Lawyer Disbarred for Student Debt

Thu, 16 Apr 2009 01:56:03 GMT

As reported by The Globe and Mail, Houston-based lawyer Frank Santulli has been stripped of his licence to practice law because of his student debt. Santulli has carried US$67,000 in outstanding loans since 1998 and failed to follow a plan to repay them: A Texas appeals court said lawyer Frank Santulli III did not have the [...]

A Texas appeals court said lawyer Frank Santulli III did not have the trustworthiness needed to represent clients because of his failure to comply with the repayment plan… The appeals court cited the possibility that “he will harm a client, obstruct administration of justice or violate the disciplinary rules.”

So two courts have now found a logical connection between Santulli’s ethical soundness and his ability to pay back massive debt. Could the same thing happen in Canada? Well these are tough times (comparatively) for lawyers entering the market, and a study four years ago found that “27 percent [of all current law students] expected to have debt of $40,000 to $70,000 and 13 percent expected to graduate with over $70,000 of debt.” With some students graduating with up to $100,000 owing, Mr. Santulli’s tale is a reminder to keep track of your debt, figure out how you’re going to repay it, and to live the frugal life as a law student.

Amicus Curiae sits down with Justice Binnie of the Supreme Court of Canada

Sun, 05 Apr 2009 04:06:11 GMT

Ahmed Farahat of UWO’s new law paper interviews Justice Binnie. If I can start by asking you: when did you first decide to embark on a career in law? I think when I was in college. I arrived at it by a process of elimination. I could see all sorts of jobs that I was congenitally incapable [...]

Ahmed Farahat of UWO’s new law paper interviews Justice Binnie.

If I can start by asking you: when did you first decide to embark on a career in law?
I think when I was in college. I arrived at it by a process of elimination. I could see all sorts of jobs that I was congenitally incapable of doing. I did a lot of debating in my undergraduate years, and becoming a barrister seemed like fun.
I noticed in your biography on the Supreme Court’s website that you did your LL.B. in Cambridge. Why did you get your law degree from the UK?
At the time I went, Ontario accepted entry to the British bar to go straight to the Bar Admission Course. So I thought: here is an opportunity to see another part of the world and get an educational qualification that is recognized in Ontario. Unfortunately, when I was away they changed the rules and when I came back, they said well, now you have to get an LL.B. from an Ontario law school. Seemed like a good idea at the beginning.
How was the Cambridge experience different from the one you had here at the University of Toronto?
The experience in the UK is totally different from University of Toronto. In the UK, they studied medieval English, Roman law, and all kinds of topics that were absolutely of no practical importance whatsoever. Toronto, when I got there, was experiencing quite a golden age with Bora Laskin and many interesting professors. So there was eventually no duplication at all between the three years I spent at Cambridge and the two years I spent at Toronto. And there is no doubt that Toronto’s education was of a higher order. The English system has law as an undergraduate degree, so you go straight from high school to law, whereas in Canada, students already completed their undergraduate degree. In England, there was no real reason to go into law other than escaping history and literature and all the other courses you performed poorly in during high school.

Shifting gears a bit, how did you initially view the Charter when it passed? Did you expect that it would have the dramatic impact it would come to have in Canadian law?
I was Associate Deputy Minister of Justice when the Charter was adopted. There wasn’t any expectation from the government that the Charter will become such a popular icon, such a cultural identification of Canadians with their rights. I am very glad that the Charter had the impact it had, but I don’t think it was envisaged even by Trudeau to achieve the centrality to Canadian culture it now has.
Say it’s 1982, and you were shown a preliminary version of the Charter. You were asked to recommend changes. What would those be?
Well, in fact I was privy to the Charter put forward by the government. And that document was much more limited than the one that ultimately became the Charter. If you look for example at the draft of s.15 that was proposed by the government, it was quite a limited anti-discrimination provision. It was the parliamentary committee that expanded it enormously by adding everything that follows the words “and in particular”. So these very broad, general equity rights were not suggested by the government, but they were part of the parliamentary activity. I think there is some language in the Charter that might be a little clearer than it is. But as a constitutional document, the Charter fits in well with the European Convention on Human Rights, the Bill of Rights in the US, and other constitutional documents. I think it has withstood the test of time very well.
Moving on to the part of your career as a Supreme Court judge. How did you know that you were being considered for a position on the Supreme Court?
Very shortly before I was appointed, John Sopinka died at the end of November 1997. I was in practice with McCarthy Tétrault at the time. I got a call early in December asking if I would be interested in the position if asked. I didn’t really take it as a very serious request. The Department of Justice was compiling a whole lot of names that would eventually go to somebody who would make a short list. So on the basis that I was a very remote candidate, I said, yes of course – if nominated, I would accept it. And then there wasn’t very much feedback until shortly before the appointment was made. There was a certain urgency, because the Quebec Secession Reference was pending before the Supreme Court, and Chief Justice Lamer said that he wasn’t going to sit without a full court. So the government was anxious that the Quebec Secession Reference proceed and so they were consequently anxious that the nomination proceed. So I got a call a couple of days before I was appointed, to confirm again that yes indeed, if nominated, I would accept it. And I think the short list went to Cabinet, and whatever criteria they applied, my name came out.
In the US Supreme Court, one could predict in advance how the judges will rule on particular issues, such as abortion or capital punishment, given their known political affiliations. My question is twofold: why is such polarization of opinion not present on the Supreme Court of Canada, and secondly, is it realistic to expect that judges shed their personal beliefs and opinions when sitting on a case?

