Thoughts from the Honourable J.E. Côté: Copies vs. Originals

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Nov 102016
 

The Honourable J.E. Côté

In today’s blog, the Honourable J.E. Côté shares his thoughts on copied vs. original documents, including the 13 dangers of copied documents.

Happy reading!


Each decade, a new technology gives us more convenient mechanical or electronic ways to reproduce or store written material. Lawyers and their clients make more and more use of them. It has become common to see most written material in such machine-made forms. Indeed sometimes there is no real “original” of some record in the traditional sense. Machine-made versions are all there are or ever were.

Relying on Copies

Should lawyers therefore stop asking if there ever was an “original” and simply rely on various types of copies or transmitted versions? Is an electronic version, a scan, or a photostat, always as good as the original?

This question arises in more than one context. It comes up in litigation: civil discovery of records, or criminal or family law disclosure, comes from one side to the other. The question also applies to taking instructions from clients or semi-clients, and getting admissible evidence of various things.

Much of what a solicitor does also raises such “copies” questions; conducting due diligence searches and inquiries, and securing documents needed to close a transaction.

Legal Admissibility

To see whether a copy is good enough, you first have to go to the law. At common law, a copy of a document is not admissible in evidence. There are some common-law and statutory exceptions, and maybe the principled exception to hearsay might apply. But those exceptions eat away only certain corners; most copies of documents are inadmissible. And the boundaries of admissibility are very unclear.

You Have a Choice

Whether a copy is good enough also depends on balancing practicalities and risks. A practising barrister or solicitor rarely needs to demand perfection. Therefore, often it is no longer reasonable to insist on personally inspecting the original of every record. Especially if the records are numerous, or if the originals are not Readily readily accessible.

However, some records are not voluminous, and some originals are not hard to get. Sometimes you (or a junior) can see originals with one phone call and a few blocks’ walk to another lawyer’s or client’s office.

Even if there is a mass of records, often only a dozen or fewer are truly important.

That is true of closing a financing or sale, and true of civil or criminal litigation. For instance, what if a client is spending serious money to get an assignment of a building lease, or a mineral lease, or to become a subtenant? Then the head lease is almost everything. Or if the client is lending money in return for a first charge, a postponement of existing charges is critical. The client would not lend on a second or third mortgage. And very often the client will not lend without fire insurance. Businesses are sometimes bought largely for their goodwill. That in turn often comes from a trademark or a franchise. Those are documents.

When the original records are reasonably available and few in number, or really important, what should you do? Call for originals? Or try to look sophisticated and modern by asking for a scan?

I suggest that in such situations you should exert real efforts to see the original important document, and not rely upon any kind of copy. Even one which purports to be an exact reproduction, such as a photostat, a faxed copy, a scanned copy, or an unsigned copy printed from the computer which made the “original”.

What if you cannot manage to see the original of such a vital document? Then you should warn your client that there is a risk, and your opinion to your client must be qualified.

Dangers of Copies

Why are exact copies of important records not nearly as good as the original? There are 13 reasons.

1. Copying usually degrades quality of image, especially where you have a photostat of a fax or scan, especially if the original had physical peculiarities. (See items numbered 2 and 4 below.) Typically the Court of Appeal gets almost unreadable derivative copies of the vital documents. A properly-set scanner will produce what is just like a xerox; sometimes the scanner is a xerox machine. But scanners are often set for pictures, with low resolution. The result is a foggy dotted picture, like an old-fashioned newspaper photograph.

2. Copies or scans often omit some of the original writing or later endorsements, rubber stamps, or annotations. Copies probably will omit writing on the back, near a margin, under a flap or fold, or in pale ink. Few clerical assistants hand feed into a copier or scanner, page by page, looking at the backs. So backs of originals are very often not copied or scanned. And it is quite common for a scanner or copier’s feeder to run two pages through together. The usual result is not reproducing one page. Conversely, what looks like one record may actually be two: one short one and the bottom only of a different record. A schedule may be omitted. If one detects that omission in the copy, one does not know whether the original ever had it, and so was enforceable or not. I have seen a xeroxed key trial exhibit turn out to omit vital legal terms, because the exhibit was a xerox of only one side. The lawyer who insisted on an original won that issue.

It is very common to get multiple copies of the key contract, yet no one can find a signed one. No one is sure that it ever was signed, or can prove that it was. In practice I saw that problem frequently.

3. You cannot tell if part of the document is missing, which a jagged or perforated edge or staple or punch holes would show.

4. A computer asked to reprint a record will usually re-date it, and it may well attach later things not originally attached. Or both!

5. You cannot tell whether the “original” was a duplicate part of a set. Nor whether it was itself a reproduction and not really an original. So an obvious sign of a missing record becomes invisible. I have seen the key “missing” second order in a lawsuit get overlooked by one side for that reason.

6. Any kind of erasure or alteration (innocent or wicked) or outright forgery, is almost impossible to detect in a copy or scan. Yet it may be obvious on the original (if it exists at all). Probably no expert will opine as to the genuineness of a xerox of a signature. Nor can one tell what the document said before the erasure or alteration. Indeed a “file copy” of a letter does not prove that there was an original, or that it was sent.

