

Current section editors include: ” Administrative Law (A. Michael Froomkin, Paul Verkuil) ” Constitutional Law (Patrick Gudridge) ” Corporate Law (Caroline Bradley, William Wilson Bratton) ” Criminal Law (Donna Coker, Jonathan Simon) ” Cyberlaw (A. Michael Froomkin, James Grimmelmann) ” Intellectual Property (Pam Samuelson, Christopher Sprigman) ” Legal Profession (John Flood, Tanina Rostain) ” Tax Law (Allison Christians, George Mundstock) .”

The Mission Statement is a refreshing break from traditional law school approaches:

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.

Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.

A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.

The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.

Jotwell will help fill that gap. We will not be afraid to be laudatory, nor will we give points for scoring them. Rather, we will challenge ourselves and our colleagues to share their wisdom and be generous with their praise. We will be positive without apology.

There are three ways to read Jotwell.

1. You can visit this page, the main Jotwell site, which aggregates all the sections; or you can sample just the sections you like, choosing from the list in the right column.
2. If you use a newsreader, you can sign up for the RSS feed for the main Jotwell section, or select among the feeds for the subject sections by choosing the link to the RSS feed found in each section.
3. Or, if you prefer to get your updates by e-mail, you can click here to request a message every time we have new article, or click on the email link found in every subject section for a more tailored, and less frequent, reminder.

Please send your comments and suggestions, and do feel free to comment on the articles as well. We hope you will make Jotwell part of your regular reading and that you will find things you like (lots).

Another welcome diversion from the stressors of our daily legal lives.

Head over to Precedent Magazine to read my most recent travel column. Destination: Costa Rica.

Today and tomorrow, Toronto Innovation Showcase is bringing together City of Toronto staff, City leaders, and various groups of citizens  to discuss the Open Government movement and what it should mean to the City. The question being asked is:

“How can we strengthen our democracy and promote efficiency and effectiveness by making government more transparent, participatory, and collaborative?”

Part of the Showcase will be the Open Data Lab, taking place this afternoon 1:00 – 4:15 p.m. ET. This will be a unique opportunity for citizens to engage with City government. Today’s Open Data Lab will be led by consultant and facilitator Mark Kuznicki, one of the leaders in Canada’s Open Government movement and an instigator of the ChangeCamp concept, giving citizens the tools to come together and work on their local government-related projects.

In leading up to today’s meeting, I emailed Mark a few questions on behalf of the Slaw audience:

Crosby: Briefly, what is the open government movement?

Kuznicki: The open government movement means different things to different people. The thing they have in common is that they believe that making government data open and free can make government more effective and accountable, a more engaged citizenry and create seeds of innovation in the public, social and private sectors.

Crosby: What is the Toronto Open Data Lab? What are you hoping to achieve with it?

Kuznicki: In the Open Data Lab, we have an opportunity to get City staff and management together with web entrepreneurs, social policy researchers, designers and developers from the community to imagine what is possible with open data. It is the first such opportunity with the City of Toronto and we hope to see some innovative projects spawned today.

Crosby: You are a leader in the ChangeCamp community. Is it connected with the Open Data Lab?

Kuznicki: The ChangeCamp community is closely connected to this open data project. It was at ChangeCamp Toronto in January 2009 that Ryan Merkley, Senior Advisor to Mayor Miller, asked community members what their open data wishlist looked like. Conversations like those can quickly effect change, as we have seen today resulting in the launch of Toronto.ca/Open. ChangeCamp is a community where having those kinds of conversations is made more likely.

The Toronto Innovation Showcase is currently being livestreamed via the Internet today and tomorrow. You can also follow the Twitter posts (tweets) from those participating using tags #TOshowcase and #opendataTO. Mayor David Miller has just officially opened the Toronto.ca/Open website for open Toronto data.

