Law and Innovation – Page 2 – Thompson Rivers University

November 13, 2016December 13, 2016

Why you need to know about Black Swans

Why you need to know about Black Swans

The first encounter:

In 1697, Dutch merchant, William De Velaming, became the first European ever to set eyes on a black Swan while sailing the western coast of Australia. Before this point, no one in Europe had ever heard of a black swan, and its “discovery” sent shockwaves across Europe. The bird left such a lasting mark on the European psyche that three centuries later, the term “Black Swan” has been borrowed to refer to unforeseen and consequentially disruptive events.

Instances of black swans vary from time to time and are spread out through human history. The key feature to remember is that black swans arise out of an inherent psychological bias that humans share against outlier events.

For example, after the First World War, French military engineers constructed fortified trenches that stretched for miles across the French-German border. In their wisdom, the French engineers had envisioned a defensive position that would thwart a future invading force.

The “Maginot Line” was France’s perfect response to a future German invasion, except that the Second World War was not fought in trenches. Innovative battle techniques (i.e. Blitzkrieg) and new technologies of mass destruction transformed the line from a miracle of engineering to a giant ditch of concrete.

But what went wrong?

In his book, The Black Swan, Nassim Taleb tells the story of a turkey that is fed and kept fat by its farmer. This ritual goes on for a thousand days until the Turkey associates each new day with a fresh supply of food.

On the 1001^st day, the farmer slaughters the turkey and feeds it to his family. The turkey has a Black Swan moment.

In hindsight, the turkey’s predicament is perfectly foreseeable. The farmer feeds the turkey because he wants to slaughter it at a future date. However, to the unsuspecting turkey, the pattern of being fed is never broken and so there is little reason to think otherwise. The logical choice for the turkey is to continue eating because the supply of food appears infinite.

Image: The Seventh Seal (1957) - Playing Chess with Death - Ingmar Bergman — “Just because you haven’t died yet, it doesn’t mean that you are immortal” *Nassim Taleb*

A real-life example to the turkey parable is the 2008 Financial Crisis. Prior to the crash, sub-prime loans and mortgage-backed securities were highly favored by lenders and credit agencies alike. In fact, mortgage-backed securities were first introduced in the 1970s as a measure to hasten economic growth and stimulate real-estate purchases. However, it was only after the crash that the rhetoric surrounding their use became highly negative. The financial industry experienced its own black swan moment; it innovated to eat more.

The “Progress Trap”

A theory blames the giant statues on Easter Island for the death of the Island’s inhabitants.

It goes like this: the inhabitants of the island perceived the statues as the highest mark of divine favour. They cleared out vast amounts of land and cut down thousands of trees to erect more and more of them. The process became the ultimate purpose of the Island’s inhabitants.

The building frenzy went on until the Island’s fragile ecosystem collapsed and wiped out the island’s inhabitants. They were not slaughtered by a farmer, but died due to famine and a shortage of food.

A first-year student may refer to this as a “tragedy of the commons”, but there is more to it than just that.

The islanders triggered a “progress trap”. They became victims of their success. For them, the process of building became a synonym for economic output and progress. They even came up with innovative new ways to deforest the land and destroy the very foundations of their habitation.

Looking back, it’s easy to blame them for their demise, how could they not see it? However, for the islanders, their ultimate doom was nothing short of a Black Swan.

“to the unsuspecting turkey, the pattern of being fed is never broken and so there is little reason to think otherwise”

—

We live in an era where an interconnected world is increasingly susceptible to Black Swan moments. Each day, disruptive technologies are transforming the world in which we live.

The legal profession is not immune to these external forces. Our ability to provide legal services is no longer an infinite resource. Each day, lawyers face increasing competition from alternative service providers and digital
cyber platforms (the internet). The threat of artificial intelligence is looming over the profession.

And yet the level of innovation within the legal profession remains stationary. In the past 100 years, the legal profession’s greatest innovative measure is a set of business management principles by Paul Cravath – an innovative approach if the underlying objective is to “eat more”.

This is not to say that firms have stopped innovating. Large firms possess modern IT departments and tend to purchase the latest technology to streamline their internal processes. However, are these initiatives fundamental to transforming the legal profession? Alternatively, do they simply make lawyers more susceptible to a “progress trap”? It is difficult to say.
Large law firms have been able to avoid failure by expanding their client base and downsizing inefficient departments by pursuing austerity. But, post-2008, the demand for legal services is declining. The current 1-2% annual growth figure is highly reliant on macro/global economic trends, such as quantitative easing (printing of money) and population growth. In other words, the legal profession may be waking up one day to a farmer holding an axe.

“The legal profession is not immune to these external forces.”

—

Why Does Access to Justice Matter?

The contemporary access to justice crisis serves as the perfect moment for self-reflection. Somewhere along the road, profit generation became the main focus of the profession while the delivery of legal services shifted to become only a secondary consideration. Most lawyers would agree that access to justice is a serious issue, but there has been little political will to change the profession fundamentally.