7. A copy does not disclose whether the original record is crisp and new, or worn, and whether it once was part of a book or a file or a bigger record. Pages may be in the wrong order, or inside the wrong document, or with the wrong backer or cover, or the cover may be omitted. If signatures are on one page, but all the content on another, and the original obviously has been stapled and unstapled many times, what worth are the signatures? None of that shows up on a copy. I have seen a huge lawsuit fail for that reason.

8. You cannot tell what record was attached to or enclosed with another one, such as a covering letter. That is often a very important issue in commercial litigation.

9. Even if a perfect copy was made, after it was made the original may have been altered, revised, cancelled, surrendered, pledged, deposited, or sold to a new party (with or without endorsement). Promissory notes or cheques are still used. Sometimes a copy (such as a term deposit or a share certificate) has no legal effect; only the original does. I have seen most of those things happen and go undetected because people relied on copies.

10. In my own experience, all types of copy fairly often gravely degrade physically (ink or paper or both) after about 15 years. That includes the most modern printing or copying methods, which we now call laser printing. And it is true of electronic records on drives or discs.

11. Different inks or entirely different colors often look identical on a copy. Or one may not copy at all, and disappears, especially if the paper of the original was colored.

12. From a copy you have no idea what type of writing or printing or ink the original used.

13. A copy is never the identical size of the original, and it can be dramatically different. People often shrink copies for convenience.

Conclusion

Decide what few records really matter. Do that while there is still time to get originals. Try hard to get, or at least see, those important originals. If the other side does not produce them, ask searching questions, and warn your your client.


If you are interested in submitting a blog post relevant to Alberta’s legal community, please contact Andrea Maltais, Communications Coordinator at andrea.maltais@lesa.org.

The Honourable J.E. Côté on Use of Precedent

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Oct 192016
 

The Honourable J.E. CôtéJunior lawyers and articling students are often asked to look up case law for use in court. Sometimes they go to court and persuade judges or masters with such case law. If you generate or consume such research, what aspects should you be looking for?

In today’s blog, the Honourable J.E. Côté shares his thoughts, answering this question and more.

Happy reading!


Fact Precedents

First, precedents should be about law. A previous case, which merely has similar facts to yours, is usually not very good. In theory it may be of little use because its ratio decidendi does not correspond. And case law holds that factual precedent is of little value. Even though buckets of such cases are often futilely cited in sentencing and personal injury damages cases. True, case on a similar fact situation is not always totally useless: some judges are comforted by seeing it – but some are not. So a case with the same facts is never never enough.

What Binds

Second, law schools do not emphasize the vital difference between binding and persuasive precedent. But courts do. Harvard does not teach the law of Massachusetts, and may teach the law of nowhere. But Alberta courts find and administer the law of Alberta. And in Alberta what binds is the Supreme Court of Canada (though rarely an old Privy Council case is on point and binds). And if the Supreme Court is silent or equivocal, then what binds is the Alberta Court of Appeal. Binding means not optional. If the ratio decidendi is on point, the judge or master today must follow the higher court’s ratio. Even if it is old or sounds old-fashioned or unsympathetic. Counsel can demand that the new court follow that precedent (phrasing the demand in as tactful terms as counsel can muster). It is reversible error not to follow it.

Dissents are not precedent. That sounds easy, except when the Supreme Court of Canada issues a decision where several judges write separate reasons. How to decide which judge is dissenting and which judge is part of the majority, can get tricky.

The ratios of all Alberta Court of Appeal decisions are binding except for sentencing memoranda of decision.

What Persuasive Precedent Really Persuades?

We all know that often there is no binding precedent. All there is, is a heap of persuasive precedent. Like fishing line, it is usually snarled and knotted. Which cases should one rely upon?

There is no absolute answer to that, because judges differ, both in their approach to case law in general, and in their life experiences and philosophy. For example, some judges think that the latest decision is the best, one 10 years old has a long white beard, and one 40 years old is a collectible antique, not law at all. Some may want to stick to Alberta (or Calgary) law. Others may be enamoured of certain courts or judges, and conversely have coolness toward certain other courts or judges. Counsel cannot know all those things (or in any event would have to know who their judge will be and then do a lot of peculiar computer research beforehand). So where all the case law is persuasive, it’s better to have 3 or 4 good cases, not just one.

Some provinces’ judges pay attention to precedent from other provinces. But judges in some provinces tend to ignore it.

Barring judges’ individual predilections, what other criteria should you use to sift persuasive precedent?

Criteria

First, does the case really persuade? Does it review the countervailing arguments? Does it give convincing reasons to adopt one view and to reject the opposite one? Does the supposedly persuasive precedent contain any flaws in reasoning? If it is flawless and convincing, then the Court of Appeal of South Australia 30 years ago is a much better bet than a terse and superficial recent decision of a B.C. chambers judge.

