All of these pioneering law students are gaining important, cutting-edge skills that are very much in demand in today’s legal market.But these learning experiences not just about the new.The students are also developing and practicing the traditional professional skills of lawyers. They’re learning to understand and solve client problems.They have to communicate clearly, professionally, and accessibly.They have to be organized – no coasting till the last week and then banging out a final paper over a few all-nighters. They have to collaborate with professionals from other fields, including IT professionals at Neota and the MoJ.
Perhaps most importantly, these innovative educational experiences call on our students to put the client at the centre of what they are doing.On the vital importance of training new lawyers to be client-centred professionals, see Professor Julie Macfarlane’s excellent and thought-provoking recent blog posts on the deficiencies of legal education.
This journey will be exciting and challenging.The blog is here for the students to share their reflections, ideas and observations along the way.I’m looking forward to some great posts and comments. Please join the conversation!
Congratulations on your acquisition of A New Order. We hope you will find this a worthy volume. Sturdy, well-constructed, highly resistant to empty sentiment and received wisdom. If looked after with care and attention, this collection will serve you faithfully for a lifetime.
As you read these pieces, you will be welcomed deeper into the world inhabited by the Followers of the Apocalypse. The FOTA are a noble and hardy order, if too easily dismissed as scruffy and incorrigible malcontents, unfit for participation in serious enterprise.
Some readers are advised to proceed with special care. Be particularly cautious if you have a history of intoxication via certain common tropes, such as those that spread “disruptive innovation”, or “There Is No Alternative”. Sudden immersion into the FOTA mindset after simmering in consensus reality can be a jarring and dizzying sensation. Finding oneself unexpectedly absorbed in British higher education policy wonkery can be difficult to comprehend, at least at first.
Whatever their orientation or attributes, it is common for the Followers to experience sensations of disorientation, agitation, and occasional discomfort when reading. Do not be alarmed. Indeed, these symptoms suggest that the Follower of the Apocalypse is still capable of feeling outrage, sadness, and a refusal to accept the triumph of jive bullshit as inevitable. In many respects, reading FOTA is facing the horror we are building without the comforting escape of chipper buzzmemes that promise a happy ending. Without the consolation of not caring.
To relieve these pains, David Kernohan has provided numerous means of relief. Elegant phrasing. LOLs and love of LOLs abound. Keep your ears on for esoteric and cleverly placed musical notes. Sense the camaraderie and fellowship that warms so much of the writing. And understand that the stories and the struggles being shared in this collection are not ended.
In my non-work time, I’ve been re-reading a novel that I first read many years ago: The Citadel by A.J. Cronin. The Citadel was published in 1937. It was made into a film in the 1930s, and adapted for television several times, most recently in the 1980s. The Citadel was once a very famous book, but it seems to have faded out of consciousness these days. I hadn’t thought about it for ages, then I saw it mentioned somewhere by chance and thought “I’d like to read that again.”
I’m glad I did. It’s a good read. But more importantly – and the reason for doing a blog post about this book – it turns out that this is a fascinating to read from my point of view now, as a someone who’s part of a profession undergoing great change and examination of its own purpose, ethics, and place in society.
A.J. Cronin was a doctor. His novel is about a doctor, his fictional alter ego Dr. Andrew Manson. At the beginning of the novel, Dr. Manson, an idealistic and principled young medical school graduate, arrives in a remote Welsh mining town for his first job.
Andrew Manson works to heal the struggling, proud coal miners and their families. He gets challenging diagnostic cases and he is brilliant at solving them. He encounters public health problems – typhoid from a leaking sewer, lung disease from anthracite dust – and he works hard to understand the root causes and solve them, even to the point of taking radical action. In a memorable scene, he and a friend clandestinely blow up a leaking sewer to force the authorities to fix it. He is hampered by bureaucratic indifference, and by the ignorance and outdated approaches of some of his fellow doctors. He doesn’t make much money. He’s also a bit of a hothead and a prig. Cronin was too good a writer to make his protagonist an insufferable saint.
Later in the novel, Andrew is seduced by opportunities to make more money and live like his more prosperous doctor friends, who find rich patients and charge them silly money for largely useless treatments. He becomes, in conventional terms, successful. Cronin portrays this change as a loss of his soul. And what happens next … you’ll have to read it to find out.
There were many points in the novel that had a new kind of resonance for me, reading it again after years in the legal profession and teaching law.
