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Computer Forensics to Cloud Computing: 10 Years of Tech Crime at OsgoodePD

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The 10th annual National Symposium on Tech Crime and Electronic Evidence was held this year, January 27, 2017. I was one of the National Co-Chairs along with Susheel Gupta and Scott Fenton. This program would not take place without the lawyers, investigators, and judges who volunteered their time both in 2017 and the years past. On behalf of Susheel and Scott, I thank all of them for the time they have taken for this matter. In this blog post I want to address some of this history of this program and why, 10 years on, it still holds the universal interest of lawyers, judges and investigators.

History? 10 years? The common law is 800 years old. 10 years isn’t history you say, and normally I would agree. With the exception of the printing press, the firearm, and the end of trial by battle in 1446, there have been few advances which have transformed how crime is committed, investigated and tried as much as the digitization of crime.

Some perspective may be helpful. 10 years ago a cloud was something in the sky. 10 years ago a cell phone was in fact a cell phone. 10 years ago, the first generation of iPhones had only just been publicly announced. The most popular cell phones were Motorola and Nokia – Samsung still made VCR’s. “Cutting edge” phones were starting to integrate small cameras and run MP3 files. Phones were not considered smart, and encryption was for the Enigma machine and spies.

At this year’s Symposium on Tech Crime and Electronic Evidence, panels discussed the issues and challenges surrounding cloud computing, encryption and social media. The keynote speaker, Alan Butler from the Electronic Privacy Information Center in Washington, D.C., spoke to the issues that arise when police deploy advanced surveillance techniques such as IMSI catchers and persistent surveillance without social licence.

The challenges of search and seizure related to the law of digital devices continue to evolve concurrently. As our search and seizure panel discussed, there are two important upcoming cases on these issues to be heard by the Supreme Court of Canada; Jones and Marakah.

A number of panels also addressed issues related to solicitor-client privilege and digital device storage. While there was little debate about the search of a lawyer’s computer in an office, there does appear to be a number of challenges raised with respect to the process of searching devices where solicitor-client issues may not be immediately obvious.

A look back at the 2006 Symposium on Tech Crime shows proposed discussions about what defines cybercrime, computer forensics 101, search and seizure, the peculiarities of e-disclosure, the use of the expert and sentencing. Since then, the delineation between cyber and other crimes has blurred. Digital evidence is important in investigations; to assess victim credibility, and to implicate the accused. Today, a serious case without digital evidence is extremely rare.

The convergence of technology – phones becoming computers and data transfers accessed by these computers – continually transforms what people consider “private”. In 2006, few were worried about the specific implications of search incident to arrest and data. After all, very few people carried around their life in a phone. Search and seizure cases with respect to electronic evidence are now some of the most important cases to come from the Supreme Court. E-disclosure is becoming the standard for disclosure. Computer forensics now involves “chip-off” extraction and methods for breaking encryption. Some of what was considered “expert” knowledge 10 years ago is taught in junior high, if not earlier.

Investigators, lawyers and Judges all need to keep up to speed with these changes in technology, forensics and criminal law. OsgoodePD’s National Symposium on Tech Crime is the one program in Canada where all of parties involved can come together annually and discuss the current impacts of technology in criminal law.

Predicting the future is a fool’s game. Some say WATSON will replace lawyers. Assuming, for argument’s sake, that this does not happen, there is little doubt that technology will continue to transform our society including the criminal justice system. If cars are self-driving who needs impaired driving laws? How the criminal justice system adapts to that change will be important to how society adapts to technology. An informed profession makes it more likely that change will happen in an informed manner.

If you missed the 10th National Symposium on Tech Crim and Electronic evidence, the program will be available as an Online Replay on February 24, 2017, from 9am to 4:30pm.


STEVEN JOHNSTON is a Crown Attorney with Alberta Justice Specialized Prosecutions Branch. He graduated from the University of Manitoba in 1995, was called to the Bar in Manitoba in 1996. Steven joined Alberta Justice in 2010 and was called to the Alberta Bar in 2010. He is one of the national co-chairs of OsgoodePD’s National Symposium on Tech Crime and Electronic Evidence for the past 9 years. Steven prosecutes large economic and organized crime cases.


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Settlement vs. Adversarial Advocacy: 10 Tips for Effective Advocacy

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In family law, the name of the game for the modern advocate is settlement; whether one is practicing within the litigation context (adversarial advocacy) or in an out of court dispute resolution process (settlement advocacy).

The adversarial advocate in the litigation system bolsters their client’s legal case as much as possible and is strategic in the presentation of that case. The adversarial advocate negotiates within the framework of leverage, positions and legal entitlements. Canada’s litigation system has become case managed and settlement oriented. This shift has split the role of the litigation lawyer into a dual role of ‘preparing for war’ while trying to ‘negotiate a settlement’. This can create tension if the lawyer focuses more on adversarial advocacy and winning the ‘war’ and the ‘battles’ along the way. The likelihood of a settlement is reduced as conflict is further entrenched; lessening any opportunity for a real dialogue or exchange of interests.

On the other hand, if a lawyer in the adversarial court system focuses too much on settlement advocacy and not enough on winning the ‘war’ or the ‘battles’ along the way, they risk missing an opportunity to strengthen the clients’ position for maximum substantive outcome. Furthermore, there is the possibility that clients will be prejudiced by inadequate interim arrangements if the lawyer does not immediately address prejudicial temporary arrangements through a motion.

In out of court processes, lawyers have a more singular role, which is to support their clients in achieving a settlement. The settlement advocate negotiates in the context of interests, mutual gain and legal rights and responsibilities. Settlement advocates work on bolstering their client’s legal case; not to persuade a judge, but to create more to work within the negotiations. These advocates work on understanding their client’s goals and concerns paying attention to process, substantive, relational and psychological interests. Settlement advocates also work on learning the interests of the spouse to analyze where the possible ‘win-wins’ might be.

When a lawyer shows up as an adversarial advocate in a settlement process, they risk unnecessarily increasing the level of conflict and jeopardizing any important relationships that are important to their client. Settlements reached (if any!) will not satisfy important non-financial and non-legal interests.

Whether one is practicing as an adversarial advocate in the court system or a settlement advocate in a collaborative practice, mediation or negotiation file, here are 10 tips and tools for effective advocacy:

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If settlement, mediations and advocacy is of interest to you, OsgoodePD has upcoming programs Successful Settlements 2017: Strategies and Tactics for Civil Litigators and Successful Advocacy in Tort and Personal Injury Mediations in March.


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DEBORAH GRAHAM, B.A. Hons, LL.B., Acc.FM (OAFM), is devoted to settlement work. She teaches introductory and advanced courses in Collaborative Practice and Mediation and has led workshops at the annual conferences of the IACP, the AFCC, the OAFM and the OCLF. Deborah has recently launched The Settlement Clinic to help professionals grow their settlement practices and do better work. You can follow Deborah on Twitter or check out more of her tips at The Settlement Clinic Blog.


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Disruption in Legal Services Delivery: Three Takeaways for Students and New Lawyers

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Earlier this month, I had the pleasure of attending the Disruption in Legal Services Delivery: What Students and New Lawyers Need to Know program held by Osgoode Professional Development and Queen’s Faculty of Law. The evening provided JD students, articling students and new associates with fresh perspectives, insights and tips on current trends in the legal profession through four informative discussion panels. Each panel included a selection of legal professionals working in a wide variety of roles, who shared their unique experiences and valuable advice on the future of the legal industry.
My three takeaways of the evening were:

Takeaway #1: Embrace Networking

There are no real surprises here; many legal professionals in training have long understood networking to be part of the job. However, as the profession moves towards smaller specialized firms, boutiques, and sole practitioners—a trend noted by many panelists—knowing who knows the answer will be as important as knowing the answer itself.

As incoming legal professionals, we will benefit greatly from building relationships and networks as soon as possible. Fortunately, most of us have already started; we’ve built relationships at law school, now we need to work at maintaining those relationships and developing new ones throughout our careers.

Application: Make time for lunch with colleagues at other firms and keep your thumb on the pulse of both legal and non-legal networking events. And learn to use social media! Social media is a great tool to help enable your networks. The effort you put into building your network now will prove invaluable in the future.

Takeaway #2: Embrace Project Management

A theme that ran through most—if not all—of the panels was the idea that as incoming lawyers, we need to assume a more “hands-on” role in file management. Clients are demanding efficient solutions at lower prices, and the legal profession has to adjust to this change.

Application: Embracing project management doesn’t mean that you have to know all the ins and outs of a file’s budget; simply ask about the budget and how you can help stay within its parameters is a great start. If you’re currently studying, take the time to develop your project management practices. If you’re currently practicing; consider programs related to project management to fulfill continuing legal education requirements.