This past week was fantastic for Toronto biotech.  We hosted the 50th Anniversary of the Gairdner Awards, the OGI-IDT Synthetic Biology Symposium and the Canada’s first Science Policy Conference.  These events provided the opportunity to hear some big names do some big thinking… and the opportunity to reduce all those big thoughts to 140-character tweets @crossborderbio.  Here are a few items from the Cross-Border Biotech Blog that got in on the fun as well:

• Bruce Alberts, the Editor-in-Chief of the journal Science, served for 12 years as the head of the U.S. National Academy for Science, an independent voice for science in policy decision-making.  Dr. Alberts is actually in favour of a voice for science in everything, and he advocates for placing scientists into every career and country. He strongly recommends a National Academies-type science fellowship program for Canada.
• David Baltimore, Phillip Sharp and Corey Goodman have three Gairdner awards and two Nobel  prizes among them in addition to truly impressive corporate expertise.  They had a wide-ranging discussion about the biotech business model and pharma pipelines, and Corey Goodman suggested later that Canada needs to repatriate its expats gained VCs entrepreneurship experience in the U.S.

Also notable this week: the Cross-Border Biotech Blog’s science writer, Richard Chan, was thinking big in the Friday Science Review.  It has all the usual coverage of cool Canadian publications, plus Richard has branched out into science reporting, noting a Canada-California research collaboration and an international ranking of the best places to work in academia that includes Dalhousie and the University of Toronto.

At the end of September, four members of the Ontario Government Libraries Council (OGLC) presented a workshop at Showcase Ontario, the Ontario government’s enormous technology and information conference. The session was about how to use non-traditional media such as blogs and Twitter for current awareness, and included two practical case studies from the Office of the Fire Marshal and the Legislative Assembly of Ontario. Registrations for the session topped 400. Since then, various members of the panel have been asked to make presentations to other audiences, to contribute content to articles reporting on social media use in government, and one has become a video clip!

This experience illustrates a significant opportunity for librarians to take their experience as trainers and to become public speakers. Librarians are regularly called upon to provide training in how to use tools, but this presentation was different. Its key message was not a step-by-step instruction on how to use the tools being discussed (although some processes were demonstrated). Rather, the speakers emphasized the need for government organizations to be aware of RSS, Twitter, Facebook and like tools as sources of information and citizen engagement. This is a more strategic message than we may typically give, and a great example of librarians positioning themselves to become business advisors rather than “just” service providers.

On the other side of the coin, more library cutbacks are happening in federal government libraries. CISTI, the science library at the National Research Council, was subjected to a 70% cutback earlier this year. The International Development Information Centre (CIDA’s Library) announced that it is closing in March 2010, and the Health Canada libraries will be undergoing a significant staff cut, outsourcing its document delivery and technical services to CISTI. Traditional library services are in trouble – again.

As David Whelan pointed out in his guest column last month (thank you David), if librarians don’t figure out how they can meet the actual needs of their organizations (rather than the ones we have traditionally and recently less relevantly filled), we’re going to join those librarians who have been declared redundant. It looks like the IDIC is going to be redeploying its librarians into its Knowledge Management program. Was this at the suggestion of the librarians? If so, they should be commended for finding an opportunity and seizing it.

In the fall of 2008, Seth Godin presented a talk at Tools of Change, a conference on the future of publishing. He proposed that books are really souvenirs of ideas that people encounter in their daily living. If you need information quickly, he suggests, it’s less and less likely that you’ll go to a conventional print publication to get it. We’ve come to rely on the web to provide us with the quick answer. Once enough of those quick answers come together, someone may decide to publish an actual book, but it’s retrospective. A souvenir of the thinking or issues of that point in time – life has already moved past it. Librarians: Are we collecting souvenirs, or helping our organizations identify and learn from the data and information that they need to answer business needs right now? Are we speaking out on how our organizations can manage internally generated information, minimize risk by managing e-mail? Are we finding new ways to market our well-established skills?

We are well-placed to reinvent ourselves. All we need is courage.

I saw the last installment from the West series showcasing Bob Berring. Bob Berring is no stranger in this field. He significantly contributed to the law librarianship over a quite long career.  His decade long professional connections with West Publishing are also well known. All this said, this short video constitutes nice blog stuff. Simon’s reference to it is an irresistible invitation to prepare a first posting on Slaw. I intend to seriously contest the premature obitary for the free access to law initiative. Here are some of my points.

The market and the production of social goods

Berring’s first argument towards the support of big legal publishers sounds like this: the Wexis’ way is preferable because “market dynamics entails corporate responsible attitudes while government endeavors are notoriously flimsy” (my words).  Well. This is not exactly what I am seeing on TV these days.