Well, on the first point, I think that the polarization in the US Supreme Court reflects polarization in their politics. And because the selection process has become such a matter of political controversy that they look for people who agree with them – that is to say, Congressional Democrats want somebody who agrees with them, and Congressional Republicans someone who agrees with them. So the candidates whom they are interested in having nominated are almost, by definition, people who have strongly entrenched views. We don’t have that up here. When I was appointed, nobody had any questions about what I thought about any aspect of jurisprudence.
You were not asked to give a preliminary opinion on what you thought about the Quebec Secession Reference?
No. That would have been entirely inappropriate. My selection was just based on consultations within the legal community as to who should be appointed. On the second question, I don’t think a judge can put aside a lifetime of experience but I think you do appreciate that you are not there as an individual, but as part of the system of justice. It is not appropriate that I impose my personal views on the constitution. You try to divorce your personal views from what you think should be the proper legal conclusion. And I think there is an overestimate on the part of people who comment on those things that personal prejudice plays a larger role than it does in determining, for example, rights under the Charter. There is a lot of precedent in the European Courts, the American Court, and other countries with an entrenched Bill of Rights as to what the general parameters of those rights are. I don’t think that any judge in our Supreme Court thinks, well I’ll just re-write it the way I’d like to see it.

International Day for the Elimination of Racial Discrimination

Sun, 22 Mar 2009 00:38:46 GMT

International Day for the Elimination of Racial Discrimination: Racial Minorities, particularly Blacks, in Ontario Have very little to Cheer about or Celebrate (written March 10, 2000; first updated September 17, 2004; second update March 21, 2009) by S. Pieters, B.A. (Criminology), LL.B. (reproduced with permission of the author) It is that time again. The International Day for [...]

by S. Pieters, B.A. (Criminology), LL.B. (reproduced with permission of the author)

It is that time again. The International Day for the Elimination of Racial Discrimination. The struggles of African Canadians are not new. In Canada African Canadians has had to endure a legacy of historic disadvantage. Our history in Canada is one of slavery, segregation, economic marginalization, and legally-sanctioned discrimination.

[See generally: Leo Bertley, Canada and Its People of African Descent (Pierrefonds, 1977); Tarnopolsky and Pentney, Discrimination and the Law, (Toronto: Carswell, May 1997 update); and Robin Winks, The Blacks in Canada: A History (Montreal: McGill-Queens University Press, 1971). ]

We have fought to retain our dignity in the face of historic disadvantage, systemic discrimination, legally sanctioned discrimination, and other forms of oppression and repression of African Canadians.

In 1966, the United Nations declared March 21 as the International Day for the Elimination of Racial Discrimination. Canada would like all and sundry to know that it was one of the first countries to show its support, and in 1989 the first Canadian March 21 Campaign was held.

Our struggle continues today. The picture in Canada for racial minorities particularly those who are black remains grim. It was recently reported that Blacks are the target of 48% of racially motivated hate crimes.

See, Losing the battle against anti-black hate crime , Toronto Star, March 19, 2009

The door to equal opportunity and professional advancement in Employment for Black employees, professional and non-professional, is slammed shut. In the legal arena, I still question why it is that difficult for Black males to be admitted to the Law School, and even when successful in law school find suitable and appropriate articling positions and obtain employment with the “Seven Sisters” and other medium and/or mid-size law firms and/or in practice areas in which they have an interest.

The racial composition of the Judiciary, the Crown Attorney’s offices, the police departments, the fire department, the teaching, legal and medical profession are overwhelmingly white and is not reflective of Canada’s multicultural society.

[See, See R. v. Williams (1998), 124 C.C.C. (3d) 481 at 494 (S.C.C.); R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.) and R. v. Wilson (1996), 107 C.C.C. (3d) 86 (Ont. C.A.).]

In the halls and academe of higher education Systemic Racism permeates the University of Toronto, York University and beyond in admission, hiring, application of policy, procedures and disciplinary action and retention.

The same systemic racism is true in the legal profession.

[see, Law Society of Upper Canada, Equity Iniatives Department Publications].

Black are increasingly at the receiving end of frivolous Law Society Complaints:

See Roach v. Long, [2002] O.J. No. 2471 (Ont. Div. Ct.); See also, Hamalengwa v. Duncan; 2005 CarswellOnt 4451; 202 O.A.C. 233, 135 C.R.R. (2d) 251.]

They can include:
• A complaint received from a third party in a litigation matter opposed in interest to the client of the Licensee.
• A complaint received from a third party opposed in interest to the client of the Licensee, in circumstances outside of litigation. Sources of these complaints could be parties involved in negotiations or other transactions, for example in the area of family law, commercial, civil, criminal or quasi-criminal, real estate or labour law.
• A complaint received from a third party in a litigation matter opposed in interest to the Licensee personally. The complaint may relate to the Licensee’s behaviour in either a professional or personal capacity.
• A complaint received from a third party opposed in interest to the Licensee personally, in circumstances outside of litigation. The complaint may relate to the Licensee’s behaviour in either a professional or personal capacity.
• Information received from a third party who is not necessarily opposed in interest to the Licensee but is also not a client of the Licensee (e.g. a member of the judiciary, a government official or the media).

Blacks are being assaulted, shot, injured and killed by the police in disproportionate number. Inequitable treatment and racial profiling by police services of blacks in the Greater Toronto Area continues unabated.