Takeaway #3: Embrace Client Service

Students and new associates need to learn the client aspect of the legal profession. We spend our time in school learning how to read judgments, apply jurisprudence to exam problems and write papers. However, these skills don’t adequately teach us how to interact with the clients to whom we owe a fiduciary duty.

Newcomers to the legal profession need to learn to effectively and thoughtfully interact with clients. More and more, clients want to know where their money is going and how their file is progressing. We have to be able to understand clients’ needs while communicating the law, possible risks and the client’s options or potential outcomes.

Application: Similar to project management, no one is saying that law students or junior associates must or should strive to take over client communications. But we should take an interest in working with clients early so we can develop those skills.

All in all, as a law student, Disruption in Legal Services Delivery was interesting, exciting, and encouraging. I had some reservations going in; would the future legal landscape be all doom and gloom? But as the panels progressed, I kept thinking, “I’ve done that!” or “I know how to do that!” There are countless opportunities to develop; we just have to learn what they are and where to look for these opportunities.

Head to OsgoodePD’s website for complimentary on-demand access to the Disruption in Legal Services Delivery: What Students and New Lawyers Need to Know program archive.


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ERIN GARBETT, Editor-in-Chief, Obiter Dicta.
Erin is currently finishing her JD at Osgoode Hall Law School and has a passion for environmental law. Before Osgoode, she completed a degree in environmental science and worked for the City of Guelph Water Services, Fisheries and Oceans Canada and the University of Guelph Geography Department. After completing her degree this spring, she will be articling at Willms & Shier Environmental Lawyers LLP.


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Top Takeaways: Critical and Emerging Issues in Blockchain Law

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Blockchain technology is no longer the next big thing, it is already here.
While blockchain developers have been creating cryptocurrencies, smart contracts and enhancing transparency, the law is only just starting to catch up and understand the technology’s implications in financial and tech industries.

In a first for OsgoodePD, and among the first for the Canadian legal industry, the Critical and Emerging Issues in Blockchain Law program (held March 20, 2017) provided delegates a deeper understanding of the emerging issues in this intersecting area of the law. Here are some of the day’s key takeaways:

Takeaway: Opportunities for collateral-free futures and contagion risks.
The first three panelists of the day started the program with three very different angles on the role of blockchain in the settlement system

> Anne Butler (Vice President, Payments Canada) discussed the top-down approach of blockchain experiment Project Jasper (run jointly by the Bank of Canada, Payments Canada, banking consortium R3 (R3CEV LLC), and several Canadian banks). Project Jasper aims to determine how the Large Value Transfer System (LVTS) could be transitioned to a blockchain system.

> Ana Badour (partner, McCarthy Tetrault) detailed Canadian payments regulation through an examination of potential impacts to regulated entities, and a review of the international principles for payments systems. Ms. Badour did warn that with the integration of blockchain technologies, financial systems greaten their susceptibility to contagion risk if institutions fail to take proper measures for prevention.

> Bitcoin core developer and consultant Peter Todd discussed how the engagement of blockchain in the settlement system provides opportunities for a collateral-free future. Mr Todd highlighted that the use case for blockchain lies in risk reduction: there must be (legitimate) trust in the system, along with effective auditing mechanisms.

Takeaway: A Descriptive vs. Prescriptive approach to Initial Coin Offerings
Initial Coin Offerings (ICOs) provide an innovative mechanism for companies to raise money by selling new cryptocurrency into the blockchain. ICOs have become a popular method of funding/raising awareness about early stage companies in the blockchain space. In addition, the basics of securities law form an effective starting point for analyzing the substance (rather than the form of issuance) of ICOs.

> Currently, many ICOs are in danger of falling afoul of securities laws. Panelists Kathleen Ritchie (partner, Gowling WLG, Canada, LLP) & Marco Santori
(partner, Cooley LLP) pointed out that there has been no case law on ICOs in either Canada or the United States. This provides a bright line test to determine when ICOs may require greater disclosure. However, they did identify the mandate of regulators to protect the public.

> There have been developments in US corporate law with the establishment of the Delaware Blockchain Initiative (Mr. Santori is the Legal Ambassador for the Delaware Blockchain Initiative), that aim to enable and encourage expanded use of blockchains for share registries.

Takeaway: Smart Contracts are a significant growth area
Smart Contracts are a topic that many people talk about but few understand. Smart contracts help parties exchange money, shares or their item of value with blockchain technology.

> Technologist & former lawyer Josh Stark reminded us that we need to look back at the history of smart contracts & the innovations credited to Nick Szabo before we breakdown the systems being deployed today.

> Mat Cybula (CEO, Cryptiv) highlighted the comparisons between today’s smart contract/blockchain developments (with systems like Golem, MelonPort and Augur) to the early days of the Internet: the base structure and infrastructure are there, but there is still much development to be actioned particularly when it comes to exchanges and smart contracts.

> Commercial litigator, Pulat Yunusov provided a litigator’s perspective; lawyers, regulators and business owners need to keep in mind the differing and sometimes clashing viewpoints of technology people (programmers, entrepreneurs) and legal people (regulators, judges, etc.).

> Mr Yunusov also reminded delegates that the legal system is not necessary for smart contracts to thrive; market products will arise that will mitigate risk technologically – eliminating the need to involve lawyers.

Takeaway: “…the challenge lies in bridging the real and digital worlds”
> Bitcoin/blockchain lawyer, Addison Cameron-Huff, detailed the importance of analyzing transactions carefully to understand the legal implications of diverse blockchain business models. For insurance, compensation funds and contracts in particular, the challenge currently lies in bridging the real and digital worlds. In the immediate future, there will be specific laws that lawyers continually encounter when advising or dealing with blockchain.

> In the financial industry, there is an emerging and important need for regulators and technologists to cooperate and work together. In his ground-level summary of what’s happening in the financial industry, Soumak Chatterjee (Deloitte Canada) identified that innovation without regulator support is nothing more than a “science experiment.”

It is an exciting and innovating time for lawyers and professionals who work across blockchain. Flexibility in approach and keeping informed on and abreast of current trends will prove the vital for working effectively with this constantly evolving area of law.

Missed the program? Head to OsgoodePD’s website to purchase the Critical and Emerging Issues in Blockchain Law program On Demand.

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ITAW: Are you ready to cross the line?

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There is an invisible line in litigation.
As a lawyer, there is a moment when you stand up from the counsel table, turn to the judge or jury and start your opening statement. You’ve crossed the invisible line; it’s your first trial.

Many litigators come to their first trial with little formal training on how to conduct the critical elements of a trial. Osgoode’s Intensive Trial Advocacy Workshop (ITAW) gives novice and experienced litigators alike the chance to learn from some of the best litigators in the industry in a controlled environment. It is like having your first trial without even getting your robes out.

While there is a lecture component, the majority of the time at ITAW is spent actually conducting openings, direct examinations, cross examinations and closings. Each of these is videotaped, and students receive direct feedback from their instructors and from guest litigators.

But wait; there is more.

The final day of the course is a mock trial in front of a real judge and a volunteer jury. At the end of the trial, both the judge and jury provide feedback to the litigators. In a real trial, the jury is prevented by law from speaking about the case, and you will never receive this kind of feedback from a judge.

There are three sets of lawyers who will benefit from ITAW.
First: seasoned lawyers looking to hone their craft can try new approaches and re-affirm their first principles for oral advocacy. Ours is a trade with only one objective measure on our skills; winning at trial. Anything that can help you present your client’s case more effectively is time and money well spent.

Second: lawyers with no trial experience can gain the experience they need without the risks and consequences associated with the court room. Before I was a lawyer, I was an Army Officer. When I was training my soldiers, my goal was to give them the experience of battle before they found themselves in one. It dramatically raised their chances of success. The idea of taking a case to trial can be very daunting for someone with no trial experience. ITAW takes you a step closer to becoming a battle-hardened litigator.

Third: articling students, young lawyers and aspiring lawyers can volunteer to sit on the jury panel for the mock trial. As a lawyer, you will never get the chance to see a trial from the other side of the jury box, and at ITAW you will see a complete trial in 4 hours. Sitting at the counsel table, you have gone over your case with a fine toothed comb, and you know every fact; you probably know your opponent’s case as well as they do. You will get a new appreciation for what works and what doesn’t work in the courtroom when you know nothing about the case, and a lawyer is trying to persuade you of their cause.

I attended ITAW after already running multiple arbitrations, and having conducted trials for the Ministry of Transportation, but with no Superior Court trial work. Although I had already presented cases for clients, I found the techniques taught during that week to be invaluable. ITAW also provided an opportunity to speak to litigators from different areas of law and gain new perspective on the problems I face in my practice. I changed the way I approached some aspects of trial work, and I confirmed my approach to others. It was a memorable week and I even made a few new friends and contacts.

I can’t recommend Osgoode’s Intensive Trial Advocacy Workshop enough. From veteran litigator to newly called lawyers, ITAW is an experience that can’t be found outside of a real trial. When the moment comes to cross that line, you will be in the best position to do your clients justice.