But what is the point? Legal publishers try hard to make profits, so they know better how to make the law accessible?  Let’s try to figure that out.

As it happens, I’m also a believer in the market system. To me, the system of markets means that all of us can try to make it.  You can try to do better and if you get it right, you will be successful.  The market system has many more specific consequences for the legal information system. It means that West and Lexis clientele will eventually try to break free if there are cheaper and better troves of legal information elsewhere.  In a market system, an unknown initiative may be made king tomorrow while today successes can slip into oblivion.  Finally, markets are crazy enough so that individual corporations, like West or Lexis, may decide to drop a product or a service anytime and there will be nothing to prevent it. That’s the market and that’s why we have governments.

Berring says that governments cannot be trusted with legal information, for they just don’t have the incentives. While it is true that governments do not have a fundamental role in providing the tools needed by lawyers, one must realize that governments are much more reliable than corporations to protect the long term interests of society. If something must be preserved or done forever it must be made a responsibility of the state. Governments are the only ones able to take on such mandates.  The Canada Gazette started publication in 1841, Quebec’s one in 1869, and both are being published uninterruptedly eversince. To sum up, contrasting global corporations “reliability” with governments commitments’ flimsiness is bizarre.

The volunteers’ efforts

Berring’s statements that “volunteer’s effort” to make the law accessible for free even though admirable could not last long epitomize big publishers strategy towards disruptive inovation .

Let’s skip rapidly the lecturing about the requisite structure, the needs for finding tools and the importance of reliability for legal material. All those things are understood by all significant players in Canada and certainly by CanLII’s makers. This is not kids’ stuff; you are in the legal publishing business or you are not. And those who are in the field, be it at Cornell or LexUM (in the case of CanLII), have had no other choices than to learn rapidly to be reliable and relevant or to get out of there. Actually, this is another nice market effect: if you are incompetent and going from mistakes to blunders, you don’t last.

The fact is that “free access to law” promoters are serious about publishing. The systems we build are much more exposed to scrutiny. Anybody can leisurely look at our tools without incurring usage costs. Such a constant public scrutiny induces a lot of caution and this is a good thing. Beyond avoiding errors, the “free access to law” publishers are innovative.  LexUM started publishing for free on the Internet the SCC judgments in 1993. Later on, CanLII introduced among other innovations easy multi-databases search, support for images in judgments, systematic use of RSS and, more recently, comparison of statute versions.

Are CanLII and the likes, AustLII, Cornell, BaiLII, viable? Berring thinks they are not, but this leads to my last point.

Berring’s consumer view of legal information

Berring indulges in pleasant recollections … his first visit at the West Corporation in the seventies and what he saw then. The man’s eye is still sparkling at the evocation of discoveries then made. He was meeting with the actual people producing the tools used by librarians and lawyers.

It is then that I identified what was troubling me with this whole commentary. I suddenly understood why the respected law librarian was telling us not to bother to try to do better than West and Lexis.  The guy was looking at legal information tools not as a producer but from the outside, as a consumer. That difference of point of view matters.

Despite their proximity, law librarianship and legal publishing are very different disciplines. Legal publishers do not use other people tools to help lawyers, they design them, and they build them. This is especially true for the LIIs (CanLII and all the others). Being small and young organization, they have to create new tools. Legal publishers have huge concerns about the cost of production versus the value of product. Librarians do not. Let’s illustrate that.

The CanLII citator, Reflex, has been built very efficiently. It permits CanLII to integrate all its content with hyperlinks. Reflex is not perfect, but nothing could have produced more benefits at that price point. Citators offered by commercial publishers are more complete and much more sophisticated; they include information about subsequent judicial treatment of cases. In such a context, any consumer could say that Quickcite is better than Reflex. Law librarians will do, and they will be right on that. However, what if Reflex is providing one hundred times more benefits by dollar invested than comparable products? To the consumers this may be irrelevant, but for those who want to understand what will be the legal publishing future, this is an important piece of information.

Let’s talk now about the viability or the sustainability of the likes of CanLII. We must firstly recognize that we frequently mix viability and size. Big corporations seem eternal, smaller ones likely to come and go. But real life shows us a different story. When I moved to Montreal in the seventies, I was doing my groceries at Steinberg’s and my shopping at Eaton.  I miss both of them today.