In today’s terms, becoming a lawyer isn’t just being part of an esteemed profession, but it is also a relatively reasonable investment. This makes lawyers weary of any drastic changes to the profit-making dynamics of the profession. Meanwhile, people of lower socio-economic background and those living in rural communities are more and more in pursuit of alternatives.

This makes innovative measures aimed at solving issues of access to justice imperative to the future well-being of the profession. Access to justice isn’t just a trendy phrase, but also key to reshaping the delivery of legal services. It is important because it introduces a non-profit, service-oriented perspective to the profession.

Nassim Taleb once said that our goal as a society shouldn’t be to predict Black Swans but to adjust to their existence. The logic of black swan suggests that “what we don’t know is far more important than what we do know”. The mere consideration of outlier events in our macro decisions could reduce their force when they do take place.

This fact alone should encourage the legal profession to encourage more innovative solutions, solutions that go beyond streamlining the process and instead raise fundamental questions as to the nature of the profession.

November 6, 2016

FREEDOM FROM THE TRADITIONAL LEGAL GRIND

We all enter law school with high aspirations. Dreaming of a career filled with meaning, money, and sympathetic clients. But how many of us truly achieve this vision? To what extent are lawyers today happy with their jobs and, more specifically, with the demands put on their free time by their jobs? Why are lawyers today some of the most statistically depressed professionals on the planet? At its core lawyering is supposed to be about helping people. Does providing this help have to involve lawyers sacrificing their own well-being? Isn’t there another way of providing legal services, one that is not a drain on the practitioner’s soul?

All these questions are more important now than ever before given the current instability of the legal profession caused by the many catalysts of change that are applying pressure on the profession to change its archaic norms. More than ever before lawyers and future lawyers are looking for new ways to avoid living a life of 70-hour work weeks that leave no time for themselves. This millennial generation is more cognizant than any before it of the importance of personal fulfillment. The pressure to change being applied to the legal profession is not only coming from the inside. Clients are becoming less deferential to the billable hour and more conscious of its weaknesses. Technology is evolving in ways that can facilitate new forms of lawyer-client interaction and more efficient means of conducting legal research. The outsourcing of legal research and document review, which in the past were duties of junior associates, is more common now than it has ever been before. Change is coming whether we like it or not. The only question is how the profession is going to respond to it.

One response to the inevitable wave of incoming change and the calls for a healthier and more balanced way to practice law is a business model called nomadic lawyering. This novel form of legal service is hugely appealing to the large population of lawyers who are unhappy with the unreasonable demands put on them by their employers. The few firms that operate under this business model offer the lawyers in their employ the ultimate job flexibility regarding both scheduling and location. As unbelievable as it sounds, the lawyers working for these firms actually choose when and where they want to work. Compared to the traditional business model in which lawyers are often obliged to work sixty to eighty hours every week, this liberating alternative seems almost too good to be true!

But it is true!

Companies like Axiom Law have revolutionized the circumstances in which legal services can be provided. An Axiom lawyer is free to accept, refuse, or request a file at any time and therefore can work as much, or as little as he or she pleases. They are also free to work remotely, on-site with clients, or at times in any of the Axiom offices. This serves the lawyer by granting them an unparalleled amount of freedom to travel while they work and it serves the firm by greatly reducing their overhead because they have no need to invest in the fancy offices commonly used by traditional big city law firms.

So, if companies like Axiom have made the switch from the old model and have had so much success in doing so, why haven’t more traditionally-oriented law firms followed suit? The answer lies in the interests of the guys in charge. Partners of large law firms have worked decades to reap the ample rewards offered during their brief tenure atop the pyramid and they have no incentive to give this up for the purpose of making way for innovation.

The solution to the hurdle created by this conflict of interest is that younger, newer lawyers have to branch out, take a leap of faith, and liberate themselves from the old system in order to improve not only the quality of the legal service they are able to provide, but also their overall quality of life.

November 4, 2016

Law Graduate of 2017: Am I Ready?

6 months from now, I will be wrapping up my time in law school and preparing to bravely enter the legal profession. As I think about this, one question unduly crosses my mind: Am I ready? Has law school truly prepared me to be the best practicing lawyer that I can be? Perhaps it has, and I just haven’t realized it yet. Or, maybe it hasn’t, and this is due, in part, to the lack of hands-on experiential learning that exists in traditional law schools.

My answer to this question is: No, I do not feel as ready as I probably should feel after almost three years of legal education.

Why might that be the case? In my opinion, and based on the numerous discussions we have had in L21C, there seems to be a significant gap between what is taught in law school, and the actual practice of law as it exists today. There is more to the practice than simply knowing what the law is and applying it to a legal problem. Essentially, this is already taught in law school, and it is reflected in how our understanding of law is evaluated when we write 100% final examinations. But what about the skills required for interviewing an emotional and frustrated client? Or the skills required for building strong, lasting relationships with clients, and fellow lawyers? More importantly, what about the skills and competencies required to succeed in a world in which lawyering is rapidly changing with innovation, the utilization of technology and the provision of legal services in general. Should we really be learning all of these skills and competencies after graduation? No, we should not! Personally, I would definitely feel more prepared to enter the legal profession if law school offered more hands-on learning and practical experiences.