Ready to cross the line?
OsgoodePD’s 38th Annual Intensive Trial Advocacy Workshop (ITAW) is taking place in Downtown Toronto at the Chelsea Hotel, July 9 – 15, 2017.
Sign up today for this one of a kind learning experience!


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TOM HUGHES’ practice concentrates on insurance defence, including tort, accident benefits and disputes between insurers. Tom has appeared before the Financial Services Commission of Ontario, the Ontario Superior Court of Justice, the Ontario Court of Justice, the Ontario Provincial Offences Court, and Small Claims Court.
Tom earned his J.D. from Osgoode Hall Law School and was called to the bar in 2009. Prior to law school, Tom was an army officer with deployments in Bosnia and Afghanistan in combat roles and is a recipient of the Canadian Forces Decoration, the South West Asia Campaign Star, The NATO Medal and the Canadian Peacekeeping Service Medal.


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How Improvisation Can Help Your Legal Practice

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I’m going to be leading an upcoming course on Improvisation for Legal Professionals, and a common question I am asked is “why improv for legal professionals?” How is improv relevant, especially when preparation is such a key focus of the legal profession?

Today’s professional culture is marked by a need to stand out, to be distinct, and to demonstrate confidence and capability. It’s also marked by constant change; where flexibility and adaptability are increasingly important skills. But all this change can be hard to adapt to – it challenges the norms of comfort, control, safety and security. As a lawyer, you’re trained to think, focus and prepare. But what happens when you’re in a situation where you’re thrown a curveball, and your preparation can’t help you. What do you do? How do you react?

This is where improvisation comes into play. It introduces elements of active listening and flexibility in dealing with change that will help you deal with the unexpected, and provide you with the expertise to differentiate yourself from the next person. Improvisation is all about risk and dealing with the unexpected head-on; improv requires that we get comfortable with being uncomfortable. Being a risk taker in improv terms means getting out of the “box”, stepping out of your comfort zone and reaping the rewards of having taken that chance.

The experiential learning of improvisation can have a powerful impact on professionals. Improvisation techniques change communication dynamics one conversation at a time. These techniques teach professionals how to actively listen and respond to new information. The improviser is no longer concerned with finding the ‘right’ or ‘good’ answer, rather, they become more responsive to changing circumstances and concerned with finding solutions to overcome obstacles. This gives the improviser an edge; they stand out from the crowd and are seen as better communicators, relationship builders and collaborators.

Learning the tenets of the art of improvisation has helped thousands of professionals distinguish themselves from the crowd and become the innovators they’ve long desired to be. What surprises professional clients most about improvisation is that it has nothing to do with acting. Practicing the art of improvisation requires you to be “in the moment”, to actively listen to new information and to adapt your approach accordingly.

Improv sounds simple however many professionals do find it challenging. In improv, taking the chance by stepping out of your comfort zone, actively listening and dealing with the unexpected puts you in the advantage and helps you gain trust.

Improvisation is my skydiving. Nothing is more risky than stepping in front of a crowd with absolutely nothing pre-planned and pulling the chute. And I wouldn’t have it any other way.

Lisa Merchant will be leading OsgoodePD’s Improv(ed) Legal Skills: Improvisation for Legal Professionals workshops, November 1, 2017.


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LISA MERCHANT is a highly sought after improvisation instructor/facilitator/performer. She has been studying, performing and teaching the art of improvisation for 30 years. Lisa is a Senior Faculty member at The Second City Training Centre and is a corporate facilitator with The Second City Works division, Bad Dog Theatre and privately. Lisa is a multiple nominee and winner of numerous Canadian Comedy Awards for Best Female Improvisor as well as Best Ensemble.


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INFOGRAPHIC: What Salutation Should You Use?

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Ken Adams, a leading authority on contract language, is back in Toronto for the eleventh year to teach the Drafting Clearer Contracts series – a set of comprehensive, hands-on contract drafting courses exclusive, in Canada, to OsgoodePD.

This year’s installment will also be the first seminar in North America to feature Ken Adams’ 4th edition of A Manual of Style for Contract Drafting (MSCD). One of the American Bar Association’s best-sellers, the MSCD has become a valued resource to the legal profession as it provides an in-depth survey of the building blocks of contract language.

In “Chapter 19: Letter Agreements” of A Manual of Style for Contract Drafting, Ken discusses the usage of salutations in letter agreements addressed to a company vs. agreements addressed to an individual of that company.

Traditionally, ‘Dear Sirs’ & ‘To whom it may concern’ were acceptable, even preferred salutations. However, this is no longer the case. The following infographic explains alternatives for addressing entire organizations in letter agreements.

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Contract Drafting with Ken Adams is offered in a variety of formats; attend the introductory Drafting Clearer Contracts (October 23) course and Advanced Workshop (October 24) in person. Alternatively, the introductory course is also available online as a five-part webinar series starting November 16, 2017.


Editor’s Note: The original post titled “What Salutation Should You Use in a Letter Agreement Sent to a Company?” was published on August 3, 2017 by Ken Adams. It can be found here.


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KENNETH A. ADAMS is a leading authority on contract language. According to The Lawyers Weekly, “In the world of contract drafting, Ken Adams is the guru.” Ken’s book,
A Manual of Style for Contract Drafting is one of the ABA’s best-selling titles and has become an essential resource for contact drafters. He gives public and in-house seminars in the US, Canada and internationally. Ken also frequently acts as a consultant and expert witness.


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The T-shaped lawyer: successful skills and abilities of current and future lawyers

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Technology has had a fundamental effect on most professions. It has standardized and simplified processes, removed labour intensive elements, and increased efficiency of how products and services are developed and sold. Most importantly, it has made it necessary for those in the profession to adapt and change who does the work, what the work is, and how the work is done.

Law and the practice of law has, in many ways, remained relatively untouched. That is until now!

Yes, computers and email have transformed how lawyers communicate and do their work, but today lawyers are facing fundamental challenges with regard to their monopoly from alternate service providers, offshoring and, yes, technology. New tools are being developed and are emerging at tremendous speeds, forcing lawyers to adapt or sadly, become replaced.

Some elements that used to be in the domain of lawyers, such as e-discovery and even basic legal research, are increasingly becoming remnants of a past era. The work that used to occupy the days and evenings of junior lawyers and articling students has mostly disappeared.

Lawyers 2.0
To have a successful career in the legal field, new lawyers need to develop new skills, abilities and mindsets. These are the fundamental elements of today’s 2.0 lawyers; the “T-shaped” , “positive-value” or “+” shaped lawyers.

“T Shaped” lawyers continue to possess a thorough understanding of the law and all that traditionally goes with being a lawyer, but they also need to possess other skills and abilities. These skills and abilities include a facility to use and apply technology, to implement, apply and use fundamental elements of project management (finance, HR, etc.) as well as possess interpersonal skills that will add value to these newly provided services.

The threat to “traditional lawyers”
Many long-standing lawyers with a strong book of business feel that they are protected and isolated from having to change their practice. Until now, these “traditional lawyers” sold their services in a steady environment; where their services were provided within a monopoly market, with little competition, while charging an hourly rate that encouraged inefficiencies.

Many “traditional lawyers” proudly state to anyone that asked, and even those who did not, that they went into law because they were terrible in math. Finally, some “traditional lawyers” still refuse to type out their own letters, preferring instead to dictate letters which would then be typed by assistants that required further review and modifications, before receiving the seal of approval. This practice was again possible with little-to-no competition for their services and within a system that encouraged and compensated inefficiency.

Today, those who are using the services of a lawyer are demanding more. Clients are demanding lawyers who are able to use technology to provide efficient and cost-effective services. They are demanding lawyers that understand business and the business environment within which the clients operate. Clients are demanding lawyers with strong interpersonal skills, who are able to work within diverse teams and able to project manage their own files.

Unless they are able to change to meet the needs of their new market, “traditional lawyers” will soon become fish out of water; quickly losing influence, clients and their book of business. Traditional lawyers and law firms will neglect these changes and the need to adapt at their own peril.

Essential skills for lawyers
It is difficult to identify one skill that is essential for all lawyers. As noted, there are many elements and skills that new lawyers must possess in order to be successful. As lawyers, we cannot ignore the need for technological, financial, project management and interpersonal skills.

That being said, if there is one common element in all of these skills it is the ability to understand and adapt to constant change. One just needs to look at Moore’s law, which theorizes that “computer processing speed doubles every 18 months”, to understand the pace at which change is happening. This is just one example of how and why adaptability is, and will remain, an essential skill for lawyers and most, if not all, professionals.

Lawyers in the future
A successful lawyer in 2025 will be one who has been able to stay ahead of technological developments and seeks to continuously improve the services they provide clients. A successful lawyer, both now and in the future, will have a broad level of knowledge and understanding of other practices and tools required to meet the changing needs of their clients at both the current time and in the years thereafter.

