Random Outtakes and Unfinished Business for 2010

January 1, 2010 doesn't seem that long ago, does it?

But four hundred and forty (440) Wise Law Blog posts later, we'll be heading into our winter break tomorrow, Friday, December 24, 2010, at noon or so. Our office will be closed until January 4, 2010, and our blogging will likely be sporadic over the holidays.

I've had a number of random thoughts over the months gone by that I never got around to writing about. They are fitting for a near year-end wrap up, I think, so let me just put them out there.

Consider them my 2010 outtakes. This post is the box set.

• Mandatory Mediation and the Shrinking Trial Bar - I'm squarely in the camp that believes mandatory mediation in Ontario civil cases has been a great gift to the public and the legal profession. Given the high rate of settlement through mediation, however, and the very low percentage of cases that make it to trial these days, it appears to me that the Ontario litigation bar might ultimately have to evolve into two discrete specialties - dispute resolution and trial advocacy. While most litigators are now well able to switch hats as required, it is a reality that the skills utilized in these two critical processes are not readily interchangeable and fewer and fewer litigation lawyers of the future will have the opportunity to develop their trial chops through actual experience in the courtroom. The increasing use of summary judgment motions to achieve final disposition of cases under Ontario's new rules will only compound this problem. How will legal educators and regulators respond?

• Small Claims Courts aren't So Small Anymore - One year into Ontario's new, $25,000.00 Small Claims Court limit, I am more than a little impressed with the speed at which cases are being processed, in the Toronto Small Claims Court system, at least. While we probably won't have statistics for a while on the actual caseload increase this branch of the courts has experienced, so far, the system seems to have held up well, and there's no sign it has buckled at all under the pressure. Settlement Conferences are typically scheduled within three months or so following the filing of a Defence. Trial dates are set within a similar time frame thereafter, with a full turnaround to trial happening within six months or so. That's a fairly remarkable record, and a great success for the Attorney General's office. A pet peeve, however, is that lawyers' offices are not consulted by the court before it schedules appearance dates. This leads to schedule conflicts, too many adjournments due to counsel's unavailability, and inefficiencies in the system that could easily be avoided.

• My Twitter Tiff with Simon Fodden - Simon got a bit peeved at me a few months back for tweeting too much. I'm not sure if he stopped following me, but he certainly made it clear my multiple Twitter posts were bogging down his feed. Since then, I've tried to do my mass-volume tweets (many of which find their way into our daily 140Law reports) during off-hours, so people's feeds don't get too overwhelmed. Having said that, our Twitter follows have quadrupled since we started doing these posts, so hopefully the benefits outweigh any inconvenience for most. Professor Fodden and I did get over it, by the way, and as readers will know, he is one of my CLawBie nominees this year.

• Employment Law Reform - Wouldn't most Ontario wrongful dismissal litigation be eliminated if the province's Employment Standard Act was amended to provide for mandatory, minimum severance payments of (for discussion purposes) three weeks per year of service upon termination without cause, unless the parties have agreed to a higher amount, with further common law claims limited to cases where the duration of employment exceeds five years or other aggravating factors (such as inducement, bad faith, harassment, discrimination or misrepresentation) can be demonstrated? What is the public policy justification for a statutory regime that establishes minimum severance standards that are so much lower than the compensation inevitably granted by the courts?

• Family Law Reform - In a modern world where both parents are typically employed full-time and more often than not, they have jointly parented their children before a separation, the time has clearly arrived in Canada for a presumption that joint custody is in the best interests of children upon separation, unless a court can be convinced otherwise. Just as the introduction of the Child Support Guidelines eliminated a huge proportion of the nation's litigation over quantum of child support, a rebuttable presumption of joint custody could take most custody squabbles of the table. It would further enshrine a legally-mandated culture of cooperative parenting after separation and eliminate the invitation to conflict now presented by current legislation that offers little guidance beyond a "best interests" test that is subjectively so pliable that it brings out the worst in just about everyone caught up in a high conflict separation. With judges now openly mocking the behaviour of custody litigation's worst offenders, perhaps the solution lies in addressing our anachronistic family law legislation. Too often, it invites adversity, rather than cooperation, within families in crisis.

• The New Ontario Rules of Civil Procedure - Just a question: How does more needless paperwork and a maze of extra administrative steps at nearly every juncture of a lawsuit create improved access to justice?

• Technology in the Courtrooms - ...and in particular, mandatory videoconferencing for nearly all motions, set-date hearings, (and hearings to determine the date of set-date hearings) may be 80% of the solution to most of our access to justice problems. One of the reasons litigation is so expensive is that the public pays for so much lawyer waiting time. Lawyers are often required to linger in court for several hours, waiting for short procedural hearings to be reached on long court lists. Wouldn't it make a lot more sense if lawyers remained in our offices, video cameras ready, and addressed other productive matters as we wait for the court to contact us when the Judge is ready to hear us and we're "on-deck?" That way clients would pay only for the 20 or 30 minutes of actual video hearing time, rather than the hours of dead, waiting time. Please explain to me why this isn't now happening. I don't want to hear about infrastructure. If need be, do it by Skype. But do it (end of rant).

• Is blogging dead? No. But I do tweet a lot of stories I might have blogged about in the past. And that's a good thing. A headline or short blurb often tells you everything you really need to know in order to stay reasonably current. But sometimes you want the details and the analysis. That's what blogs are for - still. Will this always be the case? Probably, in some incarnation or the other, but it is a positive development that we also have the microblogging option to make a point, short and sweet.

• Facebook Pages, Like Buttons and other Busts from the Man of the Year - Facebook is a wonderful tool, but most of its new initiatives are gimmicky, and seem to lose steam shortly after the fade of an initial burst of hype that insists the digital world has yet again forever been changed.