Recent legal discussion has focused on the transformational changes that are occurring in the legal profession, and how changes to the content of legal education may address this gap between what is taught in law school and how lawyers actually practice. Not only that, if lawyers are going to meet the needs of the 21^st century, there is no better way than to start from transforming legal education, and how we train our future lawyers. I strongly believe that incorporating a practical component to legal curriculums and programs across Canada may be a viable solution. With that being said, I believe that Ryerson University’s proposal to open a “different law school” is a great idea for the following reasons.

1. It would provide more opportunities for hands-on learning.

The idea of having a mandatory placement or practicum component added to the legal program seems promising. This would definitely give law students an excellent opportunity to work in the legal profession under the supervision of a practicing lawyer. Having this exposure before graduation would prove useful to those students who may have no idea what it means to actually practice in the field. Moreover, it would help law students network, build relationships with other professionals (not just legal professionals), and develop their practical skills.

2. It would produce practice-ready legal professionals.

Having practical experience would produce law graduates that feel confident in their skills and abilities as new entrants in the legal profession. Law graduates need to be prepared to enter into a workforce that is progressively changing with new advances in technology. They should be informed of how these new innovations can benefit (or hinder) their practice as they prepare to provide legal services. For this reason, Ryerson’s strong emphasis on the use of technology, both as a tool for education and as a tool for future success, will be an asset to law graduates.

3. New competencies would be taught.

Traditional law schools already teach us how to be analytical thinkers, problem solvers, legal researchers, and good communicators. Ryerson’s proposed legal curriculum would also teach students competencies required for the future. Some competencies listed in the school’s Letter of Intent include: emotional intelligence, entrepreneurial spirit, network building and technological proficiency. These highly transferable competencies would ensure that future law graduates are career-ready and capable of adapting to changing societal expectations. Students may even feel encouraged to explore unconventional career options, practice in a legal area that is novel or respond to unmet legal needs by promoting access to justice.

I know Ryerson’s proposal to open a new law school in Canada has been the subject matter of an interesting and heated debate. However, after reading Ryerson’s Letter of Intent, I appreciate that what the school is trying to do is prepare students to become “practice-ready professionals with knowledge and transferable skills required to compete in a rapidly changing profession.” In my opinion, transforming the way we teach and train future lawyers is exactly the kind of change we need if we are going to keep up with the shifting legal profession, and the 21^st century.

November 4, 2016

Help Me Help You: Legal Mentorship in BC

As a law student, and particularly as an articling student, mentoring is an important part of our development. Mentors are there to help us through times of uncertainty, to teach us, and to pass on along their experiences. But what happens with mentorship once you are finished articling?

The prevailing idea is that the firm you work for as an articling student or as a new lawyer will informally mentor you; however, while that firm may teach you how to do the day-to-day work in a chosen area of law, there is no guarantee as to how much mentorship you will receive. With the billable hour still king, there may be a lack of time or manpower to mentor a new lawyer as they adapt to a challenging new career, particularly in areas such as the business side of how a law firm runs, skills to deal with clients, personal wellness, and work-life balance issues. Even experienced lawyers may need mentorship as they strike out on their own, or if they begin practicing in new areas of law. When you work alone, or you do not have a sufficient professional network to support you, where do you turn to for mentorship?

Law Society of BC Mentorship

In BC, the Law Society of offers continuing professional development (CPD) credits in hopes of fostering mentorship relationships within the profession. On their website, the Law Society explains their mentoring program as “lawyers with experience or expertise in a practice area or practice skill providing guidance or advice in support of the professional goals of another lawyer, or an articling student in another firm, who requests assistance.”

The Law Society itself must approve in advance a mentorship plan, which includes such things as the mentee’s specific development and learning goals, must encompass broad practice issues and skills, and that the parties plan to meet a minimum of six hours over the course of year with documentation of the time spent when the hours are complete. Mentoring plans that do not qualify for CPD credit include “client or business development, marketing or profit maximization, wellness or work life balance issues, or seeking advice on specific client files.”

But is it Enough?

These guidelines raise some concerns. To begin with, since the Law Society’s mentorship program is strictly volunteer, it is unlikely to fulfill the mentorship needs of all of its members. It is not only new lawyers that need mentorship; solo practitioners, experienced lawyers practicing in new areas of law, or lawyers starting their own firms may desire mentorship. While the CPD credits are a good attempt at incentivizing lawyers to become mentors, there may still be a shortage of mentors compared to the need.