Fernando Garcia will be featured in the upcoming webinar The 21st Century T-Shaped Lawyer: What is it? Why is it Relevant to Success?, part of the Practice Management Webinar Series III: The 21st Century Lawyer – Practicing in a Time of Change, starting November 17, 2017.


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FERNANDO GARCIA is general counsel for Nissan Canada, Inc. His duties include providing strategic and legal advice on Canada-wide dealer operations, labour relations and employment law, government affairs and all general legal matters. Mr. Garcia holds an MIR from the University of Toronto and LLB/BCL from McGill and recently completed an MBA at Wilfrid Laurier University.

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Strictly Legal: an OsgoodePD podcast about all things legal

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Today we launch Strictly Legal, an Osgoode Professional Development podcast about all things legal. Each episode, OsgoodePD will unpack current, hot topic issues with the help of some of the industry’s leading thinkers.

At OsgoodePD, we are committed to our role as the leading Canadian facilitator of lifelong, legal learning. As part of that commitment, we aim to keep our community of lawyers and legal professionals up to date on the fast-moving and continuously evolving Canadian legal landscape.

Strictly Legal helps broaden the conversation in the current legal climate and provide a balance of perspectives on emerging issues. We talk with thought leaders and industry experts, discussing the legal ramifications of current issues and examine the possible effects current events will have on law in Canada today and in the future.

Episode 1 of Strictly Legal looks at Initial Coin Offerings (ICOs) – what are they and why have China banned them? Host and resident blockchain expert, OsgoodePD Program lawyer Amy ter Haar, unpacks this legal cryptocurrency maze with the help of legal experts Lee Schneider and Erik Syvertsen.

Head to our podcast page to download or stream the latest edition of Strictly Legal and keep up to date on hot topic legal issues with some of the leading minds in the industry.

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The Changing Practice of Law: Lessons for New Lawyers

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Any new lawyer is aware that the practice of law in Canada is not the same as it used to be. However, it is not until the newly minted lawyers finish their articling terms and are looking for full-time employment, that they realize the extent of change in the legal world. Newly called lawyers and law students will need to understand how the practice of law is changing, understand the dimensions of such change, and hopefully, equip themselves with materials to navigate through the change.

How is the practice of law changing?

The practice of law is changing in a variety of ways. From the perspective of new lawyers, the most important change is the decrease in the number of traditional job opportunities at big law firms. The primary reason: businesses and individuals are becoming increasingly price conscious, and are demanding leaner firm structures. Law firms are therefore becoming more efficient, cutting costs and outsourcing a significant amount of legal and non-legal work. Similarly, technological innovation means that much legal work is processed by computers, and less lawyers are required to supervise and counter check the work. Finally, businesses and individuals are becoming increasingly knowledgeable, and are willing to attempt legal work themselves.

How does this impact new lawyers?

These changes to the practice of law have major consequences for new lawyers; there are less traditional opportunities in larger law firms, and new lawyers will need to look for alternate paths to achieving a successful legal practice. Also, as a result of enhanced cost cutting, established law firms do not have the capacity to train new lawyers and invest as much time in their development as they have previously. This results in new lawyers facing a lack of jobs, with a lack of experience, and a situation where they neither have jobs nor are they fully trained to go out and “hang their shingle” as sole practitioners.

What can new lawyers expect?

The nature of jobs available to new lawyers has changed tremendously. While some lawyers will continue to find traditional permanent positions at larger law firms, a growing number of new lawyers will find opportunities in the new and developing sectors:

Document Review: More and more law firms are outsourcing document review work to legal service providers. These providers employ a large number of lawyers on contract basis for document review projects. Although the projects are sporadic and there is not necessarily permanency of work, many newly called lawyers are beginning their careers as document review analysts. Some large law firms have even started to employ staff attorneys for their own internal document review divisions.

Virtual Solo Practice: With market mechanics demanding increased efficiency, more and more lawyers are choosing to operate ‘virtual’ law firms. By decreasing fixed expenses such as office rent, staff salaries, etc., lawyers are able to reduce their fee and provide a better value to clients. New lawyers should expect to work as a solo practitioner at some point in their career, potentially running their own virtual law firms. Similarly, new lawyers will have to reach out to clients, both businesses and individuals, and develop relationships. This networking will play a key role in securing ongoing work, which will include short term contract work as well as part-time, in house counsel roles for small businesses.

Alternate Careers: A number of lawyers will have to consider roles outside law. Canadian law schools are producing more law graduates than the market can absorb. On top of that, there are Canadians going to law schools abroad, as well as new immigrant lawyers who are entering the legal market in Canada. As such, newly called lawyers will have to look for alternate careers – and there are plenty around. The advantage: law school and bar training prepares lawyers to do more than just lawyering, and new lawyers should be open to exploring opportunities in business, finance, government, and the fast growing technology industry.

Is there any way to make oneself more marketable as a new lawyer?

Of course. The practice of law is changing, the number of traditional law jobs are decreasing, however, there are certainly opportunities for lawyers who are willing to embrace change and broaden their skills. New lawyers can benefit from focusing on the following skills:

Business skills: Law in today’s world is a business, albeit a highly ethical and intensely regulated one. The most important skill required to be a successful lawyer in today’s market is the ability to masterfully run the business of law. New lawyers can certainly benefit from honing their business skills.

Project Management skills: Lawyers, especially junior lawyers, are increasingly expected to treat a transaction like a project and focus on results. This is particularly true for lawyers working as document reviewers. Learning more about project management and gaining certifications can substantially increase employment prospects of a new lawyer.

Specialist Legal skills: While big law firms are decreasing the number of lawyers they hire, there is an increasing demand for lawyers with specialist skills at niche law firms. New lawyers can make themselves professionally attractive by developing a specialist legal skill. This can be done through pursuing a LLM degree or by attending CLEs in a specific area of law.

The practice of law is changing, and by all accounts, this trend will continue. The days when a lawyer was expected to concentrate only on legal work are over. A new lawyer is now expected to be a lawyer, a businessman, and a project coordinator. Above all, the new lawyer is expected to be adaptable to change and willing to embrace it with passion. Those new lawyers who appreciate these changing realities will better integrate in the workforce and will have a meaningful and satisfying career.


Zeeshan Adhi headshot

MUHAMMAD ZEESHAN ADHI is a lawyer and business consultant in Toronto. He studied law in England and practiced law in Pakistan before moving to Canada and re-qualifying as a Barrister and Solicitor. He also has a degree in finance and has worked as an investment banker and management consultant.

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Last Minute CPD – 2017

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It’s that time of year again when we ask you – have you got your CPD for 2017?

Still need some extra professionalism hours before we close for the holidays and welcome in 2018? OsgoodePD can help in your last minute CPD dash.

Below is a list of upcoming Live & Online Replay programs taking place over the coming days before the holiday break.

And while we hope you don’t have to spend your holidays catching up on CPD, we’re there if you need us – access hundreds of hours of our On Demand programming to provide you with the CPD you need in your practice area of choice.

Upcoming Live & Online Replay Programs

December 13, 2017
Ethics In Negotiation and Advanced Ethics In Negotiation opd_equals_sml 3 hours & 30 minutes Professionalism per program
Taxation In Wills & Estates - Online Replay opd_equals_sml 30 minutes Professionalism
December 14, 2017
Structuring, Negotiating & Drafting Entertainment Contracts (Online Replay) opd_equals_sml 1 hour Professionalism
Webinar: Drafting as Writing – Layout & Typography opd_equals_sml 1 hour Professionalism
December 15, 2017
15th National Symposium on Search and Seizure Law in Canada (Online Replay) opd_equals_sml One hour Professionalism
Webinar: Identifying & Mobilizing Change Resources: Technology, People & Processes opd_equals_sml One hour Professionalism
December 18, 2017
Writing for Results opd_equals_sml 3 hours & 30 minutes Professionalism
Webinar: Judges’ Tell All - Top Tips & Techniques opd_equals_sml One hour Professionalism
December 19, 2017
Estate Planning and Administration (Online Replay) opd_equals_sml Three Hours Professionalism
Blockchains, Smart Contracts and the Law (Online Replay) opd_equals_sml 1 hour Professionalism

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Time to Renew – and Reimagine

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Having recently renewed the lease on our downtown campus for a term running potentially to 2033, we have turned our minds to making improvements to the space. Our 1 Dundas space needs a refresh since the last renovations 10 years ago, and we outgrew the facilities some time ago. This is an opportunity to imagine a new space on the 26th floor, one that will evolve to meet the needs of the decade to come, and then some.

But what will teaching and learning look like in 2027? Or 2033? What kind of physical space will we need?