Second, how thorough is the decision, and does the author of it seem to have looked up enough authority and thought about the matter? Did the author simply rely on authority binding on him or her, but not binding in Alberta?

Third, can that authority be distinguished (in a meaningful way, not a technical one)? Or does the author of that decision say the result could have been different if a certain fact differed? Or decline to decide a certain important issue (e.g. on procedural grounds)? Indeed does that case decide anything general, or just hold that the standard of appellate review is not met so deference is owed to a chambers judge below?

Fourth, are there any factors in Alberta which make law from that other place unsuitable? For example, is that decision founded on a different system of recording title to land? Or a different matrimonial property regime?

Fifth, has the other court issuing that precedent given any indications that its decision has smaller weight as precedent? For example, a brief “Endorsement” by the Ontario Court of Appeal? Or a sentencing memorandum from the Alberta Court of Appeal?

Ethics

Never forget the delicate question of how far counsel must go to satisfy ethical requirements. You must cite any authority contrary to your position, to the court. The penalty is professional discipline or personal costs. Obviously you must cite all binding authority. Debatable or questionable grounds to distinguish do not remove that duty. Dicta of the Supreme Court of Canada should be disclosed. Whether Court of Appeal dicta should be disclosed is less clear. Some persuasive authority should be disclosed, especially if there is little or no binding authority. Not to disclose a unanimous line of persuasive Alberta decisions would be unthinkable. Conversely, a trial-level decision from Alabama in 1912 need neither be found nor disclosed. Nor a brief nisi prius decision from England in the 1840s. Where in between those extremes one draws the line is less clear.


If you are interested in submitting a blog post relevant to Alberta’s legal community, please contact Andrea Maltais, Communications Coordinator at andrea.maltais@lesa.org.

Which Side of the Road?

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Sep 142016
 

The Honourable J.E. Côté

Why do some countries drive on one side of the road, others on the other side?

In today’s blog, the Honourable J.E. Côté shares his thoughts, delving into the origins of traffic law and changes throughout history.


A lot of things in the world become more uniform, such as the language of air traffic controllers. But one of the persisting and inconvenient differences remains. Some countries drive on the right side of the road, others on the left.

At the top of the Khyber Pass, in a wide gorge with steep walls, is the border between Pakistan and Afghanistan. Big signs warn northbound motorists to switch over from the left to the right side of the road. This may be the most dramatic of the few land boundaries in the world where drivers must switch sides. Even so, that certainty is apparently misleading, because now some areas of Afghanistan do drive on the left!

Origins?

Some popular sources talk about which hand a knight carried his sword in. But some of the European countries which had the feudal system drove on the right, some on the left. Were all the knights in some countries left handed? Other popular accounts talk of which horse a postilion rode when he was driving a team pulling a wagon. But that was just custom or riders or horses, so the supposed origin is almost circular reasoning. And again, were postilions all left-handed in some countries?
I have often wondered about the shipping rules, such as two oncoming ships passing port to port. But though those rules were part of English Admiralty law, they more closely resembled modern North American rules of the road. Not English rules.

The English seem to have favored the left for a long time, and the French favored the right. Napoleon’s rule over the Continent converted a number of countries from left to right driving.

One might wonder whether road traffic copied railways. But that is doubtful. A country like Canada did not have many double tracks. And where there were double tracks in the U.S., some railways “drove” on the left track.

What was the Rule?

If we get to actual history, we see that our question, why one country always drove on the left or right side of the road, turns out to be somewhat misleading, even fictional.

In Canada there used to be few or no laws governing which side of the road to drive on. Let us consider Alberta. Maybe bylaws or special legislation governed driving in cities. But elsewhere, the Vehicles and Highway Traffic Act applied, and it governed driving on every road, street, lane, alley, … or public place. I looked at the version of that Act in RSA 1942 c. 275 s. 47(1), and the relevant amendments through 1954. That Act did not give any rule for what side of the road to drive on, except for meeting or passing. (The marked centre line and whether to cross it only came in into Alberta law in the early 1950s, and obviously could not apply to unpaved roads.)

For many years, the only rule was that when meeting an oncoming vehicle, a driver had to go to the right of the centre: s. 47(1). Not at any other time.

Anyone my age knows that in the 1940s and 1950s on ordinary country roads, no one drove on the right side. Everyone drove in the middle (even on a hill), and pulled over only to pass. There was only one set of ruts in the mud, gravel, or snow.

Lack of Uniformity

Nor is it true that the rules governing which side were uniform for a given country. For example, which side to prefer in Spain used to vary from city to city or region to region, even into the 1920s. The same was true of Austria into the 1930s. I have already mentioned Afghanistan. We will see that parts of modern China are different.

At one time (before automobiles), wagons and carriages in some American states drove on or pulled out to the left, not the right.