Being on a volunteer basis also runs the risk of a lack of diversity among mentors offered by the Law Society. While the Law Society and CBA have somewhat addressed this in mentorship programs through the Women Lawyers Forum (WLF) and Aboriginal Lawyers Mentorship Program, a lack of mentors would be unlikely to match the diversity of the Law Society membership requesting mentorship. As discussed in class, the legal profession is having a problem retaining women and culturally diverse groups in its ranks, and having access to mentorship from lawyers in similar self-identified groups may be one solution to help keep them in the profession.

Finally, the Law Society mentorship plan has limitations on what areas of mentorship qualify for CPD credits. While newer lawyers may need assistance with broad practice issues and skills, I feel the law society is not fulfilling the mentorship needs of its membership by not allowing for CPD credit mentorship of non-legal areas such as business or client development, marketing, and wellness or work life balance issues. If, for example, you are a solo practitioner in a rural part of BC and need mentorship on how to run and develop your practice, where do you turn? While online courses may be offered by the Law Society in these areas, an experienced solo practitioner would be an invaluable mentor to these lawyers, and could only be a phone call away. If the Law Society is going to offer CPD credit mentorship to its members, shouldn’t it be encouraging mentorship in all areas of being a lawyer, not just practice issues and skills?

While the Law Society has endeavoured to ensure that lawyers in BC have some access to mentorship in their area of practice, it is currently still on the lawyers themselves to develop their own mentoring network that will fulfill all of their practice needs and questions. Networking has always been emphasized in law school as a way to find a job, but the true value of networking now may be the mentorship it provides later.

November 3, 2016

Forgive us, Canada! Student Debt & Legal Aid

As freshly graduated students and young lawyers, working in the public sector or in legal aid is a difficult path to decide upon, for those who wish to pursue it. As graduates of Canadian Law schools with usually around anywhere from $50,000 to $100,000+ in debt, it is one of the first things on all of our minds when we are about to graduate. I have personally always wanted to work in Legal Aid, and ideally right out of law school. However, over these three years, as I have watched my debt increase significantly, this has become a non-option if I want to pay my loans off in a reasonable time.

Unlike Canada, the American Bar Association has a sturdy system of loan repayment assistance programs (“LRAPs”), which provide loan repayment or lower loan payments to graduates entering specific types of employment, usually law-related public interest jobs. At the federal level, attorneys who work for a non-profit organization, the government, or a few other qualified employers may be eligible for forgiveness of their federal direct loans after making 120 payments and meeting other qualifications.

At the state level, 26 Loan Repayment Assistance Programs (LRAPs) in 24 states provide loans or grants to civil legal aid attorneys and in some cases, other public interest attorneys, to help them pay their educational debt. Many of these programs are set up to comply with the tax code provision that makes the assistance non-taxable income, which helps even more. There is also the option of Employer Loan Repayment Assistance – many civil legal aid organizations and some other public interest employers provide loan repayment assistance to their attorneys.

In California for example, legal aid firms are well-equipped. The largest, Bay Area Legal Aid, has eight offices around the Bay Area with many attorneys at each location. The lawyers are dedicated and passionate, and many of them are from prestigious law schools such as Berkeley, Columbia, Harvard, etc. Additionally, a lot of them have been working in legal aid since they graduated law school, as this is a tangible option when they are guaranteed loan forgiveness.

These programs make working in the public sector so much more accessible, and even desirable. From an access to justice perspective, it greatly benefits the public to have access to plenty of lawyers who are well-trained and from the top schools in the country to represent them.

The opposite is true in Canada. In Alberta, for example, legal aid is funded by the provincial and federal governments, and the Alberta Law Foundation – yet funding is a constant issue. There have been many layoffs in legal aid and the salaries are not nearly as high as one could find in a firm, or in-house position, so students are choosing the latter.

On a more positive note, there has been some movement toward loan forgiveness for lawyers. The Canadian Bar Association’s B.C. branch (CBABC) has been lobbying the provincial government to add lawyers to StudentAid BC’s loan forgiveness program. There is a high need for lawyers in rural communities and the CBABC has been attempting to address the issue through their program Rural Education and Access to Lawyers which is funded by the law society and the law foundation in the province.

Additionally, some Canadian law schools are experimenting with income contingent loan programs. At York University’s Osgoode Hall, there are a few students included in a program that provides funds to cover tuition costs, requiring repayment depending on the student’s financial status before and after law school. Osgoode has implemented a pilot project that is an income contingent loan program aimed at granting eligible students loans to cover tuition, which are to be repaid according to their post-law school income levels.

All of this is definitely a start, and I am very optimistic that one day we can get to a place where legal aid is more accessible for all – including the lawyers that want to pursue a career in it.

October 30, 2016

In Demand: A Business Savvy Lawyer

Throughout my schooling and work experiences thus far I have always contemplated the importance of being a self-starter. Being motivated and having the ability to motivate others, working towards pre-set goals, and focusing on nurturing relationships are all components of this. The overarching theme, however, is having that ‘entrepreneurial spirit.’

But what does entrepreneurial spirit really mean? More importantly, how is that relevant for us as future lawyers?