Amara’s law says that we overestimate the impact of technological change in the short-term, and underestimate it in the long-term. One imagines that in the long-term, physical space requirements for teaching and learning will be markedly different than they are now. At present, almost 50% of OsgoodePD’s clientele (Professional LLM students; non-degree certificate and course attendees) do not attend programs in person at our facility, but rather, join by desktop video-conference, live-stream webcast, or by downloading courses. Making learning flexible and accessible – while retaining depth – is an ongoing endeavour, involving multiple iterations of instructional and web design.

Legal education is heavily text-based (and there’s lots of it), and it presents a unique set of challenges for digital learning; it’s pretty safe to say that legal educators are at early stages of what can be done. In 2033, no doubt we’ll look back and chuckle at the blunt digital tools we’re using now. By then, I foresee that the intimacy we value in face-to-face teaching and learning could be present in the digital experience too, although it’s hard at this point to imagine that people will not, at least some of the time, want to physically come together to learn.

In the meantime, coming together and the kind of space we do it in makes a difference. We’re focussing on four things in our renovation: flexibility, accessibility, fellowship and light. In the absence of a crystal ball, we’re shooting for maximum flexibility in our learning spaces; moveable walls and spaces with furniture of all shapes and sizes. Improving access and experience for persons with disabilities is a key goal, in line with Osgoode’s strategic plan, Access Osgoode. We’re looking to enhance fellowship by creating a single large hospitality and mixing space on the southeast side of our floor, which has spectacular views. For that matter, we’re blessed with great views in every direction, so another objective is to bring natural light into every space we can. Finally, a key feature of the new space will be a multi-media studio, to better equip us to create even better online learning experiences.

Gow Hastings design for proposed OsgoodePD Floor Plan
Gow Hastings Architects proposed Floor Plan design for OsgoodePD’s 1 Dundas West space. For more details head to our OsgoodePD Renovation page.

We’re in the final stages of consulting our community on the renovation plans and will be closing down from May 1 through September 10, 2018 for the renovations. The plans include an expansion of OsgoodePD’s presence at Osgoode Hall Law School; around March 2018, part of our staff will be riding the new subway line to work at the York campus. Our classes and programs will continue during the summer 2018 shutdown; you will be able to get all the updates on construction, new class locations, or instructions for online access at the OsgoodePD Renovation page on our website. Like most renovations, this one will no doubt cause some temporary inconvenience – but we’re working hard to produce a result that will make all the disruption worth it, and more.

Gow Hastings proposed plans for OsgoodePD's Central Hub area
Gow Hastings proposed plans for a ‘Central Hub’ space at OsgoodePD. An area for studying and socializing. For more details head to our OsgoodePD Renovation page.

Stay tuned.


vwatkinsVICTORIA WATKINS
Assistant Dean and Executive Director, Osgoode Professional Development

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International Women’s Day: Women in Law

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To celebrate International Women’s Day at OsgoodePD, we are recognizing and showcasing achievements of women from our legal community by featuring alumni and our faculty.

Here we profile these women’s professional journeys and shine light on their accomplishments both at Osgoode and in the broader legal environment. Meet Stephanie Ben-Ishai, Stéphane Moraille and Kathleen Killin.


Stephane Moraille
General Counsel, The Phi Centre

An accomplished singer, musician and Juno winner (with Bran Van 3000), Stephane Moraille is a powerhouse who excels at anything she puts her mind to achieving, including law.
In addition to successfully completing her LLM in Intellectual Property Law, Stephane has an extensive background working as lawyer and counsel across both the arts, technology and entertainment industries, drawing on both her legal and entertainment experience in various Board positions since 2001.

Stephane Morialle - headshot

You have an accomplished background in music how have those skills and experience transferred and helped your legal practice?
I think it’s the hard work ethic that served me the most. Never underestimate the value of sweat equity.

When you win a Juno, people see the ‘highlight reel’ but they don’t see the background work, all the toil that went into attaining the award. Artists are some of the most hard-working people and dedicated workers – they’ll practice the same thing, countless times, in order to master a skill. I had to work, and toil and apply myself for countless hours with a sole focus.

This kind of dedication and this kind of work ethic translates well in law and legal contractual work, where you need to have a good head for detail, where you have to be thorough and thoughtful. All the while maintaining a broad perspective. One of the assets that my entertainment experience gave me was the ability to use both sides of my brain. I don’t see things with only the creative side or with only the intellectual side, both side work together.

You have been active and involved in numerous boards, including the Muchfact board, the Songwriters Association of Canada & Mainfilm. Do you see a lot of barriers for women in being considered for these positions?
Less and less now. I think women, as general, don’t step forward enough for these opportunities. As women, we will find all the reasons why we shouldn’t apply for the board, or why we shouldn’t take an opportunity. Whereas, in general, a man doesn’t really look at the disruption it’s going to create, or the time invested – he’ll say yes to the opportunity first and then do his best to make it work.

I think as women, we have to just step forward. And stand together.
There is this solidarity between men, they help each other with what job is available and who would be good for it. It’s time for us to understand, as women, that there’s power in networking and power in solidarity and loyalty. And it’s time for us to step forward and step forward together. I’ve had instances where I was knocked down by people who could have helped me but I also had the immense blessing to have a mentor in one of the most brilliant attorneys here, Claire Benoit. Talking about what you know is one thing but knowing what you are talking about is another altogether. It is so precious when decades of experience can be transferred.

I’ve been on boards since 2001 and I have yet to step into a board where there’s another woman. It’s a little bit lonely, I’m always the only woman, and always the only black woman. We need to network – every time I can uplift another female, I do it. Every time I can put someone somewhere where their talents will shine, I try my best to help.

What does International Women’s Day mean to you?
A chance. A chance to make things better. A reminder of how far we’ve come. We have a lot of work to do, around the world, in gaining respect for women. We need to address the epidemic of violence against women that we can no longer deny. Every day, girls are underfed, uneducated, mistreated. We’re half the world’s population and changing this path will change the world.

We need to encourage each other, we need step forward and we need to step forward together. Let’s celebrate the work that has been done, but also take pause and look at the work that still remains to be accomplished.


Stephanie Ben-Ishai
Professor, Osgoode Hall Law School

A tenured professor at Osgoode, as well as an Academic-in-Residence at firm Davies Ward Phillips & Vineberg, Stephanie Ben-Ishai has been awarded the American Bankruptcy Institute Medal of Excellence along with the SSHRC, Fulbright and Osgoode Hall Law School Research fellowships. In addition, Professor Ben-Ishai is also a published author, co-author and editor and is an active member of several Canadian and international boards and committees.

Professional Headshot, STEPHANIE BEN-ISHAL

How have you drawn on such an accomplished background to help develop and shape the LLM program and Small Business Clinic?
I feel fortunate to have had such variety in my career and I feel like each of the different elements of my teaching, service, research and professional activities all shape and benefit each other. I learn from my students varied and global experiences and I contribute to them with elements from each of my own experiences. It’s an ongoing project that I really enjoy.

You’re active in reform, regularly providing consultation to governments & self-regulatory organizations – What drives your involvement with such bodies on insolvency and commercial law matters?
My research is often empirical and helps uncover areas in need of change. I feel a great sense of accomplishment when I can contribute to that change based on my research and technical expertise.

What does International Women’s Day mean to you?
For me it’s about celebrating my mentors and mentees and recognizing there is so much work to be done both at a personal level and at an institutional level. As I raise my four-year-old son and start to see him ask big questions this takes on new meaning for me.


Kathleen Killin
Student at Law, Daoust Vukovich LLP

Internationally educated and trained, Kathleen Killin (an alumna of both Osgoode’s LLM in Canadian Common Law and LLM in International Business Law) has long been a high achiever in the art, technology and legal worlds. Kathleen has been named a top Artificial Intelligence writer on Medium and featured as a ‘Women of Legal Tech’ by Legal Tech News and CodeX. Kathleen currently serves as the only Canadian representative in the New Leader Circle for the International Center for Research on Women, based out of Washington, D.C.

Professional Headshot of Kathleen Killin

This is your first year of practicing law – how are you finding it? What lessons have you learnt first year?
Like any new job, there has definitely been a learning curve. I am extremely fortunate to have great mentors within my firm, Daoust Vukovich LLP, who I can rely upon for guidance on this new journey. The lessons I’ve learnt have been abundant, but one that resonates with me the most is the importance of setting goals. I like to set weekly, monthly and yearly goals, with some that are easily achievable and others that will definitely require a lot of work. For example, one of my weekly goals is to eat away from my desk once a week to give myself a mental break (even for ten minutes), whereas a 2018 goal is to be published twice this year. I find it keeps me on-track and motivated. I also feel a twinge of accomplishment when I can check an item off the list. And, three quick points on what I’ve learnt so far: always be prepared; anticipate questions before they are asked; and master that follow up email!