The same is true of Canada. Quebec and Ontario have always selected the right, maybe because they used to be a French colony. The Prairies also seem to have favored the right, though maybe no one knows why. But all the rest of Canada drove on (or pulled out onto) the left, long after the introduction of automobiles. The dates when the rest of Canada switched to the right side are as follows:
• British Columbia: beginning of 1922
• New Brunswick: end of 1922
• Nova Scotia: 1923
• Prince Edward Island: 1924
• Dominion of Newfoundland: 1947 (before Confederation) (but American military bases there always drove on the right!)

Outside Forces

Military occupation can produce sudden changes of side. Japan and Britain both used the left, and the Netherlands East Indies did too (though the Netherlands chose the right). So Japanese occupations in World War Two had little effect on side of the road. (I do not know what happened in the Philippines.) Britain, Canada, and the U.S. occupied Iceland, but the British and Icelanders prevailed and stayed on the left. But the Germans imposed right-hand driving on the occupied Channel Islands. So did the Argentines when they briefly occupied the Falklands. Patriotic Falklanders continued to drive on the left, to show their defiance.

So changes of occupier can produce double effects on which side a territory drives on. East Timor has changed the side at least four times within living memory!

Switching the Rule

Many countries have switched from left to right. A number of Central American and South American countries did so in the 1940s. So did China and Korea.

Sweden had a plebiscite in 1966, with over an 80% majority deciding to keep driving on the left (contrary to Norway and the rest of the Continent). Next year the government of Sweden switched it to the right! (I say nothing about Brexit.)

Iceland then also switched from left to right. Portugal and Brazil earlier on switched the same day, though Brazil had long since ceased to be a Portuguese colony. But the actual Portuguese colonies around the world did not switch.

Not all the switches were from left to right. Samoa, Okinawa, Namibia (an old German colony), and East Timor have gone from right to left. Doubtless the same was true of other former German colonies in Africa absorbed into British ones during World War One. Rwanda and Burundi are considering changing from right to left.

In the 1970s, Punch magazine reported that the impending switch from left to right in one populous country had invoked so many protests from truckers that trucks were given a 4-month extension before they had to switch sides! That was merely a bit of the magazine’s xenophobic humor, not a real moratorium.

The biggest problem with a switch is not drivers, but signage and vehicles’ equipment. I will return to that below.

Who is Left Today?

Most countries now drive on the right, but a very large and populous number still drive on the left. Who are they?

• Guyana;
• Suriname (former Dutch colony);
• the former British Caribbean colonies;
• Bermuda;
• the U.S. Virgin Islands;
• Ireland;
• the U.K.;
• Isle of Man;
• Channel Islands;
• Cyprus;
• Malta;
• South Africa and adjoining countries;
• most of East Africa;
• Maldives;
• Mauritius;
• Seychelles;
• India;
Pakistan (considered changing but did not);
• Nepal;
• Bhutan;
• Sri Lanka;
• Malaysia;
• Indonesia;
• Thailand;
• Japan;
• Hong Kong;
• Macau;
• Australia;
• New Zealand; and
• some Pacific island groups.

What Side Does the Driver Sit on?

Anyone who has driven here in a right-hand drive car, or in a left-hand drive car in the U.K., knows how difficult and dangerous that is. Even more difficult if there is no passenger to tell the driver when it is safe to pull out to pass (overtake).

That is why commonly left-hand drive vehicles are used where one drives on the right, and vice versa. But not always.

In the U.S.A., many early automobiles had right-hand drive, or centre drive. Henry Ford did not switch his products to left-hand drive until 1908.

One of Canada’s forgotten contributions to the Allies in World War Two was manufacturing enormous numbers of two models of Army trucks. They all had right-hand drive. Most were supplied to the U.K. and other Commonwealth countries, but not all. Some went to the U.S. or to Russia, and other places where one drove (or pulled out) on the right. A few used to be seen in Canada.

It is frightening to drive in the U.S. Virgin Islands. There one drives on the left on narrow roads. That is because the U.S. bought the islands from Denmark in 1917, and the Danish colony drove on the left, though Denmark by then drove on the right. All the vehicles in the U.S. Virgin Islands are big American left-hand drive cars. Similarly a lot of the vehicles in the former British colonies of the Caribbean are left-hand drive, though one drives on the left.

Nor is that phenomenon confined to that part of the world. The Japanese export a great many automobiles, and some of the inexpensive ones (possibly second-hand) are right-hand drive, being designed to drive in Japan. But they are bought and driven on the right side in various parts of Asia, including the eastern part of Russia!


If you are interested in submitting a blog post relevant to Alberta’s legal community, please contact Andrea Maltais, Communications Coordinator at andrea.maltais@lesa.org.

Evaluating Textbooks

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Aug 122016
 

The Honourable J.E. Côté

In today’s guest blog, the Honourable J.E. Côté describes the expediency of textbooks, including what to look for in order to determine which texts are suitable.


Need for Textbooks

What is the most common error which lawyers make when they research law? Experts agree what it is. Lawyers plunge immediately to looking for case law or legislation. Instead, lawyers’ research should start by finding some published discussion of the topic, even if only for general principles and background. Often a textbook will help in many ways.