I believe it is very important and highly relevant! The practice of law is such that you are your own brand. Therefore, you will be perceived in the manner that you portray yourself as an individual. This is true, regardless of the firm you work for. Whether you come from one of the national firms or a small to mid-sized firm, you the lawyer are the service provider. Therefore, building your own brand is very important. The key to this is being cognizant of this fact before you enter the practice.

I believe your personal brand and having a sense of entrepreneurial spirit are two sides of the same coin. I have read many books on personal development and the common thread between them is the importance of building daily practices for yourself to ensure long-term success. Building habits that support entrepreneurialism and integrating these behaviours into daily life should be the first steps to building our practice.

Your Personal Brand

Now what does that really mean? As Jeff Bezos, the CEO of Amazon famously said: “Your brand is what people say about you when you are not in the room.”

As I mentioned earlier, it really comes down to your personal interactions with a client that make all the difference not necessarily which firm you work for. Whether or not a client wants to do business with you is based on the experience they have had with you and the service you have provided. So it is important to focus on your own core values and build disciplines to create your own unique personal brand.

I suggest taking some time for yourself and really thinking about what it is that you really want from your practice, where do you see yourself in a few years, and most importantly how do you want to be known? You don’t need to have any business knowledge or background to know that building and nurturing client relationships is key to any prospering business’ success. But what will set you apart?

In a non-law interview I had a few years ago, one of the interviewers asked me to describe my ‘personal brand’ in 3 words. This was an interesting question and really got me thinking – so perhaps this is a way for you to start thinking about this idea as well. These are some questions you can ask yourself to help you in determining what defines you:

When others see something as a problem, are you that person who sees the opportunity? Are you that person who is willing to step out of their comfort zone to really gain the most out of an experience? Are you focused on pushing paper or really digging deep to provide the best value to your clients?

To the point about providing the best value, one of my favourite authors, Robin Sharma says it well, “the market place rewards value delivery.” I believe this is a very key insight. Once we begin practicing law, if we concentrate on providing the most value to our clients, we can really set ourselves apart! Along with trying to provide the best value, Robin suggests focusing on your “craft” and gaining mentors along the way to help pave your path for a successful legal career.

Which leads me to my next point: surround yourself with people who understand your vision, who can help you reach your goals and help you become an expert in your area. A mentor can really assist in shaping your future. They can help you determine what your strengths are (personal brand) and keep you motivated to achieve the highest levels of success.

Entrepreneurial Spirit

This phrase may be overused, but it is relevant to the field of law. Whether you are working at a big law firm, which may not require you to seek out your own clientele (yet) or whether you are at a smaller firm, eventually you will be required to establish your own client base or contribute to the existing client relationships.

In my opinion this is a great opportunity and also very exciting. You will be able to focus on your set of clients and provide them tailored advice. The way to get a head start is by developing values that push you to really think like an entrepreneur.

There are a few reasons to develop an entrepreneur’s mindset. First, it will separate you from the rest of your cohort, who may not have yet thought about the future and the realities of the legal field. Second, you may eventually decide to drop out of the mid-to-large sized firm and create your own legal business. In which case, it is absolutely essential to have that inner confidence to pursue entrepreneurial opportunities in a ‘business-oriented’ manner.

Here are some ways to go about this: Read a book on a successful self-made entrepreneur, listen to unique leadership speakers (Robin Sharma is great), or just take the time to self-reflect. This is not an overnight realization, nor is it only for those that are already ‘business savvy’ – this is a life-long pursuit and you can begin working on it today!

As we approach our careers, these skills will help us build a strong foundation and will be useful in the challenging but hopefully rewarding legal practice.

October 27, 2016

Cultural Competency: A Vital Skill for a 21st Century Lawyer

Oh, Canada! I believe that our great nation is one celebrated for its racial, ethnic, cultural diversity in our people, industries, and way of life. In our increasingly multicultural society, it comes as no surprise that lawyer-client relationships are also as culturally diverse. With that in mind, I believe that a successful 21st century lawyer should be well-equipped for the realities of practice – and that is to be culturally competent when interacting with diverse clients, fellow practitioners, and other members of our legal profession from all walks of life.

* * *

Just what exactly is cultural competency?

Cultural competency has been defined as a “set of congruent behaviours, attitudes and policies that come together in a system, agency, or profession that enables that system, agency or profession to work effectively in cross-cultural situations”. Put simply, a culturally competent lawyer is not only aware of their clients’ cultural backgrounds, but goes beyond to recognize that cultural undertones may inform behaviours, motivations, and their relationship with the client. In doing so, a culturally competent lawyer can effectively assist with advocacy and communication across cultural experiences.

Why is there a need for culturally competent lawyers?