See, Nassiah v. Peel (Regional Municipality) Services Board, [2007] HRTO 14 and David Tanovich, The Colour of Justice: Policing Race in Canada (Toronto: Irwin Law, 2006); “Racial Profiling” in Policy and Guidelines on Racism and Racial Discrimination (Ontario Human Rights Commission) (9 June 2005); Melchers, “Inequality before the Law: The Canadian Experience of ‘Racial Profiling’” (2006); Gold, “Media Hype, Racial Profiling, and Good Science” (2003), 45 Can. J. Crimin. & Crim. Just. 391; Gabor, “Inflammatory Rhetoric on Racial Profiling Can Undermine Police Service” (2004), 46 Can. J. Crimin. & Crim. Just. 457; Wortley and Tanner, “Inflammatory Rhetoric? Baseless Accusations? A Response to Gabor’s Critique of Racial Profiling Research in Canada” (2005), 47 Can. J. Crimin. & Crim. Just. 581.

Racial discrimination and harassment of black and native correctional officers and inmates in Ontario’s correctional facilities continues unabated.

See, Charlton v. Ontario (Ministry of Community Safety & Correctional Services) 2007 CarswellOnt 4099. See also, Racism Behind Bars: A Brief to the Commission On Systemic Racism in the Ontario Criminal Justice System (OPSEU); 1994 Racism Behind Bars: Interim Report of the Commission On Systemic Racism in the Ontario Criminal Justice System; January 1994 Executive Summary: Racism Behind Bars- The Treatment of Black And Other Racial Minority Prisoners in Ontario Prisons; March, 1996 Racism Hurts!: A Brief to the CLC Task Force On Racism, (OPSEU); October 21, 1996; Ontario Correctional Services – Culture and Human Resources Review- Final Report; January 2, 2002.

Impermissible Racial Profiling of Black Canadian Citizens at Port(s) of Entry in Canada continues unabated with the full sanctioning and support of the Canadian Government.

See, Racial Profiling: Racism in Practice? CBA. See also D.M. Tanovich, “E-Racing Racial Profiling” (2004), 41 Alberta Law Review 905 at 929-931 and “Using The Charter To Stop Racial Profiling: An Equality-Based Conception Of Arbitrary Detention” (2002), 40 Osgoode Hall L.J. 145 at 181-183.

The Criminal Justice System in Ontario is systemically racist in its treatment of black and Native Peoples and how it stereotypically view people of these races:

See, Janet Mosher, Discrimination and Denial: Systemic Racism in Ontario’s Legal and Criminal Justice Systems, 1892-1961 (Toronto: University of Toronto Press, 1998); Chan and Mirchandani, Crimes of Colour: Racialization and the Criminal Justice System in Canada (Peterborough, Ont.: Broadview Press, 2002);

Justice Arthur Gans reportedly told an accused before him “If you transgress, I’m going to make sure that the next shower you take, there’s going to be some big black guy right behind you. Do you understand me, young man?”

See also, Tanovich, “The Further Erasure of Race in Charter Cases” (2006), 38 C.R. (6th) 84 and Francis Henry and Carol Tator, Racial Profiling in Canada: Challenging the Myth of “A Few Bad Apples” (Toronto: University of Toronto Press, 2006).
On the issue of sentencing, see R. v. Ramsay and R. v. Hamilton (2004), 22 C.R. (6th) 57. See also T. Williams, “Sentencing Black Offender In The Ontario Criminal Justice System” in J.V. Roberts and D.P. Cole, Making Sense of Sentencing (Toronto: UofT Press, 1999); and, D.E. Roberts, “The Social And Mass Cost Of Mass Incarceration In African American Communities” (2004), 56 Stanford Law Review 1271.

African Canadians and other racialized groups rely upon legislatures and courts for the protection and promotion of their equality rights in all areas, but more specifically in the employment sector. Since 1950, successive governments in Canada have attempted to end discrimination in many sectors of life.

In Ontario, the Ontario Human Rights Code has been the main legislative vehicle in this regard. However, the eliminating systemic racial discrimination in employment and the provision of services to Black Ontarian remains hallow.

See, Charles C. Smith, Racial Profiling and Law Enforcement in Canada (Toronto: Canadian Centre for Policy Alternatives, 2007).

I say to the Prime Minister, the Premier of Ontario, federal, provincial and municipal politicians stop the hiprocracy. We need action, not self-serving words.

The dismal and shameful record of Canada’s treatment of Black, African Canadians and Native, Aboriginal Canadans speaks for itself.

See, Reber and Renaud, Starlight Tour: The Last, Lonely Night of Neil Stonechild (Toronto: Random House, 2005); Chan & Mirchandani, Crimes of Colour: Racialization and the Criminal Justice System (Peterborough, Ont.: Broadview Press, 2002); “The Impact of Racial Profiling on the Aboriginal Community” in Paying the Price: The Human Cost of Racial Profiling (Ontario Human Rights Commission) (2003)

Now take action to implement social, legal, political and economic changes to end the conditions in Canada that continues to foster the subordination and racial oppression of African Canadians in Canada.

For those of us who are true, committed anti-racist, we must continue to fight against all of the evils of racism which evident within our society. We are not the first to fight this battle. We do not want the next generation to have to fight this battle again.

March 21 is a time for us to re-dedicate and re-commit ourselves to fight any and all social injustices that isn’t beneficial to the society in which we were brought up [and in which some of us has adopted as our home].

Selwyn Pieters is a Barrister & Solicitor. He has a special interest in Charter litigation, International and domestic human rights law and policy, administrative law and issues surrounding anti-Black racism including racial profiling. Selwyn can be reached at:
Selwyn A. Pieters, Barrister & Solicitor, P.O. Box 518, 31 Adelaide Street East, Toronto, Ontario. M5C 2J6. Tel: 416-787-5928 (work). Email selwyn.pieters@utoronto.ca.