You’ve had an interesting journey into law – an accomplished background in Art & Art History – how have those skills and experience helped your practice?
I’ve worn many hats over the years in the art and technology worlds, and now, in law. A constant in every industry is the importance of perseverance and determination. These two qualities transcend boundaries. I learnt early during my time in the art world that unplanned circumstances may get in the way of your successes. Remember to use these stumbling blocks to push yourself and move forward. Give yourself a few hours (or a day) to regroup, then channel your energy into how you will accomplish the task in a different way.

What does International Women’s Day mean to you?
International Women’s Day is a reminder of how much work we still need to get done. In light of the political turmoil south of the border, we have been reminded that we cannot rest on our laurels and expect the governments of leading nations to respect the rights of women. We celebrate the day to remember those ‘Nasty Women’ who have come before us – from Nellie McClung to Rosa Parks – but must also remain somber and determined to continue to fight the good fight for true gender equality.

What do you see as the biggest challenge(s) for women in law?
The biggest challenge I see for women in law is not law specific – it is across every industry. There truly aren’t enough women at the table. Whether it is in the legal, technology, construction, or mining fields, women are constantly underrepresented in leadership positions. This is my greatest hope for women in law in the future. This has begun to change, but more needs to be done in order to achieve equal representation on boards, in C-suite positions, or at the partnership level.

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Moving Day: An Update on OsgoodePD Renovations

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Late last year, I shared the plans for our expanding footprint, including new OsgoodePD offices at Osgoode Hall Law School at York University campus, as well as renovations at 1 Dundas Street West. It’s hard to believe but phase one is upon us already.

March 22 marks the first of four physical moves for the OsgoodePD team this year. We’re opening new offices (OsgoodePD – Keele Campus) in the law school that will bring our Marketing, International & Full-time Professional LLM Programs, and Finance & Business Operations teams together (pictured below).

OsgoodePD Marketing Team
OsgoodePD Full-Time Professional LLM & International Programs Team
OsgoodePD Finance & Finance & Business Operations Team

Our Full-time Professional LLM students taking classes at the Keele campus will have improved student services facilities and OsgoodePD will be better positioned to support bridging programs for JD students as well as other interdisciplinary initiatives.

At the end of April, those remaining at 1 Dundas will clear out temporarily while the entire 26th floor is renovated with a view to the future. A new community hub and a state-of-the-art multi-media studio will bring this already fabulous space (with some of the best views in downtown Toronto) into the 21st century. Professional LLM classes and some other programs, including CLE Programs, will run in other locations during the shutdown. For up-to-date information on locations, see the Renovation Updates page on our website.

Gow Hastings proposed plans for OsgoodePD's Central Hub area
Gow Hastings proposed plans for a ‘Central Hub’ space for studying and socializing at OsgoodePD Downtown.

Come September, we’ll be up and running again at 1 Dundas (OsgoodePD – Downtown), welcoming lawyers, paralegals, judges, adjudicators, police, mediators, teachers, nurses, regulators, physicians, tech entrepreneurs, procurement professionals, accountants, engineers, and many, many others through our doors and through our online portal, to our one-of-a kind program. Stay tuned!


Victoria Watkins HeadshotVICTORIA WATKINS, Assistant Dean and Executive Director, Osgoode Professional Development

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Straight Talk about Artificial Intelligence with Kathryn Hume and Carole Piovesan

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This article was originally published on BetaKit (March 22, 2018).

Kathryn Hume and Carole Piovesan are powerful forces in the Toronto artificial intelligence community.

Kathryn Hume is Vice President of product and strategy for Integrate.ai and a venture partner at ffVC, a seed- and early-stage technology venture capital firm. Carole Piovesan is a lawyer at McCarthy Tétrault LLP and the firm’s lead in the area of artificial intelligence. Piovesan has appeared before various administrative tribunals, at all levels of court in Ontario, as well as at the Supreme Court of Canada. Hume and Piovesan are widely respected speakers and writers on AI and excel at communicating how AI and machine learning technologies work in everyday language.

As the world seeks to understand the ramifications of artificial intelligence, many want to know how an AI revolution will reshape our world. Piovesan and Hume will be sharing their thoughts at Osgoode Professional Developments’ Artificial Intelligence: Confronting the Legal and Ethical Issues of AI in Business (April 25) program, where they will be joined by Brian Kuhn (Global Leader, IBM Watson Legal) and Julie Chapman (General Counsel, Canada and Chief Privacy Officer, Lexis Nexis Canada).

Kathryn Hume and Carole Piovesan recently spoke with OsgoodePD Program Lawyer, Amy ter Haar, about what AI means to them for an upcoming episode of Strictly Legal, OsgoodePD’s podcast on all things legal. Here’s an extract of that conversation and a sneak peek at what you can expect at the upcoming AI program.


Amy ter Haar: What does AI mean to you?

Carole Piovesan: Artificial Intelligence is a sophisticated computer system that crunches a whole bunch of data and uses that data to make meaningful predictions.

What is interesting from a legal perspective, however, is that an AI system can analyze data, make predictions and, in some cases, and increasingly, act upon the predictions. In such a case, there is an interesting relationship between the system and the human. From a legal standpoint, what does it mean when the human is no longer at the center of the action?

AI provides a host of opportunities in terms of making processes more efficient, deriving great meaning from data that already exists, but then increasingly using that information to act upon it in an independent way poses some really interesting legal questions.

Kathryn Hume: AI is a murky enough term that we exercise agency in how we choose to define it, colouring the issues that come to the fore and the questions that we ask about the technology. While it’s jocular, I like Nancy Fulda‘s definition that “AI is whatever computers can’t do until they can.” This definition shows how AI is more a psychological term than a technical term, more about what we consider to be intelligence than any rigorous technical capability, as many underlying technologies power products marketers refer to as artificial intelligence. It also bakes a notion of progress into the definition, showing that it’s a moving target. These technologies are advancing so quickly that it is hard to have a rigorous technical definition to say that ‘x’ technique qualifies as artificial intelligence and ‘y’ doesn’t anymore.

A great example is Google Maps, which most of us no longer think of as artificial intelligence because we’ve become accustomed to see it as plain-old technology—it’s powered by some of the most sophisticated data and machine learning algorithms out there. Yet, we currently consider self-driving cars to be a form of AI because they’re just on the horizon of conceptual possibility.

There have been multiple underlying technologies that have qualified under the general rubric of AI historically, from deterministic methods based upon predicated logic to expert systems that encode common rules in a given domain. We currently associate machine learning with AI, which, as Carole mentioned, is a subfield of computer science where computers improve their performance upon a specified task as they receive new data.


Hear more from Kathryn Hume and Carole Piovesan at OsgoodePD’s Artificial Intelligence: Confronting the Legal and Ethical Issues of AI in Business, April 25. Reserve your spot today.

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Digital Assets and Planning for Incapacity

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Canada presently boasts a population of more than 770,000 people aged 85 or older. In recent years, this group has grown nearly four times faster than the growth rate for Canada’s overall population. By 2051, Statistics Canada predicts that this number will increase more than threefold, such that 2.7 million people will be over the age of 85.

Alongside this growth in Canada’s aging population, technology has continued to develop and infiltrate Canadians’ daily lives. Email, texting, online banking, and social media websites such as Facebook, Twitter and Instagram are now commonplace, if not integral parts of today’s society. Recent surveys indicate that 99% of North Americans report using at least one personal online tool, while 85% report using at least one financial online tool. The use of digital resources is not just restricted to younger age groups – between 2013 and 2016 alone, internet use rose from 65% to 81% among 65- to 74-year-olds. Among those aged 75 and older, usage rose from 35% to 50% in the same period.

With Canada’s elderly population on the rise, and with the ever-growing modern prevalence of online and digital resources, it is of increasing importance to consider how one’s digital assets should be managed in the event of incapacity. At present, no formal legislation in Canada addresses digital asset planning. If parties do not ensure that these assets are planned for, they can put themselves, their personal legal representatives, and their future beneficiaries at risk.

Defining Digital Accounts and Assets

In 2016, the Uniform Law Conference of Canada (ULCC) adopted a uniform act regarding digital assets which defines digital assets as “a record that is created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic or optical means or by any other similar means”1.

The difference between digital assets and digital accounts is important: while an asset typically refers to a singular file itself (such as a photo, email or word document), accounts generally refer to the mechanism used to control and access certain assets (such as a Facebook account, an email account, or an online banking account). Three main types of accounts have been identified: those containing (1) actual currency information (such as a Paypal or Bitcoin account); (2) virtual property (such as a Kindle or iTunes account); and (3) personal or commercial information (such as Facebook, email accounts, or LinkedIn accounts).