CanLII is a very small operation, but it can as viable as anything around in legal publishing. With a handful of people, CanLII updates weekly statutes and regulations databases for all jurisdictions in Canada. Also weekly, it publishes around three thousand judgments. For the rest, the team works on preparing innovations on the future versions of CanLII. CanLII is lean and cheap. As a consequence, in hard times, it could be the only thing a lawyer can pay for. In better times, CanLII’s very low operating costs make it an even bigger bargain. You never know the future, but that beast is designed to be resilient.

In many situations observing from the outside could be an advantage. One could benefit from the distance. However, sometimes being limited to measuring outputs obscures things, especially when trying to appreciate sustainability.

Kobe beef is clearly superior to the more ordinary meat that enters my house. It cannot be concluded that we will all end up eating Kobe hamburgers and that there is no future for any other beef production. For, as tasteful this delicacy is, growing Kobe beef is hell: the steers drink large quantity of beer and they demand their daily sake massage.  This may look like fun farming, but it makes the output too costly for most of us.

To conclude, here is my illustrative video: Kobe Beef Production – An insider point of view

Daniel.

Just like Google’s Street View feature, which followed a Canadian launch after being tested in the American market, Google introduced this month traffic levels for major Canadian cities after almost three years of use in the U.S.  In the past week the service was extended from mobile devices to web browsing as well.

Toronto.com has offered much more limited traffic features for several years, but nothing even close to the level of detail or interactivity provided by Google.

Late this summer Google had expanded the service to include arterial roads, which was a major complaint among American users.  They also rolled-out a crowdsourcing feature that would track the speed of vehicles using Google Maps on mobile devices to help determine best alternative routes during congestion times.

One bulletin-board user asks,

If I am walking down the street with Google Maps open on my BB, I wonder if this skews the data?

The response he gets from another user appears at first quite simple,

They average out the data… so unless you have a marathon of people all having google maps on for some reason, one or two people walking down a major street most likely won’t affect the traffic readings.

That assumes, like financial markets often do, that people always behave rationally.  People do not always behave in rational ways.

Interruption of Question Period this week to raise the issue of climate change is just one of a growing phenomenon of flash mobs that could easily affect crowdsourcing data in the aggregate.  Just look at the many flash mobs in tribute to Michael Jackson alone in past months.

Google also launched a mobile service providing GPS with features like 3D views, turn-by-turn voice guidance and automatic rerouting.  The last feature would be especially useful in light of traffic conditions, and alternate destinations can be plotted by voice to comply with hands-free legislation in Ontario and similar laws in Saskatchewan, Alberta, and B.C. Users can also search by voice for services and landmarks along the way.  Devices will be able to use the service in the U.S. starting Nov. 6.

In one of those more common moments of more predictable behaviour, the shares for GPS navigation systems fell by 9.5% for Tom Tom and 18% for Garmin on Tuesday alone, dropping further during the rest of the week.   Still, many analysts point out that the mobile services available from Google aren’t comparable to GSP systems.  Signals often cut out, and don’t reliably provide directions when they are needed.  But Google can address this by caching information on devices instead of streaming, and in the long-term this will likely replace the GPS systems entirely.

Given the association between car accidents and traffic jams, litigators may be able to replace their police radio scanners with Google Maps and arrive on the scene before first-responders to offer their services.

They can find alternative routes to the scene through hands-free instruction and use Street View to get an idea of the physical layout before they arrive.  They can even do it walking down the street if the traffic is really backed up.  And barring a re-enactment of “Beat It!” en route to the accident, it doesn’t seem like anything can stop them.

Defence counsel, be forewarned.

How young has a major contributor to the law been? I’d argue the case of a brilliant 21 year old Dutch student.

Over at the Yale Law Library Blog, a great exhibition on the four hundredth anniversary of the publication of Hugo Grotius‘ Mare Liberum, (”On the Freedom of the Seas“) – or Huig de Groot if you dislike Latinization. Originally published as a pamphlet, it produced the first effective argument for the freedom of the seas and, with Grotius’s more mature work, De jure belli ac pacis (1625), lent substance and prestige to the idea of an international law in the service of the common good. Grotius touched off a “Battle of the Books”, with England’s leading legal scholar, John Selden, the author of Mare clausum.