What law firms are looking for

Wed, 25 Feb 2009 18:43:37 GMT

Léna Taylor, Director of Student Programs at McCarthy Tétrault, answers your questions, Law students and new lawyers have a variety of things to worry about, from finding a job in this job market, to figuring out what kind of law they’d like to practice, especially with rapidly emerging areas offering opportunities for specialization. Then there’s [...]

Léna Taylor, Director of Student Programs at McCarthy Tétrault, answers your questions,

Law students and new lawyers have a variety of things to worry about, from finding a job in this job market, to figuring out what kind of law they’d like to practice, especially with rapidly emerging areas offering opportunities for specialization. Then there’s the crystal-ball question: What areas of practice will be strong in the near future?

Send your questions for Ms. Taylor now to jump the queue, or join us live on Feb. 27 from 1-2 p.m. ET.

h/t Gillian Moody

The Wall

Mon, 23 Feb 2009 03:19:26 GMT

The Wall has to be one of the most common reasons people don’t pursue their academic careers further than they do. Almost all people run into it eventually. Most of us hit it in undergrad, and the remainder hit it in post-graduate or professional school. It’s easy to tell who never hits it because they’re now [...]

It’s easy to tell who never hits it because they’re now our professors. Their lust for knowledge has clearly enabled them to not only survive with their sanity intact, but enjoy a life of perpetual academia. But they’re obviously a minority.

To state the obvious, I didn’t even come close to it in undergrad. And nearing the end of my first year of law school I was still saying something I would never have said otherwise: “I won’t hit it.”

I think I finally have, and the purpose of this post is to warn everyone that you probably will too.

Upon hitting the wall, pretty much everyone pushes through and perseveres until they graduate. Rather than drop out we tend to just finish what we started and move onto bigger and better things, but unfortunately we all have to burden our friends and family with constant whining until we’re finally sporting black robes and marching across the stage at convocation, ready to whine about something else for a change.

Symptoms of hitting the wall include constant fatigue, difficulty paying attention in class, increased tendency to procrastinate (that is, even more than usual), increased frequency of foul language and repetition of obnoxious complaints such as “I can’t take this anymore,” and “I just wanna be done already!”

I guess the reasons one might hit the wall can vary. Most just get tired of the stress. Some are anxious to become productive members of society, or see law school as a means to an end and just want to get on with the “career” aspect of their legal education. Others are drowning in the guilt of having mooched off of parents for the past several decades. Others still are looking forward to days that actually come to an end, such as, for example, a work day that ends at 5:00pm as opposed to a study day that superficially ends when they leave the library but really doesn’t end until they’re unconscious in bed and unable to worry about it until morning.

Personally, the infamous CUPE 3903/York University stand-off might be what did it for me. No, I don’t think the school is any less capable of delivering a quality education to its students, and no, I don’t think any other academic institution is any less likely to suddenly experience such an event. The fact is that it spoiled me, and now things are back to normal.

For three months I enjoyed a near-empty law library without having to tell anyone to shut up or leave, absolutely no line-ups at campus coffee shops and restaurants, an extended and less stressful semester, independent study without the guilt that comes with skipping lectures, and for the first time, feeling like anything other than salmon while making my way through the normally over-crowded hallways of York.

Life was good. I urge all law students to give that life a shot should they get the chance. But once it’s over and things are back to “normal,” you’re probably going to be fed up enough to hit the wall, if you haven’t already.

A New MOFO For A New Year

Mon, 12 Jan 2009 15:50:13 GMT

Middle Passage Law Series Hahahhahahhahah…. I know what you are thinking but no not the expletive. MOFO is in fact short for the law firm of Morrison & Foerster. I was wondering how best to kick off the New Year with the Middle Passage Law series and I thought it best to start off with positive news. A [...]

Middle Passage Law Series

Hahahhahahhahah…. I know what you are thinking but no not the expletive. MOFO is in fact short for the law firm of Morrison & Foerster.

I was wondering how best to kick off the New Year with the Middle Passage Law series and I thought it best to start off with positive news.

A new MOFO for a New Year refers Trevor James, a UK tax partner in Morrison & Foerster who has been elevated to managing partner in the firms London office. And oh yeah Mr. James just happens to be black.

This is a first for an international law firm.

Please do not miss read this post, it isn’t that UK law firms are light year ahead of their Canadian counterparts in terms of black diversity - for they are not as the UK based Black Solicitors Network’s 2008 diversity league table makes clear. However, UK law firms and legal establishment are ahead of their Canadian counterparts in two significant ways worthy of note.

The first of these is Mr. James’ appointment - earned on merit.

What is the probability of such an appointment at a Canadian national or international law firm in the near or medium term?

To be honest I just don’t see it happening but I could be wrong - in fact I want to be wrong.

The second area to note is the fact that such a thing as a diversity league table exists.

It is not that Canadian law firms or the larger legal establishment does not measure diversity - for the do. However, on closer examination it will be observed that these measurements are largely confined to gender. Don’t get me wrong, this is a good thing and should be lauded; however, I believe that such measures should be expanded to other diversity communities.

Why the comfort with measuring gender and the fear - yes I said fear, because that is the only way I can characterize it - with measuring race?

I really cannot answer this questions it is far beyond my current knowledge and skills - I want to answer it and maybe one day I will.

I didn’t mean to harp on the negative but I just wanted to make you aware, that is if you were not already, of all too real an issue.

So back to the positive.

I wish Mr. James - A New MOFO For A New Year - all the best and I hope that his current and future successes will serve as a shining example of what is possible.