Cross-cultural clients often face challenges and barriers when dealing with legal issues that stem from their unique cultural experiences. This list is not exhaustive nor reflective of every interaction, but I believe that these are common issues that cross-cultural clients may face:

Communication – The obvious is a language barrier between a lawyer and cross-cultural client. However, communication can include client’s body language, non-verbal cues, and mannerisms that may vary from culture to culture. When the lawyer is not cognizant of these cues, they are prone to missing important indicators of communication from the cultural client.
Cultural values – Individuals of different ethno-racial groups may think, behave, and express themselves differently from other clients. Sometimes, these practices greatly contrast common practices of mainstream culture (i.e. eye contact in North American culture regarded as confidence vs. direct eye contact can be viewed as disrespect in East Asian cultures)
Colour-blindness – Colour-blindness is a huge issue. Instead of working to recognize and accommodate cultural differences to provide appropriate legal services, colour-blindness ignores that there are even differences in the first place. This ideology disregards that clients of cultural groups foster diverse values, behaviours, and communication needs, all of which require special attention.
Stereotypes – There is also a danger of negative stereotypes being projected onto cross-cultural clients. Lawyers have to be cognizant of these stereotypes, so that they do not become normalized, repeated practices against clients of a particular cultural group.

What are some ways to utilize cultural competency in practice?

I do not think becoming a culturally competent lawyer is particularly difficult. It definitely takes practice and requires adopting a set of lawyering skills tailored to this special niche of clients, but it is like learning any other skill.

Courts, legal aid clinics, and many law firms have already adopted translators, interpreters and other language aid tools for their cross-cultural clients, which is a great start. In order for lawyers to provide competent services to clients of other cultures, basic knowledge of their cultural practices or values should be given preliminary research much just like any other legal issue that would be given the same attention. Another helpful tip is to adopt an open, culturally appropriate attitude when interacting with cross-cultural clients. I think the biggest challenge for lawyers is to seeing past the dichotomy between the dominant Western culture and non-Western cultural practices. If lawyers stop trying to make sense of cultural practices using dominant Western ideals as a benchmark, I think we can foster an attitude that is open towards clients of other cultures, and can even spot similarities that were not as obvious before. Lastly, I believe that there should be more attention to cross-cultural education in law schools, or teaching cultural competency in law school clinics and continuing legal education. This change in education could help implement core skills in law students on how to interact with cross-cultural clients, before they enter the profession.

Lawyers are advocates for clients from all walks of life including clients of other cultures. So isn’t it time we recognized cultural competency as a necessary skill to being a successful lawyer in the 21st century?

October 26, 2016

Terra Firma: My Experience at a New Type of Legal Startup

WHAT IS TERRA FIRMA?

Like many law students running through the fall interview process of second year, I had little idea of what I wanted to do in the summer before my third and final year of law school. I was very fortunate that a family friend of mine had heard of my predicament and reached out with an offer to come work at his firm.

I knew that the firm’s primary focus was residential real estate law. I also knew that this firm, Spagnuolo and Company, is one of the largest residential real estate and conveyancing firms in terms of pure volume in British Columbia. However, what I did not know was that I wouldn’t really be working for the firm; not directly, anyway. This job offer was a summer position at a new company that the principal of the firm was starting to create a new system to essentially automate a portion of his work.

This company was called Terra Firma, and it was designed to systematize and expedite a chunk of the firm’s business. More specifically, it was a new way of providing title reviews for property. Essentially, during the process of preparing documents for the transfer of residential property, clients will get in touch with a firm like Spagnuolo and Company to have a lawyer review the real estate title of the property in question, and explain to the client several pieces of information contained on the title.

One of these pieces of information is related to non-financial charges (as opposed to financial charges, like mortgages): that is, many properties contain easements, covenants, statutory rights of way, etc. These charges could ultimately have an effect on your ability to use the property as you see fit, so having a lawyer look over these charges is a good idea. The majority of time these charges don’t have any real noticeable effect. Usually they merely grant a right to, for example, allow Shaw to enter the property to check on cable lines or grant a right to the neighbouring property for their roof to hang over a portion of your property.

Traditionally, in reviewing the title, the lawyer would often first have to look up the real estate title, order copies of the actual charges listed on title, and then spend time reviewing those documents and explaining it to the client. All these steps of the process cost money, and this cost was ultimately passed over to the client. Terra Firma, however, was a fix for this process.

Essentially, Terra Firma is a “Netflix-style” subscription service, whereby clients (usually realtors) would pay a monthly fee and have access to a library of not only the PDF’s of these non-financial charges, but an accompanying one-page title review on the Spagnuolo and Company letterhead. The business idea would theoretically save realtors a sizeable portion of money they would otherwise spend in ordering individual charges and having a lawyer review them every single time.

Where I came into the picture was the actual reviewing of the titles. Under the supervision of a lawyer, myself and another TRU law student would receive PDF versions of these non-financial charges that were ordered by several other employees, read them, and write a short one-page review. Then we would package the non-financial charge and the review in one document and add it to a library, which would eventually become available to paying clients.

By the time I left to begin my third year, Terra Firma had not yet completed this library, so clients could not yet sign onto the website and receive their charge and review instantaneously. However, the company was well on its way and already had a sizeable client base. Clients currently pay a monthly fee, but at this point place and order and receive the finished product within 3 days.