What eventually emerged was a regime of international law to govern humanity’s common interest in shared resources. In principle, Roman Law had already established that navigation on the high seas was open to all. But in practice the principle was frequently disregarded – even by Rome itself, when its naval power was at its height, and by others after its decline. With the growth of maritime commerce, especially in the later Middle Ages, maritime powers asserted dominion over wide areas of ocean space.

The controversy between Grotius and Selden on the liberty of the sea is known to every law student. As Mike Widener summarizes it, “Selden conceded the innocence of harmless navigation and commerce, but maintained that restrictions on them do not necessarily violate the law of nature and the law of nations. He purported to show that the open sea is not everywhere common, is capable of appropriation, and in fact from time to time had been appropriated and occupied. As to the Spanish and Portuguese claims, whose legitimacy England continued to deny, Selden said that, while on general principles they could be valid, in actual practice neither of the two countries ever acquired valid title or command to the areas they claimed”.

The story of how the Dutch East India Company turned to a 21 year old scholar is a fascinating one. As Edward Gordon narrates:

A small fleet belonging to the Dutch East India Company attacked and overwhelmed a richly laden Portuguese vessel, the Santa Catarina, near Singapore. The captured vessel and cargo were brought back to the Netherlands, where a Dutch court ordered the proceeds of its sale distributed to the Company, the admiral of the fleet and his crew. A furious row erupted over the legality of the seizure, which struck many as immoral – in fact, scarcely distinguishable from outright piracy.

The case presented complex legal issues. The need to defend its right to participate in the East India trade had arisen in the course of the young Dutch republic’s war of independence against Spain, which by then held dominion over Portugal and regarded the Dutch as no more than rebellious subjects. Moreover, as some of the Company’s dissident shareholders themselves pointed out, the Company had been organized as a private mercantile enterprise, not as a vehicle for engaging in an aggressive war, much less for enriching itself in the process.

Some of the shareholders threatened to withdraw their capital, to form a new enterprise in competition, even to make common cause with a French company projected by Henry IV. The Company’s very existence was thought to be at risk – and with it the future of the young republic’s burgeoning overseas commerce.

To win over popular support, the Company turned to Hugo Grotius (1583-1645), then only twenty-one years old and too new to the practice of law to have been hired to handle the Santa Catarina litigation itself, but already renown throughout Europe for his prodigious erudition, his knowledge of the wisdom and practices of nations from biblical and classical times. Henry IV himself had greeted Grotius’s arrival in France as a fifteen-year-old diplomatic attaché by having a medal struck in his honor, declaring the young man to be nothing less than “the miracle of Holland.” In effect, Grotius’s defense of the Company’s position was tantamount to a celebrity endorsement, as valuable to the Company in this respect as by the persuasiveness of whatever legal argument he could muster in support of its actions.

Grotius immediately set about preparing a treatise that would portray the Company’s action in the context of a comprehensive theory of the law of prize. But before he could finish it, it had already been overtaken by events. The dissident shareholders had made good on their threat, to the extent of withdrawing their capital, but had failed to organize another company or to persuade the French to do so. Just as important, the Company’s commercial success had precipitated a change in public sentiment, effectively silencing critics of its aggressiveness. Moreover, and perhaps even more critically, an end was in sight to Holland’s decades-old war of independence from Spain. The moment, perforce, was inauspicious for a verbal assault on Spain and Portugal’s claims to a global monopoly.”

Not bad for a twenty-one year old.

The first edition of Selden’s Mare clausum is also famous as the first use of Arabic type in England.

Or even والشبكة العالمية

The language of tomorrow’s web won’t be English – nor will the script.

ICANN’s website has a video that explains the system of Internationalised Domain Names.

The Press Release states:

Seoul: The first Internet addresses containing non-Latin characters from start to finish will soon be online thanks to today’s approval of the new Internationalized Domain Name Fast Track Process by the Internet Corporation for Assigned Names and Numbers board.

“The coming introduction of non-Latin characters represents the biggest technical change to the Internet since it was created four decades ago,” said ICANN chairman Peter Dengate Thrush. “Right now Internet address endings are limited to Latin characters – A to Z. But the Fast Track Process is the first step in bringing the 100,000 characters of the languages of the world online for domain names.”