Your Paralegal Has a Better Job than You Do

Thu, 08 Jan 2009 20:41:49 GMT

Sounds strange, but it’s true, according a new comprehensive ranking of jobs by JobsRated.com. Five different criteria were used in the rankings: Stress Work Environment Physical Demands Income Outlook Although lawyers made more money than paralegals, other job factors brought lawyers way down on the list. Debra Cassens Weiss of the ABA Journal explains, Lawyers and stockbrokers, ranked 84th, both did poorly, and the [...]

Sounds strange, but it’s true, according a new comprehensive ranking of jobs by JobsRated.com.

Five different criteria were used in the rankings:

Stress
Work Environment
Physical Demands
Income
Outlook

Although lawyers made more money than paralegals, other job factors brought lawyers way down on the list.

Debra Cassens Weiss of the ABA Journal explains,

Lawyers and stockbrokers, ranked 84th, both did poorly, and the reason is stress, the editors say. “Attorneys and stockbrokers may earn considerably more than bookbinders or telephone repair technicians [ranked 83rd and 81st respectively], but these high-powered careers are hurt by anxiety, as both rank among the 20 most stressful jobs on our list.”

So once you’ve finally paid off your law school debts, you might want to start searching for a new job - as a paralegal.

The “Art” of the Cross-Examination

Tue, 06 Jan 2009 13:03:06 GMT

Peter Small of The Star has a great article today on cross-examinations. He interviews several lawyers for tips that can be useful for any aspiring litigator. He also provides these 10 tips by Irving Younger: 10 COMMANDMENTS OF THE CROSS Be brief. Use short questions, plain words. Always ask leading questions. Don’t ask a question to which you do not know [...]

Peter Small of The Star has a great article today on cross-examinations. He interviews several lawyers for tips that can be useful for any aspiring litigator.

He also provides these 10 tips by Irving Younger:

10 COMMANDMENTS OF THE CROSS

Be brief.
Use short questions, plain words.
Always ask leading questions.
Don’t ask a question to which you do not know the answer.
Listen to the witness’s answers.
Don’t quarrel with the witness.
Don’t allow the witness to repeat his or her direct testimony.
Don’t permit the witness to explain his or her answers.
Don’t ask the “one question too many.”
Save the ultimate point of your cross for summation.

10 Things You Won’t Learn in Law School

Sat, 27 Dec 2008 04:24:53 GMT

Gideon at a public defender, a popular Connecticut criminal law blog, told me recently, Whatever your professor tells you, do the opposite. I thought the statement was slightly extreme, but I did ask him what the best way to learn was and he said, “through osmosis.” I did find this post he pointed me to somewhat interesting: Look, [...]

Gideon at a public defender, a popular Connecticut criminal law blog, told me recently,

Whatever your professor tells you, do the opposite.

I thought the statement was slightly extreme, but I did ask him what the best way to learn was and he said, “through osmosis.” I did find this post he pointed me to somewhat interesting:

Look, law school taught me a fair bit. I won’t lie. It taught me that even grown-ups can get drunk and get in fights at local bars. It taught me that my fellow lawyer isn’t much smarter than me and will one day become really famous. It taught me that you can fake your way through almost anything.

But here are ten things it didn’t teach me:

Nobody ever uses the phrase “black letter law“. Seriously. Lawyers who do use the phrase “black letter law” are usually laughed at by cliques of other lawyers. This is an invention of professors, I’m sure, meant to intimidate and harass poor first year students. Black letter law? Is that some Rules of Court book?
That you will forever be haunted by names of cases, but not remember a damn thing about the case itself. Who here can tell me about Helicopteros or International Shoe or Pennoyer or Dudley and Stephens? (Okay, that last one is really cool - it’s about cannibalism). Wasn’t there a Vana White case?
How to pick a jury.
There is no box. Law school professors keep telling you to think outside the box. What they don’t tell you is that there is no box.
That law review leads to document review. If you want to do real work, take a clinic or something.
Your clients will hate you. They will think they are smarter than you. They will try to tell you what to do.
How to deal with #6 above.
Most judges haven’t practiced in a while, so forgive them if they make stuff up as they go along.
Caselaw and precedent may or may not mean much until you get to an appellate court. And even then…
Finally, no matter how long you practice or what you do, there will always be more to learn and ways to better yourself.

Mitch Kowalski, Man to Watch in Tough Legal Times

Wed, 24 Dec 2008 01:37:52 GMT

Last week I met with Mitch Kowalski of the Legal Post. He mentioned our conversation earlier today on the site, which is the kick in the butt I needed to do my own write-up on it during our break from school. Mitch is an alumn from my school, Western Law, but has chosen a career path [...]

Mitch is an alumn from my school, Western Law, but has chosen a career path unique from most. After practicing for many years on Bay St. he decided to open a writing center, first at Yorkville, and then moving to a more central location on Bloor West.

And just like those television infomercials, Mitch not only runs the place, but he’s a client too.

Mitch’s column on the Legal Post (RSS) has become a popular one among many lawyers and law students wary of these tough economic times.

Mitch forecasts that current graduates (2009) will probably have it the worst because nobody really knows what to expect. Canadian law school grads might just be fighting for shifts at Tim Horton’s for a few years. They should probably be looking at other careers such as NGOs or trying their hands at magic. In any case, it’s probably still better than doing porn.

Major law firms continue to be in denial in a scenario scarier than Halloween. Most of these firms have come into existence well after the Great Depression, and their size has never been tested by a serious and prolonged recession.

The problem is that lawyers don’t have a lot of work during a recession.

Some of the potential growth areas such as labour and employment, IP, and even bankruptcy and insolvency, won’t make up for shortages in major corporate work that employs massive numbers of lawyers within the major firms.