Canada has far more legal textbooks now than it did a generation ago. Some of them are of high quality, and few of them are useless or very misleading. But they are getting very expensive; some English legal texts can cost over a thousand dollars.

Yet over 70% of legal textbooks are not available online anywhere. The rest are, but are expensive.

It is often not necessary to buy every new edition of a textbook.

It is inefficient to go constantly to a courthouse library for the simplest legal research, and it is very dangerous to wing it without research.

So, a serious law firm needs some legal textbooks. So does a lawyer who keeps encountering the same subject. A law office without texts is not a firm of lawyers; it is a collection of notaries public.
Few firms can afford to buy the latest editions of all the textbooks on offer. How should you choose the most suitable ones?

Book Reviews

The traditional method was reading published book reviews, but I have rarely found they help much. Practising lawyers hardly ever write reviews. The typical book review is by an academic, and falls into one of two baskets. For a practising lawyer, both are equally useless. One version (basket) is pro forma: here is a new edition of Blog’s textbook, and it is about this and that, and includes a new discussion of such and such. The other type is a doctrinal diatribe. It either praises a textbook (probably written by a friend) for being doctrinally correct and progressive, or damns the book because the reviewer (who may be a rival) disagrees with its theory or doctrine.

Seeing Samples

So you are on your own when you choose. How to know which text to buy? You have to see the possible textbooks yourself. That is not hard. The courthouse library has copies on the open shelf. (The university law library has them too, but they may well be locked away somewhere.) And the publishers are usually happy to send you books on approval. So it costs little or nothing for books which you reject and send back.

The Book’s Audience

One vital question for you is whether a textbook is designed purely to teach law school students. Many Canadian ones are. Or would the book be useful for a practitioner? English textbooks usually fall clearly into one category or the other. But few Canadian textbooks are designed primarily for practicing lawyers and few are written by practicing lawyers (or judges).

It is important to detect the basic aim of the text book. The most common distinction is between explaining principles, and cataloging authorities. Help with the latter is always useful, but some discussion of principles and basic concepts is essential, especially in the early stages. Most textbooks tend to do much more of one of these than the other. A few very large books do a fair job of both.

A lawyer will hone to need fairly large chunks of a principle text. A case-finding text may require mining only page or two

The Author

How eminent and experienced the author is, may be some indication. But some authors do not to their own work, especially when the task is keeping an established text up to date.

Coverage

When you get a legal textbook into your hands, what should you look for? First, any clue as to whether it is for the classroom or the courtroom. Second, how much case law or other useful authority it cites. Third, whether it seems to be biased in one direction and selective, or whether it at least mentions the propositions and authorities on both sides of important questions. Third, how up to date it is. Fourth, whether it is merely a textbook on Ontario law, even if the misleading word “Canadian” is in the title. (Conversely, if you can read French reasonably well, sometimes you can find a very high-quality text published in Quebec, better than anything from Toronto. And see if an English text cites any Canadian cases; some big ones do.)

Different textbooks on the same general subject differ in their scope. Despite how law schools divide up the law into subjects for teaching purposes, there are no rigid boundaries. Many everyday topics in a law firm are on the border between two traditional subjects, such as contracts and torts. Or the topics raised by clients do not fit well into any traditional category. When a textbook grows (as all tend to), the next edition may drop a whole chapter, in order to save space and cost. For example, Snell’s Equity has shed many topics over the years.

Conversely, a good textbook will often contain a section, even a chapter, on something which you would not expect from the book’s title. Indeed knowing or discovering that is one of the great techniques of legal research. Most lawyers and students do not know that.

Case Citations

A very good place to look hard is the table of cases of the book you are considering purchasing. After all, what a barrister often wants most is citations to relevant cases. He or she can read the cases. Scan a page or two of the book’s table of cases, and see if it cites cases from Western Canada. And if it cites very recent cases.

Look at the approximate number of cases per page in the table. Multiply that by the number of pages in the table. That tells you approximately how many cases the book cites. Compare those numbers with rival textbooks on the same topic. You will be surprised. One textbook may well cite twice as many cases as a rival text. Publishers have many ways to make a book look bigger than it really is. It is also useful similarly to estimate how many cases on the subject the Canadian Abridgment cites, and see how few a textbook on the same topic cites.

When citing cases, do the textbook’s footnotes always give the neutral citation for the case? (For example, 2015 BCCA 123.) It is hard to look up cases reliably without that citation.
It is also helpful to find a lawyer in your firm who is acquainted with a precise topic or two within the field supposedly covered by the book. See if the book mentions that precise topic or not. If so, ask your local expert how accurate and useful that particular passage in the book is.

If you find an interesting, useful, or controversial statement in the book, look at the footnotes attached to it. Does the book purport to offer authority for the statement? Look at a few of the cases so cited. Do they support the proposition? (If you have time, see if they went on appeal, and if the book reveals that.)

Ease of Navigation

Does the book have an adequate number of subheadings and divisions, or are there multi-page passages with no subdivision?