Current Law

While the ULCC’s uniform act has the potential to guide the development of digital asset laws in Canada, no provinces have yet implemented laws on the subject. As a result, if a party does not include a specific designation regarding digital asset management in their power of attorney, their legal representatives may find themselves restricted from accessing and managing these digital assets or accounts by a service provider’s privacy rules, or their terms of use. In these circumstances, attorneys for property may also have to consider questions of ownership rights to the asset in question, and potential jurisdictional issues with respect to privacy laws for the particular asset or account.

Powers Of Attorney, Digital Assets and Incapacity

One can help to protect against both financial and reputational damage by including provisions and information regarding the management of digital assets in their power of attorney. Some concerns may include:

  • Depleting resources through online accounts: If an attorney for property is not advised of a party’s online accounts – such as a bank account, or an online gambling account – an incapable person could deplete significant financial resources without the attorney even realizing the damage being done
  • Managing assets for financial value: An attorney for property must know the whole extent of a party’s assets and liabilities to effectively manage that property – if they are unaware of existing digital assets, the attorney may be unable to uphold their fiduciary obligation to manage those assets for the incapable person’s benefit.
  • Sensitive correspondence: Parties may have emails, text messages, or blogs that are private, and that they do not want friends or family members to view or access.
  • Inappropriate media sharing: In a state of incapacity, a party may be unable to discern between what is appropriate or inappropriate information to share on a social media website.
  • Susceptibility to scams: Capacity issues may also increase a person’s vulnerability to online fraud, or scams.

It is key to ensure that an appointed attorney is adequately technologically savvy such that they can properly manage the digital assets in question. It may be appropriate to create a separate power of attorney, specifically with respect to giving power to a trusted and technologically literate representative to be responsible for one’s digital assets and online accounts.

In planning for one’s digital assets, one should consider the following factors:

  • The extent of one’s digital assets and accounts;
  • How to provide access of these accounts to their personal representative (e.g. through a regularly updated online account inventory and password bank)
  • One’s personal preferences for how these assets should be managed in the event of incapacity (e.g. would one want their account shut down entirely, or preserved? Should some accounts, such as an online banking account, be shut down before others? Etc.)

An attorney for property should also be informed of any service providers who typically assist with a party’s technical issues, if one exists.

Conclusion

As our population continues to age, and more and more of our resources move and develop online, terms addressing digital assets in powers of attorney will only increase in importance. In today’s modern landscape, it is integral to thoughtfully consider these assets while capacity planning for the future.

If you are interested in learning more about incapacity planning considerations like this one, visit the Osgoode Professional Development website for information about the upcoming program, Powers of Attorney and Guardianship: Non-contentious and Contentious Matters, taking place April 19, 2018.

1Uniform Access to Digital Assets by Fiduciaries Act (2016), Uniform Law Conference of Canada (Adopted August 2016). Presented at the Uniform Law Conference of Canada in Fredericton, New Brunswick.


ian hull profile image

IAN HULL, LLB, is co-founding partner of Hull & Hull LLP. Ian practices exclusively in the areas of estates, trusts, capacity and fiduciary litigation. Ian is a lecturer at the Ontario Bar Admission Course and guest lecturer for the Canadian Bar Association and the Law Society of Ontario. Ian is also the author of numerous articles and has written four books on estate law issues.

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Two New Courses Reflect How Legal Education is Changing for 21st Century Practice

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Whether it’s a solo, small or large legal services enterprise, the delivery of legal services is changing. This spring, we’re launching two new hands-on courses to equip students for 21st century practice.

Small Firm Practice

The first, Using Digital Technology in Law Practice, is a collaborative effort by two Osgoode faculty, Monica Goyal and Paul Maharg, supported by Thomson Reuters. The course builds on a 2017 Learning and Leading series course called Tech Transformation that introduced practice software and technologies within a small firm practice simulation. In the context of managing and settling a client litigation matter, participants of Using Digital Technology in Law Practice will work together using various digital tools provided by Thomson Reuters, including Case Notebook®, Practical Law Canada™, and Case Logistix™. The simulation gives students an opportunity to interview a client, conduct research and negotiate a settlement, while using practice tech tools.

The simulation aspect of the program is being developed by Professor Maharg, drawing on his extensive experience in creating legal education simulations using virtual firms and simulated clients.Simulated clients are based on standardized patients used in medical education and assessment. The sim clients are not simply playing a role; they are trained to provide structured feedback to the student from the client’s perspective. Our hope is that this is the start of building a pool of trained simulated clients that can be used in multiple ways.

In-house, Larger Firm and Legal Tech Practice

The second program is a cross-border collaboration that includes law faculties from University of Indiana, University of Colorado, Northwestern University and York University’s Osgoode Hall Law School, as well as numerous firms and in-house legal departments. Under the umbrella of the Institute for the Future of Law Practice, training boot camps and paid internships are being developed with the goal of fostering students who want to practice law and are “operationally aware”, as well as students who are exploring a different career track in the growing field of Legal Operations.

The collaboration is the brainchild of Professor Bill Henderson of University of Indiana and Bill Mooz of the Colorado Tech Lawyer Accelerator, who saw the potential career opportunities for law students that are interested in the business aspects of delivering legal services in corporate law departments, law firms and legal services providers. Henderson also saw that the expertise in the business and technology of legal services delivery did not lie in the legal academy – it was in the field. That being the case, it made more sense for law schools to team up and work with Legal Operations, tech, and business professionals to develop a rigorous and hands-on curriculum that would prepare students for further learning through internships.

In May 2018, Osgoode is participating in the Basic Track Bootcamp (headed by Dan Linna of LegalRnd) on a pilot basis, and has the commitment of a number of Canadian employers to provide internships in areas such as data analytics, process mapping, project management, and pricing.

The great line-up of speakers at the recent Osgoode PD conference, 2nd Annual Disruption in Legal Services Delivery: What Students and New Lawyers Need to Know, hammered home that whether students are headed for small firm practice, big firm or law department practice, (or really, wherever legal services are delivered) lower cost and more efficient service are the order of the day. Both client-centred service design and technology will play a big part in that, and at OsgoodePD, we’re building for that future.


Victoria Watkins HeadshotVICTORIA WATKINS, Assistant Dean and Executive Director, Osgoode Professional Development

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Breaking Ground: OsgoodePD Renovations Begin

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The day has finally come. OsgoodePD’s 1 Dundas Street location is closed for renovations until August 31, 2018. We’ve talked about our renovation plans in previous posts, with an overview of our plans, and the first phase of our move. Yesterday marked the last day of programs in our downtown facility, and our staff are getting ready for the demolition.

Gow Hastings proposed plans for OsgoodePD's Central Hub area

We are still holding programs and classes over the summer, with the latest info on our Renovation Updates page on our website. While our downtown location is closed, you can still reach us via email or phone.

As we purged and packed, we found some great gems, like the invitation to OsgoodePD’s launch in 1995 (left) and our first LLM brochure (right).

OsgoodePD's 1995 invitation

LLM brochure

and a Rolodex

Here’s one last look at the space from yesterday:

OsgoodePD lobby area

OsgoodePD class E

We’ll be posting updates throughout the summer, and will have a sneak peek of the new space in September!

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The Divorce Act is Being Amended: What it Means to You

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In May 2018, Justice Minister, Jody Wilson-Raybould introduced a Bill to amend the Divorce Act. This is the first set of amendments since the modernization of the Divorce Act in 1986. To be sure, the Child Support Guidelines and Tables were updated in the 1990’s but no new language, terms, or changes to the Act have been made since the Divorce Act was modernized in ’86.

The lack of updates has caused a disconnect between the terms of the Divorce Act and the application of the language in courts, mediations, negotiations and other dispute resolution processes. As family law resolution evolved over the decades, the language of the Act did not. The result was that modern families, with the help of divorce professionals, developed and implemented new language to fill the gaps. While this organic process was unfolding, the language of the Divorce Act fell further and further behind.

Statistically, 50% of marriages in Ontario will end in divorce. Divorce, unfortunately, is now commonplace and affects every member of the household. Divorce also often affects the wider circle of family members, joint service providers, and mutual friends.

The Federal Government, through the Minister of Justice, Jody Wilson-Raybould, introduced amendments focused on key objectives:

  • Promote the best interest of the child
  • Address family violence
  • Help to reduce child poverty
  • Make Canada’s family justice system more accessible and efficient

Known as Bill C-78, An Act to Amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, the Bill amends language and modernizes and clarifies terms. 

In the weeks since the announcement, much has been written about the change in language from “custody and access” to “parenting” orders. The former language has been criticized as being hierarchical in nature, creating discord between parents who then cannot compromise on a post-separation parenting schedule or decision-making regime that they feel minimizes their parental status. The new amendments change this language to parenting orders decision making and parenting time. The language change in the Bill is helpful and will bring the Act into step with the language being used by most professionals. This amendment is a catch up to what is happening on the ground. Very helpful but not ground-breaking.