For example:
When Andrew first goes out to practice and work on real cases, the things he learned in the lecture hall at medical school seem like they are from another world.
His professional choices are dominated by the tension between personal success and prosperity, on the one hand, and the ideals of his profession and his idealistic desire to serve the public good, on the other. Cronin depicted Andrew’s attraction to material success as a kind of ethical failure, but he didn’t mean it as an indictment of his protagonist as an individual. He saw the medical system of his time as inevitably (systemically) producing such moral failure. He said of The Citadel: “I have written … all I feel about the medical profession, its injustices, its hide-bound unscientific stubbornness, its humbug … This is not an attack against individuals, but against a system.”
Andrew has virtually no power and no route to dealing with what causes patients to be ill – malnourishment, bad sanitation, dangerous working conditions. All he and other doctors can do is patch things up when people become ill. They are ambulances at the bottom of the cliff, not a fence at the top of the cliff.
The Citadel was written before there was a National Health Service in the UK. All doctors were, essentially, small businessmen (they were indeed mostly men). Every decision about taking a patient necessarily involved a calculation about profit and financial viability, and could not be based solely on the patient’s need or the complexity of the case.
One thing that is fascinating to me about The Citadel, a twentieth-century book, is that these dilemmas are so similar to the ones faced by medical characters in nineteenth-century literature. There are great fictional doctors of previous generations caught in the same conflict between idealism and material success, like George Eliot’s Dr. Lydgate (one of my favourite fictional characters of all time). I don’t think the central dilemmas for doctors, or their fictional representations, are typically like that now. But … they still kind of are for lawyers.
The National Health Service was created after the Second World War, in 1948. The Citadel’s powerful indictment of the ethics of profit-driven medicine is thought to have helped lay the foundation for the creation of the NHS.
This is a fascinating tale for lawyers going through self-examination about their role as professionals, and reflecting on the systemic strengths and weaknesses of our profession. I recommend it to any L21C partners who have a bit of time for novel-reading after exams are over. The gender and racial attitudes are … no better than you’d expect from a book published in the 1930s. But if you can overlook a handful of cringe-making moments of that sort, it’s a book full of humanity and insight, especially for twenty-first century professionals in the process of shaping their professional identities. It has a lot to say to us.
It has often been said that a major problem in law firms is the inequality of representation within them. Law firms are traditionally dominated by white males, and partnership is often the exclusive domain of the senior white male. Many firms will adopt hiring policies with the view to promote more diversity within the workplace. However, these policies rarely have the desired result, as over time many of the female or minority lawyers move on and the status quo remains.
In my opinion a few of the keys to maintaining diversity within a firm are relationship building, and retention strategies. It is all well and good to have a policy in place to promote diversity when hiring individuals, but if they do not stick around and work their way up in the firm these strategies cannot be seen as functional. A major component of keeping people around is in the environment that is created and the relationships that are built after those individuals are hired. If the senior associates and partners of the firm are not open, welcoming, and evenly distributing the quality work amongst a diverse group of articling students and junior associates there will likely be a disconnect between those parties who are not getting equal treatment. The more established lawyers within the firm must also be sure to make a concerted effort to avoid falling back into the traditional cycles and following the biases that have perpetuated the status quo. A firm must be sure to maintain this type of equal-opportunity working environment as much as possible to establish the relationships required to keep this diverse group of young lawyers happy and productive. If people begin to feel like they are not getting equal treatment they will likely begin to feel unappreciated, and begin to look for other opportunities. However, if they are getting the quality work and building strong relationships they will be more likely to stick around and become productive team members.
In conjunction with the building of relationships firms must also have strong retention strategies. Certainly some, if not all, of the items mentioned above will also play a role in such strategies. On top of building relationships and making young lawyers feel like valued members of the team, the firm must also have a plan for keeping those parties around for the long term. A number of things can make up this plan, and again can include much of the items noted previously. For instance with younger employees a retention strategy could involve incorporating some form of flexibility in their future with the firm in the event that they would like to start a family. As most people know having a young family can make it difficult to be in the office full time. Therefore thinking ahead and creating a flexible face-time policy can be effective in retaining those young lawyers as well as building a respectful and open working environment moving forward. A similar policy can also be used as more senior lawyers age, and hope to wind down their practices. It may be that these types of retention strategies can even help junior and senior lawyers build their relationships through a time-sharing type of system that maintains the flexibility that they desire while continuing to be productive. These relationships can also create significant learning opportunities for those young lawyers that choose to share time with senior associates and partners. Overall these types of policies can allow for the flexibility that is required to raise young families or transition towards retirement while still providing a meaningful contribution to the working environment. They can also promote the building of strong relationships and loyalty within the firm.