With every economic threat there are also opportunities, and Mitch thinks this is an opportunity to transform the legal profession. The very nature of law firms may change, with some even incorporating other professionals like accountants into their partnership structure, and others even going public.

Cost-saving may force firms to look overseas, instead of using inexpensive articling students (who get paid just over twice minimum wage in some firms when salary/hours is calculated).

The days of sending armies of students to the law library to photocopy into the wee hours of the morning may be ending, because these students still cost too much resources for their office space, workstations and training. Overhead from downtown rent continues to be one of the major costs after salaries in most large law firms. Associate turnover due to burnout and mismanagement is completely ignored and accepted as the price of doing business.

The billable hour also attracts considerable wrath from Mitch’s scrutiny.

Naysayers might shun worrying over the ’sky is falling’ rhetoric. New grads might feel like they’ve been slipped a mickey by the legal industry. But those who want it raw and are entering the brave new economic world willing to turn to the blogs for advice, Mitch’s column is a good place to start for a translation of things to come.

The Legal Post is also up for an ABA Award, and you can vote for them here to help make Canadian blogs a prominent landmark in the legal blogosphere.

Cross-posted to Slaw

US Lawyers Predict the Future, in a Recession

Wed, 17 Dec 2008 19:18:40 GMT

We previously mentioned the ABA survey on the economy. Well here are the results from the almost 1,500 lawyers who responded.

We previously mentioned the ABA survey on the economy.

Well here are the results from the almost 1,500 lawyers who responded.

Tip: Don’t Use Fake Degree to Apply to Law School

Sat, 13 Dec 2008 14:20:22 GMT

Okay all you eager undergrads who read our site faithfully, here is the best tip we could ever give you regarding your law school applications. Do not, under any circumstances, try to use a fake degree to apply to law school. Chances are it will catch up with you eventually. Quami Frederick made it all the way [...]

Okay all you eager undergrads who read our site faithfully, here is the best tip we could ever give you regarding your law school applications.

Do not, under any circumstances, try to use a fake degree to apply to law school. Chances are it will catch up with you eventually.

Quami Frederick made it all the way to her third year in Osgoode Hall before the Toronto Star found her out. She was even scheduled to article at Wilboer Dellelcce next year, the firm that has no billable hours, their own building, and a gym inside the office.

She had applied to Osgoode with a B.Sc. in Business Administration from St. George’s University in Grenada. The university exists, her degree does not.

She was one of the 290 students accepted from the 2,500 that applied that year. But when your degree is fake, grade inflation probably isn’t a major issue.

Fredrick is one of many people The Star uncovered as using a degree from a diploma mill, where a fake degree is forged from a real university, or an entirely fake university is created. (No Steyn, that’s not an option for you either)

Chances are Fredrick won’t be able to finish her law degree this year given her admission was premised on a false academic background. She also probably fails to meet the values expressed on her firm’s website,

Our firm’s greatest strengths are its people and the environment of care and mutual respect that they have created for one another. It goes without saying that to be a success in the Bay Street legal world, you must possess intelligence, integrity, dedication, some common sense and you must work very hard.

The upside is that Wilboer Dellelcce probably has an opening right now if you’re your third year and looking for a place to article in Toronto. Try contacting Kevin Fritz at 416 361 2933 or James Brown at 416 361 2934.

Sleep Your Way Through Law School

Sat, 13 Dec 2008 03:11:41 GMT

From the people who brought you Speed Read Your Way Through Law School, we bring you - nap time. A new study found that napping boosts sophisticated memory. It also helps you to see the big picture. These 10 Tips can help you sleep better. They recommend more eating, doing your work in your sleep, and “lucid” [...]

From the people who brought you Speed Read Your Way Through Law School, we bring you - nap time.

A new study found that napping boosts sophisticated memory. It also helps you to see the big picture.

These 10 Tips can help you sleep better. They recommend more eating, doing your work in your sleep, and “lucid” dreams (smile). Hey, law school wouldn’t be so bad like this:

10. Reduce Screen Time Before Bed

9. Exercise to Enhance Sleep

8. Eat to Enhance Sleep

7. Master the Power Nap6. Avoid the Soul-Shattering Alarm Buzzer

5. Solve Problems in Your Sleep

4. Beat Insomnia with Visualization

3. Shortcut a Long Nap with the Clattering Spoon

2. Take a Caffeine Power Nap

1. Teach Yourself to Lucid Dream

Before you get too concerned, keep in mind that nap rooms in law firms have been discussed before.

Though there are probably too many lucid thoughts running around law firms as it is, without the installation of places to “sleep.”

h/t Martha Sperry of Advantage Advocates in Boston

Med Students Think They’re Isolated? Hah, Pansies!

Fri, 12 Dec 2008 19:26:33 GMT

A study a couple months ago indicated that medical students are socially segregated from each other. The reasons included: High workloads school located outside the main campus High numbers of contact hours, outside the university This seems to indicate that contact, inside the university, would alleviate the problem. They should learn a lesson from law student and quickly discover otherwise. The [...]

A study a couple months ago indicated that medical students are socially segregated from each other.

The reasons included:

High workloads
school located outside the main campus
High numbers of contact hours, outside the university

This seems to indicate that contact, inside the university, would alleviate the problem. They should learn a lesson from law student and quickly discover otherwise.

The drawbacks of this supposed isolation included:

Being a member of a cohesive in-group can increase an individuals feelings of self-worth and lead to perceived superiority over, and prejudice and discrimination towards, members of out-groups
It lessens integration with clients, who come from a broad section of society
They usually have to work within other professionals
Communication is an important skill for dealing with members of the out-group

The sense of superiority in law often leads to a self-selection of dealing with certain members of society, which is probably why pro bono goes the wayside far too quickly.