Look hard at the table of contents and the index. Some books have far more detailed ones than others. Good text and citations in a book are next to useless if you cannot readily find them. Some otherwise good big textbooks have indexes which never seem to yield anything. Think up a few specific topics and see how readily the table of contents or the index lead you to the right discussion. It is especially helpful to recall some topic which you tried to research in the last year or so; would this book have led you to anything?

Conclusion

If you compare two rival texts on the same subject, often differences between the two appear quickly.

If money is a problem, look at the ratio of cost to benefit of rival books. Do not merely choose the cheapest or the best textbook.

P.S. I don’t get any money from the books I have written or co-written. This blog is not a sales pitch.


We would love to hear practitioners’, judges’, and librarians’ comments on this difficult topic of choosing textbooks. Weigh in on the conversation. Connect with us on twitter at #lesaonline, or get in touch with Andrea Maltais, Communications Coordinator

Recording Client Interviews

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Jul 112016
 

 

We’ve all had important interviews with influential people, and it is likely that most of us have relied on a tape recorder as back up. That being said, technology doesn’t always work the way we’d like it to. Maybe you’ve forgotten to press record, had a battery die, or conducted an interview with a soft spoken individual rendering the recording virtually impossible to hear.

In today’s blog, the Honourable J.E. Côté provides tips for conducting and recording client interviews efficiently and effectively.

Happy reading!


Get tips on recording interviews from the Honourable J.E. Côté.Some interviews are very important. When you interview a new client for the first or second time, often you are focusing on temporary issues. For example, whether to act, whether any steps are urgent, and how you will secure payment. You subtly assume that nailing down all the details of what the client knows can come later. Yet when you come to prepare for trial after a few years, you realize that you went into the detailed facts only at the initial interviews, but your notes of them are brief and hard to understand. Yet your client may be your most important witness. And some details may well have faded from his or her memory.

Obviously you need better ways to record the details of important interviews in your office.

Possible Ways to Record Interviews

What is the best way to make and keep such records?

No method is perfect.

  • Handwriting is slow, and often hard to read. It is performed in front of the client, which makes the client more self-conscious, and less relaxed.
  • Sound recordings are sometimes hard to hear, especially if you do not use very modern high-quality digital equipment. Recordings are always laborious to transcribe, even if your assistant plays back on a machine with proper foot controls. Without such foot controls, the work is very frustrating. Furthermore, you will want the client’s consent before mechanically recording him or her, and the microphone will remain in view. That inhibits relaxed speech even more than do a pen and pad of paper.
  • Taking notes using the keyboard of a computer is a little better, but it is still not that fast. Especially if you do not keyboard very efficiently. It can be even more obvious and intrusive. Sometimes it is not much better than pen and paper.
  • Using dictation software would not work well, as the computer software would not be used to your client’s voice, and the computer might interrupt.
  • You could ask the client to go away and produce a full narrative in writing, either with a computer or with a pen in a notebook. Some clients can do that well, but most do not. And they will never know what topics you want to emphasize, or what is of little relevance.

Furthermore, any simultaneous method which you operate will distract your mind. It is like your university days: taking very full lecture notes hindered your paying full attention to the lecture. If you try to take full notes of an interview, you will not have a chance to notice gaps or obscurity in what your client says, let alone ask the client to clarify them. Listening to and watching the client, and thinking about what to ask next, keeps you fully occupied. Trying to write or keyboard as well, is serious overload.

The Best Compromise

There is one other way to make a record which can work well. Bring someone else to the interview, and have him or her take notes. That person can take them in pen, or with a quiet keyboard: whichever works best for the note-taker. A verbatim record is not necessary. If the note-taker is intelligent, he or she will get down the important points. Complete sentences are not needed. The notes can be proofread and expanded after the interview.

The person whom you bring to take notes may be an articling student, a paralegal, or an experienced legal assistant. That person will need a little advance instruction from you, until he or she gets used to this role.

Introduce the note-taker to the client. Ask the client whether it is o.k. for that person to attend the interview. Say that that person will keep the matters confidential the same way that you will. Ask the client if that person may take notes. Rarely will the client object to this procedure.

Then have the note-taker sit in a place which you have carefully chosen beforehand. You do not want the client to focus on the note-taker furiously scribbling. As with other methods, that would distract and inhibit the client. So the note-taker should not be right in front of the client, e.g. sitting beside you at the desk or table. But on the other hand, many clients will be nervous about having someone sitting behind them, or sitting far enough back that the client cannot see them. So the best location is off to one side. That way, the note-taker is not hidden, and the client can look over at the note-taker if desired. But the note-taker is far enough to the side that the client will not readily look at the note-taker, and will soon forget the note-taker. Especially if no noisy keyboard is used.

If you have confidence in the note-taker, you need take very few notes yourself: maybe just an address or a phone number. Or a reminder to diarize or check something. Since you are not a scribe, you are free to converse more spontaneously with the client and can pay very careful attention to what the client says and what he or she omits.