Although these suggestions are not a complete answer to the diversity and inequality issues that are currently at play in the legal community, they are certainly a step in the right direction. If firms can establish the type of environment that a young and diverse group of lawyers want to be a part of for the long-term they will go a long way to having their hiring strategies create truly diverse firms, as opposed to being merely hiring strategies without achieving true long-run effectiveness.
Last year Justice Abella, from the Supreme Court of Canada, gave a talk at Thompson Rivers University’s (TRU) law school. During the talk, she commented on how slow the practice of law is at evolving. She presented the analogy that if we were to take a surgeon from a hundred years ago and place them in an operating room today they would be lost. The practice of medicine has drastically changed to encompass the advancements and breakthroughs that have been made with science and technology. Justice Abella then went on to suggest that if you were to take a lawyer from a hundred years ago and place them in a courtroom today, they would need a bit of time to get caught up on the new rules of civil procedure but ultimately would be able to run a trial. I think this analogy speaks volumes as to how slow the legal profession has been at evolving and I contend that this issue is one that spreads across all facets of the practice of law. Moreover, law schools are a great starting point for which this problem could be addressed, yet little is being done.
Law schools are responsible for teaching and molding the minds of future lawyers, and yet for the most part they perpetuate outdated teaching methods. Of the law courses offered at TRU less than ten percent offer some sort of hands-on practical approach to teaching law. With that being said, none of those hands-on courses are black-letter-law courses nor are they required courses. Take the required courses of contracts law or civil procedures. A student can go a whole course learning about the tests and theoretical underpinnings of the law without ever learning how to apply it in the real world or have any practice drafting a legal document. Unfortunately, this is not an issue that is distinct to TRU Law; it is bolstered for the most part by all Canadian law schools.
Some may argue that articling is there to teach law students the practical aspects of the law. I would analogize that the articling process is similar to having taught someone the theory of how to swim and then throwing them off the deep end into water and demanding they swim. Of course, in British Columbia, articling students are assigned a principal as a sort of safeguard and a 10-week professional lawyer training course (PLTC) as a buoyancy aid, but it does not take away from the fact that there is a steep learning curve in the first few months of articles that law school does not prepare you for. There are also few mechanisms in place to assert the quality of education that is being received through the student’s articles. Comparing law to medicine, once again, medical students unlike law students are very well prepared by the time they graduate and do their residency. Medical students get a lot of hands-on experience throughout their medical education. Starting in their first year, medical students work with cadavers and then eventually work their way up to real patients as they do their supervised clinical clerkships in their third year. It would be absurd for medical students to learn exclusively through textbooks and lectures and only see their first patient upon starting their residency, yet for some reason it is well accepted that most law students will not draft a legal document or meet with a client until they graduate and start their articles.
I would suggest that law students are not only receptive to the idea of change but that they crave it. For example, this year at TRU’s student-run conference, the conference committee is taking the initiative to host a workshop on drafting corporate commercial contracts. I acknowledge that change is not likely to occur over night, however I believe this is a conversation that needs to be had. Modernizing how law is taught is the first step in the evolution of the legal practice.
As I near the end of my three years of law school, the major point of conversation among students is the difficulty of taking that next step: completing your articles. The steps necessary seemed so simple enough 2.5 years ago when we all began. We all were accepted into law school so that clearly meant we were all smart and capable enough to go forward with this tough profession. The impression was that since we made it through the hard part of getting into a law school, the other pieces would just fall in place if we worked hard enough for it. Unfortunately for many law graduates, the reality is that after spending three years in school and accumulating thousands of dollars in debt they still will not have a position to fulfill their articling requirement. In order to alleviate this struggle, Ontario law students were given the ability to bypass the traditional articling process and complete their licensing requirement through the Law Practice Program (LPP).
What is the LPP?