ICANN’s Fast Track Process launches on 16 November 2009. It will allow nations and territories to apply for Internet extensions reflecting their name – and made up of characters from their national language. If the applications meet criteria that includes government and community support and a stability evaluation, the applicants will be approved to start accepting registrations. ICANN will consider applications from countries for new top level domains, or Internet extensions, based on each nation’s character set.

Initially, the change will apply only to local country codes, such as .kr for Korea and .ru for Russia. Major top level domains (TLDs) such as .com, .net., and .org won’t see non-Latin editions just yet. But ICANN is pushing to make progress on these major TLDs and hopes to include them in the IDN system before long.

” This is only the first step, but it is an incredibly big one and an historic move toward the internationalization of the Internet ,” said Rod Beckstrom, ICANN’s President and CEO. “The first countries that participate will not only be providing valuable information of the operation of IDNs in the domain name system, they are also going to help to bring the first of billions more people online – people who never use Roman characters in their daily lives.”

Here it is on Youtube: some wonderful metaphors.

Will the Slaw community do a rebuttal?

Have you any idea how hard it is to find a Jack O Lantern carved in the image of a lawyer? I’ll tell you how hard: impossible. That’s how hard. You’d think “lawyer” would be perfect, right? Scary for most people… often seen wearing long black garments… heard to spout strange rituals in a strange language… But no.

It’s just part of the trials of working in a profession that deals in abstracts: there’s a paucity of images to symbolize us, hence the proliferation of those silly little wooden hammers that only belong in the U.S. and those silly big wooly wigs that only belong in the U.K (and then not so much anymore). Scales, either in the hands of a woman or not: that’s it, really. So it’s words words words for us. All caption, no picture, makes Jack a dull lantern.

But once you let go of a connection to the law, carving a jack o lantern turns into a whole lot of fun. Imaginations run riot and surprising skill is revealed (by candlelight). There’s no better place to see this than on Flickr, which gives us over 60,000 results for “jack o lantern.” Let me suggest that at some point you direct the family computer to that site, click the “slideshow” link, and simply marvel at the parade of spookyheads.

Then, inspired, you might let Google offer you 5,000-plus videos on “pumpkin carving.” There’s sure to be something here to test your mettle — and the sharpness of your knife.

Well I’m back and after my long absence one of the first things I learned upon my return was that the print version of the Table of Public Statutes and Responsible Ministers has been canceled. I had intended to compose a post going to great verbose lengths to illustrate the short sightedness of this move; but given the season, I’ve given my lament a Halloween twist and present it here, with all due apologies to Edgar Allan Poe:

Once upon an afternoon dreary, while I pondered weak and weary,
Over many a quaint and curious volume of legal lore,
While I nodded, nearly napping, suddenly there came a tapping,
As of some one gently rapping, rapping at my office door.
`’Tis some visitor,’ I muttered, `tapping at my office door -
Only this, and nothing more.’

Ah, distinctly I remember it was in the bleak October,
And each separate dying ember wrought its ghost upon the floor.
Eagerly I wished the morrow; – vainly I had sought to borrow
From my books surcease of sorrow – sorrow for the lost print source -
For the rare and radiant index whom the angels named Table of Public Statutes and Responsible Ministers -
Nameless here for evermore.

And the silken sad uncertain rustling of each purple curtain
Thrilled me – filled me with fantastic terrors never felt before;
So that now, to still the beating of my heart, I stood repeating
`’Tis some visitor entreating entrance at my office door -
Some late visitor entreating entrance at my office door; -
This it is, and nothing more,’

Presently my soul grew stronger; hesitating then no longer,
`Sir,’ said I, `or Madam, truly your forgiveness I implore;
But the fact is I was napping, and so gently you came rapping,
And so faintly you came tapping, tapping at my office door,
That I scarce was sure I heard you’ – here I opened wide the door; -
Darkness there, and nothing more.

Deep into that darkness peering, long I stood there wondering, fearing,
Doubting, dreaming dreams no mortal ever dared to dream before
But the silence was unbroken, and the darkness gave no token,
And the only word there spoken was the whispered words, `print source!’
This I whispered, and an echo murmured back the words, `print source!’
Merely this and nothing more.

Back into the chamber turning, all my soul within me burning,
Soon again I heard a tapping somewhat louder than before.
`Surely,’ said I, `surely that is something at my window lattice;
Let me see then, what thereat is, and this mystery explore -
Let my heart be still a moment and this mystery explore; -
‘Tis the wind and nothing more!’