The CBC reported recently that we should improve medical students’ learning environment by providing sleep breaks. Well, law firms already encountered and overcome that hurdle.

As for working with others and communication, well, all of that is overrated by too many law firms.

Remember this?

Experienced lawyers work with clients. Young lawyers work with paper. You like working with paper, right?

Professional Conduct and Free Speech concerns

Fri, 05 Dec 2008 16:07:56 GMT

One of my strongest memories of my entering canada were that the moment I switched on the TV, I saw an advertisement of a personal injury law firm. A few minutes after that I saw the advertisement of a firm specialising in family law and divorce. Needless to say I was amused. But on a more [...]

But on a more serious note, I started pondering as to the present state of the common law practice of being a lawyer. There used to be a time when lawyers were considered as professionals at par with doctors. This included the fact that lawyers (barristers and solicitors) could not advertise in public fora and at all times were to remain as ‘gentlemen and officers of the court’. The reasons given for this rule were the nobility of the legal profession and the fact that the power that a lawyer can give to his client, and conversely take away from a person who is not represented, is enormous. As a display of ethics, lawyers were not to be driven by concerns for money but by the manner in which they treated their clients and conduct in the courtroom. In time, this ban was lifted in England for solicitors but Barristers were still strictly bound by it. Such practice extends to other common law jurisdictions like India where even today law firms and lawyers are not allowed to advertise publicly. The rules even state that a lawyer in India cannot give his visiting card away without someone asking for it.

For all concerns of free speech and that the right to advertising is a part of free speech, there is still a plausible case as to why law firms should atleast maintain a strict protocol as to the manner of their advertising. The starting point of this analysis would be a suit brought somewhere in the US by a wife stating that the lawfirm’s advertising was responsible for the fact that her husband now wants to divorce her. The facts that I am somewhat aware of are that after strenously advertising in the television, the firm hired a marriage counsellor for the husband at its expense to tell him that his marriage wasn’t working and that he should divorce. Ridiculous as it may sound, it is true. This has later been dramatised in an episode in the TV show Boston Legal.

But let us fathom as to what we get out of this case. If we acknowledge that a lawyer has a great ability to influence his client, can the nobility of the legal profession and ethical concerns be downplayed by the idea of free speech? Is there still a belief in the nobility of the legal profession ? Gone are the days when barristers in common law countries would wear wigs and Queens Counsel would be appointed with special robes given to them. But splitting for common law practice in that manner cannot justify the manner in which advertising is taken up in Canada and the US. What happens when officers of the court and players in the justice system overtly employ tactics to destroy the institution of marriage, when personal injury lawyers are available at the dial of a single number displayed on TV to reduce the defendant, who may even be your relative to penury?

With this single instance in mind, I do not advocate for a ban in advertising but surely believe in the fact that some standards must exist to do so.I personally believe in the integrity and dignity attached to the legal profession and that such actions destroy it.

what I have written above is with a background of the Common law tradition of being a lawyer and not with any Ontario or Canadian legal provision in mind. If there do exists any standards to that effect, I’d be glad to know.

Cross posted from The Social Blog .

10 Things You Shouldn’t Put in an E-mail

Wed, 03 Dec 2008 01:28:09 GMT

Roger Mathus of Death by Email quotes Elizabeth Charnock, CEO of Cataphora on 10 things you should probably never write in an e-mail: “I could get into trouble for telling you this, but…” “Delete this email immediately.” “I really shouldn’t put this in writing.” “Don’t tell So-and-So.” Or, “Don’t send this to So-and-So.” “She/He/They will never find out.” “We’re going to [...]

Roger Mathus of Death by Email quotes Elizabeth Charnock, CEO of Cataphora on 10 things you should probably never write in an e-mail:

“I could get into trouble for telling you this, but…”
“Delete this email immediately.”
“I really shouldn’t put this in writing.”
“Don’t tell So-and-So.” Or, “Don’t send this to So-and-So.”
“She/He/They will never find out.”
“We’re going to do this differently than normal.”
“I don’t think I am supposed to know this, but…”
“I don’t want to discuss this in e-mail. Please give me a call.”
“Don’t ask. You don’t want to know.”
“Is this actually legal?”

He suggests that if you find yourself writing this, you probably shouldn’t do it to begin with.

h/t to Anne Reed, who adds “do not forward,” Walter Olson, and Pete Warden.

7 Ways To Lose An Argument Before It’s Started

Fri, 21 Nov 2008 20:51:31 GMT

Jonathan Fields provides 7 things you don’t want to do if you want to win an argument. For most advocates, that’s usually an important thing: Don’t Attack Don’t fail to acknowledge and validate another person’s right to believe what they believe Don’t fail to anticipate and address objections Don’t skip building rapport, trust, credibility Don’t forget to to adequate research Don’t [...]

Jonathan Fields provides 7 things you don’t want to do if you want to win an argument. For most advocates, that’s usually an important thing:

Don’t Attack
Don’t fail to acknowledge and validate another person’s right to believe what they believe
Don’t fail to anticipate and address objections
Don’t skip building rapport, trust, credibility
Don’t forget to to adequate research
Don’t shut yourself down to being persuaded yourself
Don’t say don’t

Life Beyond OCI - Not the Only Option

Sun, 16 Nov 2008 03:09:20 GMT

On Nov. 14, the Career Services office at UWO Law held a session On Campus Interviews - Not the Only Option. Some of our contributors attended and provided their notes from the event below. There are some general concerns about the economic climate, which has translated into a job shortage in some sectors. But generally Western students [...]