THE FUTURE OF LAWYERING

So what does this have to do with the future of lawyering? Well, from my experience, there were several parts of this experience that highlighted some changes ahead in the legal profession, including:

Automation and Systems: Residential real estate has been discussed by several lawyers I’ve met as a portion of the legal practice most susceptible to automation. Terra Firma is potentially one of those systems, as it in a sense automates a large portion of the business the firm was previously doing. Title review is not an overly complicated job, which meant that law students and other employees were able to review the titles and send them to a lawyer for a quick check over for quality control. The beauty was that once the title review was finished, it was added to a library and could be accessed any number of times it was on title, which in the case of strata properties or apartment buildings, was actually quite often.

Use of Outsourcing: One of the most interesting things I found about Terra Firma was the use of a legal company in India to review documents. We would package 100 or so individual charges, and send them to India for review. The law students would then review the documents sent from India, make changes where they were needed, and send them off to a lawyer for a final check before being added to the database. This meant that, due to the time difference between Canada and India, that the database (and currently, individual orders) was constantly being updated. The use of outsourcing for mundane and repetitive tasks has already been mentioned in books such as “The 4-Hour Work Week”, and it was interesting to see its effectiveness in the legal context.

Client-Centric Business Focus: The days of charging clients exorbitant amounts of money for things they didn’t really understand is over, especially for the layman trying to buy a house. Terra Firma’s monthly fee structure is one way of attracting clients who would rather not pay for each charge and then have a lawyer read it and tell them what it says. But Terra Firma was client-focused in other ways as well. The one page reviews were almost completely devoid of any legal jargon. They were ultra-simplistic, and took into account that a client doesn’t really care what a 90 page document from 1942 says, all they care about is whether there is anything in it that affects them in their day-to-day life. Even if they would like to see more information about the charge, part of the product they receive contains a PDF version of the charge itself. Ultimately, the mandate at Terra Firma was to provide a very accessible product for the client at a price that seemed reasonable.

Remote Offices: While we did have a small office space to work out of, once we had the system figured out every part of Terra Firma was accessible from outside the office. We kept track of individual orders on a Google Doc style spreadsheet we all had access to, we had portals into the office servers set up on our personal laptops, and title or charge ordering services all have online access as well. Even Dye and Durham, a legal courier service for older documents that had not been scanned and needed physical copies ordered, had an online ordering service. There were days where I was sick, or couldn’t make it in due to prior commitments, but I could always make up the orders needed by picking up my laptop and working on them from home.

WHAT DOES IT MEAN FOR THE LEGAL PROFESSION?

The reception from other lawyers when I told them this was mixed. On the one hand, many thought it was a very interesting project with a lot of potential. Some, on the other hand, weren’t buying it and thought it wasn’t the best idea. In fact, one lawyer got visibly upset when he discussed the loss of work it would mean for other lawyers.

In any event, it was an incredibly interesting experience and it was refreshing to see some innovation in a profession that is famed for its “last across the line” reputation. While it may lead to less work for some lawyers, the reality is that clients logically would be more attracted to receiving the same product with a more accessible interface and for a lower price.

At the very least, it will be interesting to see where such systems will take us in other areas of law.

October 26, 2016

JD, Ryerson?

Ryerson University in Toronto is developing a proposal to create a new JD program “that focuses on innovation in legal education for the benefit of graduates, their communities, and the broader society.” That quotation comes from Ryerson’s Letter of Intent, available here. It makes fascinating reading. Compared to the traditional law curriculum, it is a profound re-think of what training lawyers is all about, with emphasis on producing “graduates who possess the initiative to respond to unmet legal needs, who exhibit a commitment to social engagement and community leadership, who are able to envision new applications of their education.” Obviously I like these ideas; in a smaller way, the same ones are reflected in L21C. (On the other hand, I’ve seen the LOI described as “buzzword bingo” – I don’t really agree but I still think it’s funny.)

We’ve had an interesting debate on our internal course site (Mattermost) about this. With the permission of those who contributed, I’ve moved it here so that it can be read more widely.

I hope others, in L21C and beyond, will add their thoughts.

Me: this is the letter of intent outlining Ryerson’s proposal to open a law school. I’d be very interested to know what you think of this. I expect that many of you will share the views of skeptics who have pointed out the shortage of articling positions in Ontario (and generally), and questioned whether Toronto needs another law school. Personally, I’m very persuaded by the argument that there is a need in society for a different kind of law school, one that uses innovative approaches to build skills and provide hands-on experience, focused on the needs of the users of legal services. I think it will be challenging to turn that aspiration into real results, but Ryerson has already shown real leadership in legal training, and they might just pull it off. Chris Bentley is one of our guest speakers, so you will have a chance to talk to him about it.

Lorna: The job market being what it is, they’d only be doing their students a disservice to start running a program and graduating people out into the employment void. If it is the case that they will provide the kind of training that’ll comes from articling, and where a good part of the curriculum is aimed toward alternative careers in law, then it could be quite promising.