Open here I flung the shutter, when, with many a flirt and flutter,
In there stepped a stately raven of the saintly days of yore.
Not the least obeisance made he; not a minute stopped or stayed he;
But, with mien of lord or lady, perched above my office door -
Perched upon a bust of Bora just above my office door -
Perched, and sat, and nothing more.

Then this ebony bird beguiling my sad fancy into smiling,
By the grave and stern decorum of the countenance it wore,
`Though thy crest be shorn and shaven, thou,’ I said, `art sure no craven.
Ghastly grim and ancient raven wandering from the nightly shore -
Tell me what thy lordly name is on the Night’s Plutonian shore!’
Quoth the raven, `Nevermore.’

Much I marvelled this ungainly fowl to hear discourse so plainly,
Though its answer little meaning – little relevancy bore;
For we cannot help agreeing that no living human being
Ever yet was blessed with seeing bird above his office door -
Bird or beast above the sculptured bust above his office door,
With such name as `Nevermore.’

But the raven, sitting lonely on the placid bust, spoke only,
That one word, as if his soul in that one word he did outpour.
Nothing further then he uttered – not a feather then he fluttered -
Till I scarcely more than muttered `Other friends have flown before -
On the morrow he will leave me, as my hopes have flown before.’
Then the bird said, `Nevermore.’

Startled at the stillness broken by reply so aptly spoken,
`Doubtless,’ said I, `what it utters is its only stock and store,
Caught from some unhappy master whom unmerciful disaster
Followed fast and followed faster till his songs one burden bore -
Till the dirges of his hope that melancholy burden bore
Of “Never-nevermore.”‘

But the raven still beguiling all my sad soul into smiling,
Straight I wheeled a cushioned seat in front of bird and bust and door;
Then, upon the velvet sinking, I betook myself to linking
Fancy unto fancy, thinking what this ominous bird of yore -
What this grim, ungainly, ghastly, gaunt, and ominous bird of yore
Meant in croaking `Nevermore.’

This I sat engaged in guessing, but no syllable expressing
To the fowl whose fiery eyes now burned into my bosom’s core;
This and more I sat divining, with my head at ease reclining
On the cushion’s velvet lining that the lamp-light gloated o’er,
But whose velvet violet lining with the lamp-light gloating o’er,
it shall press, ah, nevermore!

Then, methought, the air grew denser, perfumed from an unseen censer
Swung by Seraphim whose foot-falls tinkled on the tufted floor.
`Wretch,’ I cried, `thy God hath lent thee – by these angels he has sent thee
Respite – respite and nepenthe from thy memories of the print source!
Quaff, oh quaff this kind nepenthe, and forget this lost print source!’
Quoth the raven, `Nevermore.’

`Prophet!’ said I, `thing of evil! – prophet still, if bird or devil! -
Whether tempter sent, or whether tempest tossed thee here ashore,
Desolate yet all undaunted, on this desert land enchanted -
On this home by horror haunted – tell me truly, I implore -
Is there – is there balm in Ottawa? – tell me – tell me, I implore!’
Quoth the raven, `Nevermore.’

`Prophet!’ said I, `thing of evil! – prophet still, if bird or devil!
By that Heaven that bends above us – by that God we both adore -
Tell this soul with sorrow laden if, within the distant Aidenn,
It shall clasp a sainted index whom the angels named print source -
Clasp a rare and radiant index, whom the angels named print source?’
Quoth the raven, `Nevermore.’

`Be that word our sign of parting, bird or fiend!’ I shrieked upstarting -
`Get thee back into the tempest and the Night’s Plutonian shore!
Leave no black plume as a token of that lie thy soul hath spoken!
Leave my loneliness unbroken! – quit the bust above my door!
Take thy beak from out my heart, and take thy form from off my door!’
Quoth the raven, `Nevermore.’

And the raven, never flitting, still is sitting, still is sitting
On the pallid bust of Bora just above my office door;
And his eyes have all the seeming of a demon’s that is dreaming,
And the lamp-light o’er him streaming throws his shadow on the floor;
And my soul from out that shadow that lies floating on the floor
Shall be lifted – nevermore!