Conclusion

Have you tried this method? What do you think? Let us know on Twitter: @lesaonline


If you are interested in submitting a blog post relevant to Alberta’s legal community, please contact Andrea Maltais, Communications Coordinator at andrea.maltais@lesa.org.

Assist Peer Support Training Session

 Guest Blog, Legal News: Alberta, News  Comments Off on Assist Peer Support Training Session
Jul 082016
 

 

Assist Peer Training Support

On June 25, 2016, LESA’s summer student’s Katie Moore and Angela Beierbach had the opportunity to attend the Alberta Lawyers’ Assistance Society’s (Assist) peer support training session.

This confidential and discreet program allows participants to be matched with a peer support volunteer who is trained in having discussions with people in distress and can offer support, encouragement, and referral to appropriate resources.

Through peer support training sessions, volunteers learn valuable communication skills that can be used when providing peer support to participants. Here’s what Katie and Angela learned.


Body Language

First, body language is an essential component of creating meaningful conversation. It is important to ensure that the speaker feels that they have your full attention. This means planning a time when you can put down your phone, facing the person with open posture and avoiding distractions that can draw you away from the conversation.

Active Listening

Second, when you are looking to have a meaningful conversation it is important to be an active listener. Active listening involves ensuring that you have a strong understanding of the information being conveyed to you by asking questions and making observations.

This doesn’t necessarily involve frequent interruptions and fact-checks, but is more of a pointed checking in process through which you can both ensure that you are on the same page. This can be as simple as asking, “how does that make you feel?” or checking in with observations such as, “you sound upset about this.” Checking in demonstrates to the speaker both that you are listening and that you are making every effort to better understand the issue at hand.

Being Genuine

Thirdly, remaining genuine is key to creating meaningful rapport in any social situation. It can sometimes feel difficult to be yourself in a structured situation where you are trying to say the right thing or remember specific points of conversation, but staying grounded is an integral part of positive communication.

Being genuine will help conversation to flow more easily and create a more comfortable environment for both you and the person with whom you are speaking.
It is through communication tools like these that Peer Support volunteers are able to be positive resources for participants across Alberta.


About Assist

Assist is an independent, charitable Society that seeks to provide confidential help to lawyers, law students, and their immediate families with personal issues.
Assist offers many different resources beyond the peer support program that can help lawyers or families of lawyers with their personal needs. Some of these resources include offering counselling sessions with registered clinical psychologists, online modules, and proactive sessions throughout the year like AssistFit.

Contact Assist

For immediate help from Assist call 1-877-498-6898 (toll free) from anywhere in Alberta. For more information on Assist’s services or to access online resources please visit the website . To speak with someone at Assist about their services or volunteer opportunities please call 403.537.5508 or 1.877.737.5508.


If you are interested in submitting a blog post relevant to Alberta’s legal community, please contact LESA’s  Communications Coordinator, Andrea Maltais.

June in our Legal History: with the Honourable J.E. Côté

 Guest Blog, News  Comments Off on June in our Legal History: with the Honourable J.E. Côté
Jun 032016
 

The Honourable J.E. Côté

Have you ever thought how very strange it is that in this exact moment 10, 20, 50 years ago, something life changing may have been occurring?

In today’s blog, the Honourable J.E. Côté, opens a window into the past, sharing June in our legal history.


Alberta lawyers work very hard, and June is certainly no exception. Furthermore, there is actually no holiday in June, only the tantalizing vision of a long weekend just after the end of the month. Yet the weather is usually inviting in June, and the idea of going to the lake or leaving work early, or just having a beer or a milkshake, is alluring.

So what is to be done? An excuse might be helpful. Lawyers tend to be more motivated by guilt than anything else, so an excuse to give to yourself is the most important thing. You could do some internet research, and eventually find out that today or tomorrow is Honduras’ National Day, or something of the sort. But that would not really persuade you. Besides, you would know how you found that excuse for leaving early. Guilt would increase, not diminish.

Therefore, you need some significant event to honor and commemorate. It has to be real, it has to be provided by someone else reasonably respectable, it has to do with Canada or Alberta, and above all (to minimize guilt) – it must be something about the law.

So LESA hands you, free of charge, a list of true events important to Canadian and Alberta lawyers. All these occurred in June. The list extends throughout the whole month. The events are arranged according to your needs, not the needs of clients or courts; so they are arranged by date. Keep this list all month. With luck, any time you need to consult it, you will find tomorrow’s date here.

June in our Legal History

We forget a lot of our legal history, even quite recent events. Why? Maybe because there is no specific day or mechanism to remember it. The more important a legal development, the more it seems to us natural. We forget that once things were very different.

June saw many important things occur on our legal scene. It is useful to recall some of them now.

Early June

June 4 (1937), a 5-judge Court of Appeal struck down various Social Credit Acts preventing creditors from enforcing debts or foreclosing on mortgages, and reducing the interest contracted for. All were held ultra vires or contrary to valid federal legislation: Credit Foncier v Ross, [1937] 2 WWR 353, 1937 CarswellAlta 3 (Alta CA).