Since the LPP was created in Ontario, many students and professionals in British Columbia are still unaware of what it actually is. The LPP was a three-year pilot project that began in 2012 to address the articling crisis currently being experienced in Ontario. To qualify for the LPP, an applicant must have fulfilled the qualification requirements set by the National Committee on Accreditation or have graduated from a Canadian law school. The program consists of four-months of practical training that is followed by a four-month work placement. The Law Society of Upper Canada (LSUC) stated that the curriculum will help candidates develop important skills by working on various practice areas, including civil, family, business, wills and estates, administrative, real estate and criminal law.
Is the LPP creating a “second tier” of law students?
At its outset, the LPP was established to address the current articling crisis in Ontario and alleviate the number of people struggling to find an articling position. However, in September 2016, the LSUC released a report that found that many law students and lawyers perceived the LPP as a “second-tier” option rather then a second option. However, this report was met by criticism with many arguing that the law profession is in need of change and the Law Society needs to start accepting and supporting alternate paths of satisfying the articling requirement. As a result, the Law Society chose to extend the program for two more years with the final standing on the program to be decided in the upcoming weeks. This fear of being perceived as a second-tier lawyer is always a concern when it comes to alternative paths to becoming a lawyer and is something the Law Society needs to seriously deliberate when deciding on the future of the LPP.
As this articling crisis becomes a larger issue across Canada we need to determine whether this is the direction the legal profession needs to head towards. The LPP finally offers many lawyers a second pathway in becoming a lawyer when they traditionally have had difficulty attaining articling positions. This extra flow of newly trained lawyers has the ability to increase access to justice to some of the rural areas so desperately in need of lawyers.
In my opinion, I believe there is a strong inclination that this will create a “second-tier” of lawyers rather than just giving students an alternative to articling. The fear will continue to be that all the LPP will end up creating is a class of unemployable lawyers. However, it is the Law Society’s responsibility to address these fears directly and begin embracing these alternative routes for them to be successful. There will always be those that criticize the LPP, but nevertheless, the program should be praised and commended for licensing many law graduates who can now be called to the Bar and practice law. Law Societies across Canada are keeping a close watch on the success of the LPP, as everyone continues to remain concerned about the articling crisis and the ability to provide students, who are unable to secure articling positions in the traditional way, an alternative route. It’s time the barriers to the legal profession are broken down. It is up to the Law Societies of every province to embrace these alternative routes to completing articles and to celebrate them wholeheartedly instead of caving into the potential perception of creating a second-tier of students.
The legal industry is in need of ideas for change and innovation, and I found just the person to look to.
Elon Musk is the founder of SpaceX, and the co-founder of Tesla Motors and SolarCity.
With SpaceX, his goal is to make humans a multi-planetary species. In Tesla, his vision, dubbed the ‘Master Plan,’ involves creating a fully electric car that is affordable and can be manufactured at high volumes. Using SolarCity, he plans to create low-cost sustainable energy by harnessing the power of the Sun.
“Doth mother know you weareth her drapes?”image credits: http://www.wired.com/images_blogs/underwire/2010/04/im_large_660.jpg
Before that, he was the founder of Zip2 and Paypal. The former was a software company that designed online city guides, and the latter is an electronic online payment platform.
He is the closest thing to a real life Tony Stark that lives in our time.
So how does a man who started his career in software engineering end up being at the forefront in aerospace, automotive, and solar energy? There are many things that lawyers and law students can learn from a man that is attempting to change the landscape of 3 gigantic industries.
Here I have offered 2:
First Principles Reasoning; and
Learning Transfer
First Principles Reasoning
Musk describes that one of his core philosophies that guides his method of thinking is called First Principles reasoning.
He gives an example of a battery pack in an electric car. Historically, a battery pack costs $600 per kilowatt hour. The assumption is that battery packs are expensive. As a car manufacturer, you take that assumption as an unchangeable fact and figured you will just have to integrate that cost into the price of the car.
With first principles, a person would attack that assumption. You boil the battery pack down to its fundamental principles and look at what are the material constituents of the battery, how much those materials would cost, and how much it would cost to assemble them into a battery. If you realize that it will actually only cost you $80 per kilowatt hour, you have now changed what everyone else took for as a fact.
As law students and lawyers, our challenge is to identify the assumptions built into our legal industry that we had accepted as fact over time.
For example, take the cost of legal services. In a 2015 Canadian Lawyer legal fees survey, the average hourly rate of a 10-year call was $360 per hour, and the national average cost of a 5-day trial is $56,439. The assumption is that legal services are expensive, have always been expensive, and will always be expensive.