• 25 Years of Law - April 2011 will mark the 25th anniversary of my call to the Ontario Bar. This is a bald fact I find extremely bewildering, particularly coming on the heels (as it does) of a reference to me elsewhere in the blawgosphere as one of Canada's "elder statesmen of legal blogging." Time does not stand still, so they say. Someone should throw me a party, I think. And can I possibly hope for a Stanley Cup in Toronto at least once before I retire in about 35 years?

• The G20 was the Story of the Year - I haven't written much about the G20 on Wise Law Blog, largely because of a case I am involved in. I must frankly say, however, that the Toronto G20 debacle represents the absolute low point in my lifetime for the rule of law and protection of civil liberties in this nation. May it not be a sign of things to come.

• The Small Firm is the Future of Law - I poked a bit of fun in Monday's CLawBie nominations post at legal pundits who are forever predicting the end of the legal profession's universe. These dire forecasts are inevitably based on some development adversely affecting the continent's largest law firms. What these pundits often fail to consider is that a primary cause of the tremors on BigLaw's fault lines is the increasingly effective competition large firms face from smaller firms via the internet for BigLaw's traditional client base. The largest firms used their size, stature and decor for decades to play a smoke and mirrors game that implied they deliver superior service. Small firms could not successfully compete with that imaging when cost-prohibitive mass media was the only means of reaching the wider public with information. That has changed forever. Many smaller firms are enjoying great success and growth. The market for legal services is not shrinking. Larger firms are just getting less of the pie, because they no longer have a built-in optical advantage. That is not a crisis for the legal profession. It is a breakthrough.

• My RSS Reader is Getting Awfully Full - And there's nothing I want to cut from it. Oy, that's a lot of reading.

• Omar Ha-Redeye - I am fortunate that law blogging has facilitated a good friendship with this rather remarkable and knowledgeable gentleman, now completing his articles. Jumping from Law Is Cool to the Lawyers Weekly in one year or less, he is already a major player and clearly is a future leader of and in our profession.

• OMG! Law Talk - Hopefully, Omar, Michael Carabash and I will find a bit of time over the holiday break to do another OMG! Law Talk taping. I intend to ask Michael all kinds of questions - on tape - about his Dragon's Den appearance (still not aired) and hopefully, we can all watch him squirm under my cross-examination to avoid breaching his confidentiality agreement.

• Michael Carabash has a new legal comedy vignette series at Dynamic Lawyers, by the way. Check out BLAW - Episode 1 - Reducing Taxes.

• Barack Obama - I'm not terribly impressed by his lack of engagement (particularly given the wallop of his charisma, when he unleashes it), but style aside, he does seem to be stringing together an awfully impressive list of accomplishments, no?

• Articling Students Should be Permitted to Do More In Court - Yet another obvious part of a solution to the Ontario access to justice dilemma is to permit articling students to appear in Family Courts and at non-substantive civil hearings before judges that are now restricted to lawyers and unrepresented litigants. Such a change would enhance students' training, and provide a further cost-effective option for litigants.

• Mandatory Continuing Legal Ed for Ontario Lawyers Arrives in 2011: Will Law Blogging Meet The New "Writing" Criteria? - The Law Society of Upper Canada's Continuing Professional Development Guidelines' - Eligible Educational Activities seem to leave quite a bit of wiggle room on that question, but my interpretation is that seriously-crafted, quality law blog posts on case law, law reform, and legislation, among other things, will likely qualify. The requirements are below:

Writing and editing books or articles (to a maximum of 6 hours per year)

The content must be law‐related and within the CPD definition, must have been prepared solely by the person seeking the credit, and intended for publication or use in course materials, rather than primarily for personal use or marketing purposes. Credit for an article or book may only be claimed once. The credit may also be claimed for editing legal texts or case reports and for preparing case headnotes, with the same restrictions as set out for writing. There is no limitation on the audience for whom the work is
written.

• Launching our Law Office Management Software in 2011 - In 2011, Wise Law will be launching a full featured law office management tool with a lot of bells and whistles that uses a simple desktop platform to integrate and automate a typical law firm's ordinary daily tasks, from accounting to docketing to document generation, ticklers and scheduling. We've been quietly working on it for several years and are very proud of the product we have built. Stay tuned for updates and announcements.

• ClawBie Nominations - We have received a number of very generous 2010 ClawBie nominations and mentions from some of this nation's most respected and gifted law bloggers. I am honestly humbled by their kindness and support. My thanks to Dan Michaluk, Erik Magraken, Antonin Pribetic, Professor David Doorey, David Bilinsky, Donna Seale, and Todd Harrison of Precedent.

Finally, a word about our law office staff.

I could spend several pages telling you all how grateful I am that the Wise Law Office team includes Rachel Spence, our firm's very capable legal assistant, who is better known to our readers as Wise Law Blog's daily 140Law correspondent.

While the lawyers typically get most of the glory, our staffs, associates and students are more often than not the real reason we have wins rather than losses, happy clients rather than discontented clients, and workplaces that we genuinely look forward to coming to every workday.

I'd like to salute Rachel and the the rest our own group, which includes articling students Robert Tanha and Christopher Bird (both of whom are also well known to our readers), my long-time friend, Visvaldis Freimanis, who will be licensed as an Ontario Paralegal in February, and my associate of six years, Shashi Raina, who is now splitting his time between our office and his own private practice in Mississauga.

We have had many successes together this year. I'd like to thank them all for their contributions (and for being a such a swell group to work with).

Thanks as well to the many assistants and staff at the other law offices we've encountered over the year. Your courtesy and collegiality have been noticed. On the whole, you are a group of true professionals.

Season's greetings to all.

- Garry J. Wise, Toronto

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