Of interest is that the best interest of the child test is now captured in the amendments. The amendments clearly reject a presumption of a shared custody starting point, in favour of the best interests of the child standard when adjudicating parenting issues. The important aspect is that the best interests of the child test provide a series of factors to guide courts and practitioners when crafting a parenting decision.

The amendments also address the tricky situations of relocation. This occurs when one parent seeks to move with the children to a different jurisdiction. This could be to a new area of the city, a new province, or a new country. These cases are high stakes cases, where the parent opposing the move stands to lose regular contact with the children. “Mobility cases”, as they are called, have resulted in a variety of decisions and are hard to predict. Without guiding factors, like the detailed ones provided for in the definition of the best interest of the child, practitioners and courts were left to craft their own criteria. This inevitably resulted in inconsistent decisions and made it difficult for counsel to reliably advise either parent on how to proceed. The new legislation mandates that the moving parent provide 60 days’ notice of the proposed relocation and if the other parent does not agree, the Act now provides more structure and guidance on assessing the best interests of the child in mobility cases.

An important addition to the legislation is a deeper engagement in the issue of family violence. Family violence is certainly of the most challenging situations that face divorce professionals, and the screening and need for awareness of partner violence is a key factor in the triage stage of family law files.

The proposed amendments include a new definition of “family violence” and, should it be found to exist, guidance in the development of a parenting plan and in court proceedings. Family violence is defined in the Bill and considers sexual abuse, harassment, financial abuse, and psychological abuse, and includes, with respect to a child, “the direct or indirect exposure to such conduct.” The proposed changes direct a court to consider the existence of any family violence as a factor in determining the type of decision-making and contact order to be made.

Further changes in the Bill include amendments to the enforcement of the payment of family support and encouraging families to use mediation instead of the court system. The Bill refers to family dispute processes including negotiation, mediation, and collaborative law. Under the Bill, the court can direct the parties to attend these alternative forms of resolution. It also requires any legal advisor to “encourage the person to attempt to resolve matters through the process unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.” This follows in the footsteps of section 9 of the current Divorce Act mandating legal professionals to canvass the possibility of reconciliation and, if such a possibility exists, to draw the client’s attention to resources that can aid in the process.

Many of these progressive changes will go a long way in bringing the Divorce Act into the reality of the modern family.

To learn more information visit Osgoode’s 8th Annual Recent Developments in Advanced Issues in Child and Spousal Support. 

 


Kathryn Hendrikx profile image

Kathryn Hendrikx practices exclusively in the area of Family Law. She received her B.A. and M.A. in Political Science and obtained her law degree from Osgoode Hall Law School. She is a member of the Women’s Law Association of Ontario and is on the Board of the Ontario Bar. She is a member of the Family Lawyers Association of Ontario and the AFCC.

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If Information is Power, How Can You Use Yours in the Battle Against Cyber Crime?

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Safeguarding private information and network security are now critical elements of the operation of any successful business. Coupled with this is the need for an understanding of how best to manage an organization’s risks and the potential liabilities associated with the failure to protect data and to defend against breaches or loss when perpetrated using technology. In-house and outsourced legal counsel must now be prepared to scrutinize contractual language as it relates to privacy and cybersecurity. There are serious issues to address: How can liabilities be properly managed, should they be managed internally or transferred to others; If an organization suffers a breach incident what obligations does it have to its stakeholders, its employees, its customers, and/or others?

One important area of contract review for organizations and their legal counsel is insurance. Network security and privacy liability insurance, a.ka. cyber liability insurance is fast becoming a critical type of insurance coverage for organizations of all sizes. Cyber liability insurance is designed to respond to a variety of circumstances, all of which revolve around the safeguarding of data, whether print or electronic and maintaining the integrity of a computer network system. The coverage typically includes:

A. Coverage for suits brought by 3rd parties for the failure of an insured to properly protect that 3rd party’s sensitive information, whether due to a hacker or an employee error.

B. Coverage for claims by 3rd parties who have suffered a financial loss because an insured’s network system caused them harm. For example, the transmission of a software virus from the insured to the plaintiff. More critically to a cyber liability insurance policy is what it provides in 1st party protection. 1st party coverage protects an insured when they discover an incident and need help to triage the situation before it evolves into a 3rd party claim. For example, when the head of IT pays a visit to senior management to advise of a potential break in the network system, the situation likely needs to be investigated immediately. In this case, the 1st party coverage of cyber liability policy should be triggered and ideally, the breach threat is resolved before it escalates to a 3rd party claim.

In today’s cybersecurity environment, many insureds struggle to determine what, if any, insurance policy can be triggered to provide protection in the event of a network security or cyber breach. The novelty of cyber breaches is such that most traditional policies will not respond to a breach or if they do it will only be in a limited fashion. If a policy does respond, it is very possible that gaps in the coverage, including policy exclusions, can limit coverage. This is why in-house and outsourced legal counsel must be familiar with insurance policies and their potential gaps. Take social engineering fraud for example. Social engineering fraud, such as “spear phishing” which is one form of the fraud, is a lucrative con perpetrated on an unsuspecting victim via email. But, unlike other electronic transmission-based crimes, social engineering fraud doesn’t depend on sophisticated hacking techniques and its end goal is generally steal money, not data. Social engineering fraud typically involves sending (usually by email) a targeted employee a bogus but very genuine looking instruction to transfer funds to a 3rd party. If the employee falls for the hoax and transfers the funds – there is clearly a financial loss to the employer. But, from an insurance standpoint, does coverage for the loss fall under a crime policy or a cyber liability policy?

Crime Loss VS. Cyber Loss

Crime insurance typically deals with the loss or theft of money while cyber liability insurance primarily deals with loss or theft of data. As already noted, the goal of social engineering fraud is typically to steal money which would suggest crime insurance should respond. Unfortunately, it’s more complicated than that.

Traditionally, crime insurance targets loss due to intentional employee theft. If the employee is deceived into directing funds to a seemingly legitimate third party, the employee is not themselves stealing and, therefore, the act may not be seen as a true crime loss.

In a recent court decision (The Brick Warehouse LP v. Chubb Insurance Company of Canada, 2017), a scenario challenging the interpretation of coverage under a crime policy was played out. An employee at The Brick was tricked into believing that one of their vendors had changed banks. Following this, a second employee who also believed the request to pay the vendor’s invoices to the new bank was entirely legitimate, authorized funds totaling $448,000 to be transferred from the Brick’s bank to a fictitious bank account. The Brick reported the loss to their crime insurer. When their claim was denied, The Brick sued the insurer, arguing that the loss should have been covered under the crime provision for “Funds Transfer Fraud by a Third Party”. Unfortunately, for The Brick, the definition of Funds Transfer Fraud in the crime policy was (and is) very restrictive: invoking coverage requires a fraudulent instruction to be made to a financial institution (i.e. a bank) directing it to pay money from the insured’s account without the insured’s consent. In The Brick’s case, while the funds were authorized for transfer by the duped employee, the instructions given to the bank by the employee were clearly done with The Brick’s consent and there was no intent on the part of the employee to steal. As such, the insurer was successful in denying the claim.

Insurance coverage for social engineering fraud is not a standard to either a crime or cyber liability insurance policy but it can be added as a coverage endorsement usually to a crime policy. A select number of insurers are prepared to offer social engineering fraud coverage in addition to a cyber policy, but most insurers see it primarily as a crime loss even though it might smell like cyber.

Whether added through a crime or cyber policy, social engineering fraud coverage is typically sub-limited and relative to the overall main policy limit. A sublimit of $250,000 on a $1M crime policy is not uncommon.

The old adage that information is power has never been truer in today’s business world. Organizations must use the information to adapt to the evolving battle against loss and breach perpetrated using technology – and must not only be cautious in how they treat and protect client data, but they must also be sure to protect themselves from loss and various liabilities associated with failing to do so through careful contract review. In some cases, a risk transfer mechanism like insurance can augment diligent contract protections. However, when placing insurance coverage to transfer risk organizations, their legal counsel and their insurance advisors must be sure that the right policies are in place. Subtle differences exist within insurance policy wordings and coverage, such as between crime and cyber liability insurance policies. Be sure to review them with proper expertise.

To learn more information about cyber insurance, visit OsgoodePD’s Legal & Business Risk Management in Cloud & SaaS on September 28, 2018 – registration is now open. Or for more information on Privacy and Cybersecurity visit OsgoodePD’s LLM in Privacy and Cybersecurity. Register for an upcoming Information Session or learn more about the application process. The application window is now open – the program starts in January 2019.

 


Yonida Koukio profile image

Patrick Bourk, is the National Cyber Practice Leader for HUB International Canada. As an insurance coverage expert, he provides technical expertise in the analysis, placement, and negotiation of various management risk insurance coverages. Patrick also provides claims expertise and assists clients by managing and advocating on their behalf.

The post If Information is Power, How Can You Use Yours in the Battle Against Cyber Crime? appeared first on OsgoodePD Blog.

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