Let’s take a first principles approach. Attack that assumption. Boil down the cost to its fundamental parts, and take a look at what components are no longer needed or can be changed.
Take a look at what Axiom Legal did. It realized that a big law firm with a large beautiful office space that is located in a prime location garners prestige, but also attracts a massive overhead. Instead, Axiom has its employees working remotely or onsite with their clients, and the result was that Axiom was able to eliminate 30 percent of a traditional firm’s overhead.
Another example is the billable hour. Lawyers have been using the billable hour to charge their clients because it is simple, familiar, and is flexible enough to account for the varying times it can take to work on a file. The assumption is that the billable hour is the best way to charge clients because no better method exists. However, the billable hour is unpredictable for clients because they do not know how much they will be billed for, and this allocates the risk to them.
Let’s look at how Hughes Amys LLP has attacked this assumption. Hughes Amys employs an alternative fee arrangement. They use a practice management software to gather data on personal injury files. They looked at the average costs for different claims, the average times it took for these claims to be resolved, and the average awards that were paid out. The firm then presents this data to the client to provide a transparent estimate of how much a flat fee for the month would cost.
What other assumptions should we tackle?
Learning transfer
Elon Musk has become a leader in many areas of industry such as space exploration, automotive and energy. He is also a leader in many areas of their technology including reusable rockets, self-driving cars, and residential solar roofs.
One of the reasons he is so competent in these different areas is because he is very proficient in Learning Transfer. Learning Transfer is a process where you transfer what you learned in one context and apply it to another.
Elon Musk is an avid reader and eager learner. According to his brother Kimbal Musk, Elon would read 2 books a day. The books he reads spans multiple disciplines and interest areas, including philosophy, religion, programming, and science fiction. He would also read the biographies of influential figures such as Benjamin Franklin, Albert Einstein, J.E. Gordon, and Howard Hughes.
Our core competencies are things like our basic legal training on the main legal subjects such as contracts, torts and property. It also includes legal skills such as critical thinking, analysis, and issue-spotting.
However, with new technology such as the artificial intelligence lawyer ‘ROSS’ that can do legal research on an entire body of law faster than what a human can achieve, including legislation, case law and secondary sources, the contemporary lawyer must possess inter-disciplinary knowledge and skills in order to stay competitive in the market.
This is where learning transfer can be useful in developing our complementary competencies. Complementary competencies are things like cost-benefit analysis, creative and constructive thinking, risk management, negotiation, communication, and value-based decision-making.
For example, one of the core competencies we develop in law school is issue-spotting. During an exam we are given a fact pattern and, drawing from the topics we’ve learned in that class, we can determine what legal issues need to be analyzed in that question.
Now let’s use learning transfer to apply that skill set to another context: negotiations. The fundamental principle in issue-spotting is being able to identify the ‘triggers’ in the fact pattern that tell you what legal rules will be engaged. You can transfer that fundamental principle to negotiations by learning to identify the key information in each negotiating party to determine how much bargaining power each party possesses.
As a student trying to become a 21st century lawyer, who better to learn from than the 21st Century Industrialist? There we go, we got a little bit of learning transfer going on right there.
Conclusion
The legal industry is notorious for being very conservative. Clients want more value for their money, and new technological advances are threatening the old ways of doing things. Elon Musk is trying to break the status quo in 3 very large industries, and we can learn a lot from him.
As law students and future lawyers, we have the controls to choose the direction our profession takes in the coming years. It’s easy for us to be resistant to change and be protective. After all, it feels personal to us because it is our livelihood. However, this is an excellent opportunity for us to be at the forefont in changing how lawyers do their jobs.
“To hell with circumstances; I create opportunities.” – Bruce Lee
If there was ever an opportune moment to quote one of my childhood heroes, this is it. Bruce Lee created a niche market for himself in the film industry by popularizing the Chinese martial art of Kung Fu. The late actor’s famous words can be interpreted as rejecting previously unchallenged assumptions and replacing them with a more desirable reality. Innovation also results from this process.
I contend that developing a comparative understanding of how people in different cultural, political, and socio-economic environments are developing new solutions to everyday problems is an effective method by which one can gain the perspective to also innovate.
Admittedly, I stumbled upon such a belief purely by accident.