Me: think they have thought very carefully about the argument that Ontario doesn’t need another law school and that they will be adding more people to a saturated job market. Those are serious concerns. In my opinion the proposal has serious, convincing answers to them. One of the answers – and I find this very compelling – is that there is clearly a huge need for more lawyers, if you look at it not from the point of view of law firm hiring stats but at social need. Ontario’s population has doubled in the last 30 years, but only one new law school has been added in that time. Most people who experience legal problems don’t get help from a lawyer because they can’t afford it. If something is too expensive for those who need it to access it, that suggests an undersupply, not an oversupply. Of course it does nothing to fix this problem if you create another law school like all the others that trains lawyers in a way that fails to bridge the gap. But I think Ryerson has genuinely considered how to do that and has come up with a well designed, well considered plan. A couple of other points mentioned in the report: there are high numbers of Canadian students training in law schools overseas (US, UK, Australia) who come back into the market here, and would train in this country if there were places for them, so to that extent opening a new school doesn’t increase the supply of law graduates. And, last point, as Omar Ha-Redeye says in this Slaw post, Ryerson aims to prepare law graduates who will create the jobs for graduates of other law schools.

Anita: I think it is a great idea but only if the program satisfies the articling requirement and if the tuition is not too high. I feel that one of the greatest barriers to new graduates who may want to practice differently from the traditional models is that there are very few articling positions with firms who don’t run with the traditional model and so if we do find an articling position, it will most likely be one with a traditional model. Articling with a firm steeped in the traditional mode of practice arguably instills that model in the articling student. Furthermore, a heavy debt load after graduation would prevent a recent graduate from taking riskier paths for fear of unpredictable financial returns. At least that is how I feel when looking for ways to practice law differently in my own career.

A Day in the Life of a Rural Lawyer

A quiet secluded life in the country, with the possibility of being useful to people to whom it is easy to do good, and who are not accustomed to have it done to them; then work which one hopes may be of some use; then rest, nature, books, music, love for one’s neighbor—such is my idea of happiness. – Tolstoy

After living in Calgary for several years, my Dad opened his own law firm in a small farming community. He had just finished articling, had a wife and two children, and no money. It was one of the best things that ever happened to us.

I am not a rural lawyer (yet), but I have developed a great deal of experience working in our family law office, running my own registry business, and being involved in our community. I have also had opportunities to speak with a variety of lawyers, about their professional experiences.

Deciding where to practice law should be an informed choice. By distilling my perspective into one day, I aim to share a picture of what practicing in a rural community could look like. Additionally, I hope to engage considerations of entrepreneurship and work-life balance.

In the morning, I contemplated what to show my classmates about a rural lifestyle. While enjoying my coffee, I watched a beautiful sunrise and four moose in our field. I thought, “This is already going to be good”.

My drive to the office did not involve waking up early to avoid traffic, and only took ten minutes. Next year, I will be able to drive my son to school, because my work day begins around the same time. Although that means, he will argue with me to listen to Johnny Cash in the car.

The Elementary and High School are both only two blocks away from our office

Having my own business in a small community, and being close to my son’s school, will help me balance a busy career with being an involved parent. I will have the flexibility to meet with his teachers, coach his sports teams, and be home for dinner.

One drawback of small communities is that they tend to lack anonymity. For me, this was a positive. Having a more public life pushed me out of my comfort zone, and taught me to be an open, honest, and accountable person. Qualities which I hope to instill in my son.

At the office we have transparent fees, which are mostly flat rate and quoted directly from a lawyer. We often provide free consultations and notarizing, which has brought us a lot of repeat business and loyal clients.

Our clients have personable relationships with us. We care about the people in our community, and we are respected and appreciated by them. It is important for us to be involved in the community, in order to understand their particular needs.

We provide a variety of legal services, including Family, Wills and Estates, Secured Transactions, Real Estate, Corporate, and Litigation. Sometimes, in a rural setting, these regular transactions take on a unique form. For example, instead of registering a lien on someone’s car, it may be on a tractor or the quota of “eggs from chickens”.

Fridays are busy Real Estate days. One of the local bank managers knows this, and tries to help our Paralegals by hand delivering documents or drafts we need. We also have collegial relationships with legal staff in the surrounding communities. It’s nice to have such friendly interactions with other law offices and banks, because so much of our work is interconnected.

In the afternoon, we drove to court in Calgary on an interesting estate matter. We usually travel to court in Didsbury, Airdrie, Red Deer, Calgary, and sometimes Edmonton.

Even though we serve a large rural area, we are still only about 50km away from the Calgary Courts Centre. The travel time is significant enough that we think twice about bringing small issues to court, but not enough to dissuade us from going when needed, or from catching the Flames games.

I know of many sole practitioners in rural communities who would like to retire, and pass their thriving businesses on to young lawyers. I hope my story will inspire some students to inquire further into the merits of business ownership and rural law.