On Nov. 14, the Career Services office at UWO Law held a session On Campus Interviews - Not the Only Option.

Some of our contributors attended and provided their notes from the event below.

There are some general concerns about the economic climate, which has translated into a job shortage in some sectors. But generally Western students performed well in job searches, better especially in comparison to other law schools, despite what some law school rankings might say.

Students should not panic if they did not get a summer job for second year through the OCI process. There are about 300 other law firms they can apply to. It’s also an opportunity to do some self-reflection and career planning, to be sure you know where you want to go in law.

Students can seek out options to improve their candidacy. They can build their resume, or try to improve their grades. They can network at free events, or even with upper year students.

Areas of self-reflection include what went right, but also where they can improve. Students should ask themselves what do they want in life, and if their career aspirations are realistic.

Things to consider include the location of a firm, its size, practice areas, lifestyle and work environment. There are lots of options for barristers in smaller towns.

Alternative ways to find jobs include looking for job postings, mail outs and cold calling, and networking generally.

Potential employers they may not have considered are other firms, large and small; government, such as the Department of Justice (DoJ) and Ministry of the Attorney General (MAG); businesses and corporations; non-profit organizations like Legal Aid Ontario and NGOs like PSLawNet; and educational institutions or universities.

The articling and clerking recuitment deadlines are slightly different and should be kept in mind. Clerking deadlines are in December/january, and articling deadlines are May/July.

Resume building can be accomplished through volunteering, clinics, publications, internships and exchanges, clubs, extra-curricular activities, and advocacy competitions.

Some final words of advice were to stay positive, be proactive, and think outside of the box.

Meeting the Man Behind “Lawyers are Rats”

Wed, 12 Nov 2008 08:09:40 GMT

After gaining a hard-earned acceptance to law school, there’s nothing like walking into your first day and having your future existence branded as being on a par with that of malign, dirty rodents. Last summer, negative public perceptions of the legal profession were amplified by the release of the book Lawyers Gone Bad: Sex, Money and [...]

After gaining a hard-earned acceptance to law school, there’s nothing like walking into your first day and having your future existence branded as being on a par with that of malign, dirty rodents.

Last summer, negative public perceptions of the legal profession were amplified by the release of the book Lawyers Gone Bad: Sex, Money and Madness in Canada’s Legal Profession and its accompanying Maclean’s article Lawyers Are Rats. Students at the University of Ottawa’s Faculty of Law invited the lawyer credited for these works — retired law professor and ex-Bay Street partner Philip Slayton.

Mr. Slayton’s preamble to the talk, akin to the statement on the first page of his book, was that he did not believe that his book’s contents are representative of the legal profession. Instead, his compilation was meant to be an “intriguing and interesting collection of stories about human folly”, about lawyers in the face of moral quandaries.

But no page in his book unnerved members of the legal world more than his interview with Maclean’s magazine. Having arrived at newsstands with its sensational blanket title, the article roused an outraged Canadian legal community. While Mr. Slayton denied responsibility for the title, he admitted to being satisfied with it — “who’s actually going read an article with a title ‘A Small, Minute Subset of Lawyers Are Rats’?”.

The article has been since criticized by the Canadian Bar Association:

By cherry-picking the worst cases of lawyer misconduct, the article has tarnished the reputation of thousands of professionals who are honest, hard-working, and community-minded people.

Former CBA President J. Parker MacCarthy, Q.C. underscored what is of focal concern:

The unspoken assumption that lies behind the cover and article: that you can say anything you want about lawyers — no matter how unfair, cruel, or false — and you’ll be rewarded… Lawyers are one of the last groups in this country that people feel they can publicly insult with impunity.

The Breeding Ground?
Past the barrage of criticisms, Mr. Slayton emphasized three problems inherent in the Canadian legal profession which underlie the occasional “human follies” of some lawyers:

The duality of student opinion at the talk mirrored the Slayton-CBA tension: a fair number responded to his views with much concurrence — self-identified closeted law students (you know, the ones who have become too ashamed to own up to their legal affiliation in front the rest of the world) expressed concern that Lawyers are Rats would be a self-fulfilling career prophecy for most of their peers, if not for themselves.

The others, like many in the legal community, recognized that while Mr. Slayton’s message was important and warranted attention, his medium was borderline reprehensible. And no one’s giving him a run for his money - no one ever writes about lawyers gone good.

- - -
The Slayton Talk was part of a Speaker Series held by Ottawa Law Students Aren’t Rats (OLSAR), a UofO-based community service organization created to reverse the perception of lawyers which Slayton’s book and article have left in the public eye.

Great Reasons Why Every Law Student Should Blog

Mon, 10 Nov 2008 04:21:10 GMT

To follow-up on our previous post about the benefits of legal writing - and blogging in particular - I found this rather timely post over at The Frugal Law Student. Brett McKay writes: Blogging has definitely helped my legal writing. When you write for a blog, your audience consists of internet users who have the attention span [...]

To follow-up on our previous post about the benefits of legal writing - and blogging in particular - I found this rather timely post over at The Frugal Law Student.

Brett McKay writes:

Blogging has definitely helped my legal writing. When you write for a blog, your audience consists of internet users who have the attention span of a gnat. You have to capture their attention and maintain it through good solid writing. When you write on a blog, you want to use short sentences and paragraphs; you want to tell a story that draws people in; and you want organize your writing with headings that make it easier for the reader follow.

Do these tips sound familiar? It’s the exact same thing you’re supposed to do in legal writing! By blogging consistently, you can improve your legal writing immensely.

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