After graduating from the University of Victoria in 2009, myself and other teacher-hopefuls quickly became aware that job prospects were bleak. As if my future wasn’t uncertain enough at the time, I then purchased a one-way ticket to South Korea where I would spend the next five years of my life. However, living and traveling abroad exposed me to a seemingly infinite number of instances where innovation was making life easier for people in their respective communities. Regardless of whether it involved Uber’s motorbike service in the congested streets of Jakarta or capsule hotels in Tokyo’s urban sprawl, witnessing innovation in new and previously unimagined ways stretched my imagination as to how I could challenge conventions by providing simpler and broader access to goods or services.
One example of how immersing oneself in different environments can inspire tangible change in the marketplace is Franca Ciambella, a Canadian who is currently the Managing Director at Consilium Law Corporation in Singapore. Before establishing her law firm in 2010, Mrs. Ciambella practiced law in Singapore for 20 years as well as enjoyed a wide range of international experience. Mrs. Ciambella pursued higher education in Quebec, Ontario, Virginia, New York, and, most notably, Singapore. As one of the first foreign lawyers to gain full admission to the Singapore Bar, Mrs. Ciambella further distinguished herself from other lawyers in Singapore with her ability to advise clients from several jurisdictions in both civil and common law matters. In other words, Mrs. Ciambella’s wealth of international experience contributed to her ability to drastically change the way in which legal services are provided. Clients who require legal advice for matters involving multiple jurisdictions will likely find Mrs. Ciambella’s services more expedient and likely more cost-effective.
By arming oneself with a broadened perspective and the willingness to challenge existing conventions, opportunities for ingenuity will undoubtedly become more apparent.
To start off with a story: in 1962 NASA’s Mariner 1 mission was launched. The purpose of the 80-million-dollar project (approximately 630 million in today’s currency) was to conduct a fly-by of Venus to gather information. However, the satellite never left earth; shortly after ignition, the rocket veered off course and was remotely detonated by NASA to prevent it from smashing back down on some unfortunate earthly landing site. The problem? The accidental omission of a single hyphen in the guidance system’s source coding was found to be the culprit[1]. While thankfully there were no injuries, I cannot even begin to imagine the embarrassment of the programmer.
We all know by know the basics of tort law negligence; a person is only held to the standard of the “reasonable person”, and is not expected to be super-human in ability or foresight. Yet, every one of us has departed from that standard at some point in our lives. We’ve all been negligent in some way, but it was only good fortune that nothing came of it. A person who is texting while driving and accidentally runs a stop sign is only guilty of distracted driving and running the stop sign. However, if by sheer bad luck it just so happened that there was a pedestrian crossing at that exact moment, the same person is guilty of so much more, yet both were equally negligent. Just because the only difference in the two scenarios is luck doesn’t excuse the 2nd person in tort law; bad luck is no defence for actions in negligence.
However, I see that as future technology emerges, there is a potential for a serious collision between tort law and technological advancement. While it will probably happen in several different sectors, the best and most obvious example would be that of self-driving vehicles. The established rules of the road are such that, if an accident occurs, in most cases someone will be partially at fault for deviating from the rules. Someone was speeding, or not paying attention, or didn’t check their blind spot before merging. This isn’t to say that there do not exist collisions where nobody is at fault. A deer suddenly and unexpectedly jumping onto a highway can result in massive human and property damage yet nobody can be at fault.
I would also argue that there is an inherent emotional dimension in tort law, which is heightened in vehicle accidents. Very often you have a plaintiff, wholly innocent of any wrongdoing, who has suffered a great tragedy. Death, brain damage, paralysis; if you’re ever having a bad day, a brief search of recent tort car accident cases will put your problems into a better perspective. Emotion cries out for compensation to these victims, to compensate them for the unfairness of life. While overall injury rates have consistently declined since 1994, in 2014 Canada suffered approximately 150,000 vehicle-related injuries, of which about 9,600 were “serious injuries” and 1,843 were fatal[2]. That equates to approximately 5 deaths and 26 serious injuries per day, every day. Each death was an individual.
However, as self-driving vehicles emerge, tort law may have to be tempered lest it have a systemic chilling effect on beneficial technological advancement. It is yet unknown precisely how much safer self-driving vehicles will be compared to human drivers, but there can be no doubt that as the technology advances AI-controlled vehicles will be much safer. They don’t get tired, or angry, or distracted. They are permanently vigilant and aware. However, there also can be no doubt that accidents will continue to occur. Coding the artificial intelligence that drives these vehicles is enormously complex, and there will be coding errors. It isn’t a question of if, but of when. Most likely there is someone alive today, going about their daily routine, totally unaware that they will one day claim the title of being the first human killed due to a self-driving vehicle coding error.
I would image the inevitable lawsuit to go something like this; the next of kin will hire a specialist to review the computer error. The error will be traced to a chunk of source coding that caused the problem. It could be the accidental omission of a single hyphen, such as in the Mariner 1 accident, but I would imagine that much more likely scenario would be a very particular set of variables causing the AI to generate an unexpected and unintended reaction.
The problem, as I see it, would be the danger of a judge viewing the source coding error in isolation, deferring to the expert, who will no doubt say that it was an obvious overlooked error. If only the production company had run more simulations, or had hired more people to review the coding, then our poor victim would be alive. The coding was negligent; the designer must pay out millions for their error.
The chilling effect here comes from the fact that only a very few entities have the resources to create this technology, so naturally there will probably be only a few different systems. Even if a single AI program is responsible for decreasing overall deaths by say 90%, that still means that 10% of the deaths will continue to happen. By Canada’s 2014 statistics, that would mean about 184 deaths would still have occurred, and no doubt at least some of those deaths would be created wholly or in part by imperfect coding. So, while overall vehicle related fatalities may drop dramatically, which everyone would agree would be a universal good, the few remaining fatalities could result in huge lawsuits against a single AI programmer. Even if the accident was primarily caused by a human, such as a negligent jay-walker stepping in front of a self-driving vehicle that swerves and crashes into the vehicle next to it, there will be a natural gravity towards including the AI developer as a defendant if only because they are the only potential defendant who has deep enough pockets to properly compensate the victim.
However, I am not arguing for a blanket protection of these companies against negligent programming, or that the general tort principles ought to be altered. My argument is confined to the method in which judges should assess negligence in source coding. A single chunk of coding, viewed in total isolation, can look like negligence. With 20/20 hindsight, it can be obvious how a very particular set of variables can cause a program to crash or react in an unintended manner, but this only becomes obvious after the crash has occurred.
I think there is a tendency to expect that computers ought to be flawless. Considering their vast ability for calculation, and their adherence only to pure logic, it follows that it is not unreasonable to expect perfection. If you need any further convincing on this point, just think of the last time you got frustrated with your computer. Never mind the fact that we rarely (if ever) stop and consider just how magical computers are, and how much easier and richer they make our lives. Instead of being gracious 99% of the time when they do work properly, and then forgiving the 1% of time they don’t, in actuality we act indifferent during the 99% of the time they work properly, and become angry and upset at the 1% of times that they don’t.
Nobody intends to write bad coding, but it just happens. A system that has hundreds of thousands of lines of flawless coding can be brought down by the omission of a single hyphen. The overall point of this blog is that I am afraid there will develop a standard of the “reasonable robot,” where society unjustly demands perfection. But it must be remembered that for each robot, for each governing program, behind it all is a human programmer. Just like how a reasonable person in tort need not have the “wisdom of Solomon[3]” to avoid liability, this standard should also apply to the reasonable programmer.
A flawed piece of source coding should never be viewed in isolation. When dealing with the inevitable negligent programming cases to come, defective coding should be viewed in the context of the overall program and the risk management methods employed during development. Errors are inevitable, and it is simply not possible to demand a flawless program. Another source of danger I see here is the unfortunate influence emotion has on tort cases. Most likely, the first future negligent programming cases will have wholly innocent plaintiff, either killed or very seriously (and permanently) injured, suing a mammoth and well-insured corporation. These initial cases will bring with them a strong emotional plea for the victim to be compensated, especially in the face of a single line of code that contains an obvious error.
The temptation will be to point to the error and say “guilty”, if for the very least so the victim can at least be compensated for all that has been taken from them. But in doing so it would set a precedent of demanding robotic perfection, which completely forgets that robots are programmed by humans, and tort law doesn’t expect any humans, even highly skilled professionals, to be flawless. The question is if the flaw was truly the product of negligence, and the focus of that inquiry should take the judge away from the single error and onto the procedures in place that allowed it to occur. Even a massive flaw can still be not the product of negligence if the AI developer placed reasonable safeguards against such an occurrence.
However, accepting what I said above means accepting that it is possible for a coding error to produce death or serious injury, but in disallowing compensation in tort. I hope I’m not going to be one of those future victims. But we must keep in mind that, currently, we are risking death or serious injury every time we go anywhere near a road. That appears to have become an accepted part of our lives. As robots come to take a more active role in our lives, we must not let their artificial nature distract us from the fact that behind it all are human engineers, who, as discussed above, are not held to a standard of perfection.
That being said, I still think the standard ought to be high. The serious risk of injury or death in AI programming demands nothing less, and if an AI developer produces a flawed product due to inadequate testing, or by unreasonably rushing the product to market, then I have no objection to injured victims getting their just compensation, even if it means bankrupting the developer. But we must resist the temptation to demand perfection. Perhaps it will come one day, but with the emergence of any new and untested technology there has always been teething problems in early development stages that only become obvious with hindsight. If we are going to get past that stage and onwards to the land of perfection, we are going to have to tolerate some amount of tragedy in the short term.
When we think of innovation we think of new ideas, new devices, and sometimes a new method of doing things. Innovation, however, is much broader. Meeting the demands of new requirements in any setting requires better solutions to target existing and future needs. This, in essence, requires more effective products or services. We can thus define the term “innovation” as something original and more effective and, as a consequence, that breaks into the market or society.
When we talk about innovation within the legal sphere, it is hard not to draw your mind to intellectual property law. Intellectual property consists of intangible rights which are part of a larger bundle of rights. Here, property rights attach to the inventive and innovative creations of the mind (ideas which are products of intellectual property). Intellectual property law seeks to protect these creations of the mind through patent, copyright and trade-mark protection.
Often, intellectual property can be an organization’s most valuable asset and thus it has created the need for lawyers with specialized backgrounds in intellectual property law, to help protect the intellectual capital of businesses, authors, inventors, musicians and other owners of creative works. With this in mind, it’s no secret that there will always be a demand for intellectual property lawyers. Inventive and innovative minds have always existed and will continue to exist. This means that intellectual property lawyers will always be needed to obtain the rights to new ideas and to protect the ownership of existing creations. More recently however, the creation of the internet leaves creators vulnerable to a plethora of intellectual property crimes. This has certainly lead to an increased need for informed intellectual property lawyers.
So why do some JD candidates fear this area of law? What scares most of my classmates away from intellectual property law seems to be this stereotype that you need to have a science or engineering background. However, intellectual property lawyers are not just hired by artists and scientists – they are hired by businesses, authors, inventors, musicians and other owners of creative works. Often times this work transcends international borders which truly gives you a scope for how important this field of law is.
The digital age has reformulated the way we approach intellectual property law. What excites me the most is that the laws around intellectual property continue to be defined which means that our generation of lawyers may be able to effect change in the field. This was exemplified in cases such as British Columbia Automobile Assn et al. v. Office and Professional Employees’ International Union, Local 378 et al where an entire website was held to constitute the tort of passing off (something not seen before). Furthermore, cases such as Harvard College v. Canada have attempted to expand the range of patentable subject matters. If the Court was to ever redefine their stance on the patenting of higher life forms, this could reinvent the way we approach patent law. Additionally, although the recent negotiation of the Trans-Pacific Partnership Agreement (and the Intellectual Property Rights Chapter more specifically) have seemingly been the topic of much controversy, the attention that the negotiations gave to intellectual property has demonstrated that intellectual property law is a prominent matter at the forefront of the global community. Thus nevertheless, it is still an exciting time to be involved with intellectual property law.
To conclude, as an intellectual property lawyer you will commonly be examining and considering creative ideas. You will likely be dealing with something new and sometimes, something that has never been seen before. You may be tasked with effecting a new or unsettled area of the law with regards to intellectual property laws in Canada. The point is that working in an area that is conducive to change and innovation puts you in a perpetual state of legal evolution. As you evolve and develop, so too do your clients and the work they bring forth. There is no stagnation because stagnation does not open us to new realities. There is the opposite of stagnation; what some may call a boom or a rise. How can one get bored at work when the very essence of intellectual property is to excite through the implementation of the brand-new? This area of law excites me and I have made up my mind that I need to be a part of its creative domain. Overall, I acknowledge that everyone is drawn to an area of law at some point in their legal schooling or legal career. I echo the sentiments that if you have not yet decided what area you may want to practice in, maybe the creative and legal realm of intellectual property is right for you. As I mentioned before, one thing is for certain: as long as invention and innovation exist, the field of intellectual property will remain fruitful and reliable for lawyers.