Fifty years later, on June 4 (1987), the Supreme Court of Canada confirmed that it is legal to make permanent contracts about spousal support, so long as they are freely made with independent advice, and not unconscionable. The Court set a comparatively narrow ground to vary such contracts later: Pelech v Pelech, [1987] 1 SCR 801, [1987] 4 WWR 481 (SCC) (CanLII).

On June 9 (2005), the Supreme Court gave one of its few decisions about rights to health care, albeit under the Quebec Charter. The Court held that for treatment where waiting lists are too long, it is unconstitutional to make illegal private health insurance: Chaoulli v A-G Quebec, 2005 SCC 35, [2005] 1 SCR 791 (CanLII).

On June 10 (1937), Sir Robert Borden, who had been Prime Minister during the First World War and the following peace negotiations, died. He was a Nova Scotia lawyer.

Mid June

On June 12 (1986), the Supreme Court ruled that courts have no jurisdiction over any dispute covered by a collective labour agreement, if the possible remedies available under that agreement are adequate: Ste Anne Nakawic Pulp & Paper v CPU, [1986] 1 SCR 704, 73 NBR (2d) 236 (SCC) (CanLII).

On June 18 (1992), the Supreme Court held that in torts, it is rarely a defence that the pl. voluntarily took part in the illegal activity complained of. And it also held that battery is actionable without damage, and that professionals often owe fiduciary duties to their patients or clients: Norberg v Wynrib, [1992] 2 SCR 226, [1992] 4 WWR 577 (SCC) (CanLII).

On June 20 1951, the Privy Council held that contributory negligence exists even where the pl. “guilty” of it owed no duty to the opposing party. It also endorsed great deference to jury damage awards, and set the rules to calculate Fatal Accident Act awards: Nance v British Columbia Electric Railway, [1951] AC 601, 2 WWR (NS) 665 (PC).

On June 23 (1982), the Supreme Court of Canada affirmed the great importance of solicitor-client privilege, as a substantive right, and set limits for searches for privileged documents: Descôteaux et al v Mierzwinski, [1982] 1 SCR 860, 141 DLR (3d) 590 (SCC) (CanLII).  The Supreme Court quoted at great length and followed an Alberta C.A. decision. This reversed the law in other Canadian provinces, in a way that many courts and authors there still do not like to recognize, despite constant reaffirmation of Descôteaux by the Supreme Court.

Late June

On June 25 1987, the Supreme Court of Canada decided R v Manninen, [1987] 1 SCR 1233, 61 OR (2d) 736 (SCC) (CanLII). Anyone detained has the right to consult a lawyer and must be given a reasonable opportunity to exercise that right promptly, including the offer of use of a telephone, and ceasing questioning until that time expires. Admissions made after breach of those rules are usually inadmissible, they held.

13 years later, in 2010, the Supreme Court of Canada laid down the Charter rules for roadside vehicle stops, and possible searches. They adopted a step-by-step analysis, recognizing various possible degrees of a right to privacy. And they defined what is a search incidental to arrest: R v Nolet, 2010 SCC 24, [2010] 1 SCR 851 (CanLII).

Many notable things occurred on June 26. In 1854, Sir Robert Borden was born. In 1947, Viscount Bennett, former Prime Minister in the early to mid-1930s, died in his new home in England. He was a former Calgary lawyer.

And 39 years later, on June 26 1986, the Supreme Court decided R v Mills, [1986] 1 SCR 863, 58 OR (2d) 543 (SCC) (CanLII).  It defined what is a competent court that can give Charter remedies: provincial superior courts, but usually not Provincial Courts when they are not hearing trials. Breach of the Charter by a court does not usually end its jurisdiction.


If you are interested in submitting a blog post relevant to Alberta’s legal community, please contact Andrea Maltais, Communications Coordinator at andrea.maltais@lesa.org.

Office Filing Procedures – With Hon. J.E. Côté

 Guest Blog, LESA Update, News  Comments Off on Office Filing Procedures – With Hon. J.E. Côté
May 262016
 

 

Hon. J.E. Cote

How have office filing procedures transformed as a result of 20th Century revolutions? In today’s blog, LESA’s Distinguished Adviser, the Honourable J.E. Côté, explores former office filing practices and procedures, including what has been lost in translation and what today’s lawyers should know.

Enjoy!


Many lawyers have to navigate a company’s or organization’s older office records – especially if the lawyer handles estates or matrimonial property, or conducts constitutional, administrative taxation, or aboriginal litigation. It is certainly true if the lawyer ever uses archives.

A generation ago, all lawyers understood basic office procedures, and had no trouble inspecting clients’ business records. But the 20th Century saw two big revolutions in how offices make and keep records. Now, no lawyer knows the methods used before the first revolution, and many lawyers are not familiar with the methods used before the second revolution.

Let us go in date order. We will start before the first revolution. That is partly to illustrate what caused office practices, because some old problems have now resurfaced – and partly for curiosity. Next comes the first revolution. Then we will look at the long period ensuing which has great practical importance for all lawyers. Then comes the second revolution.

Pre-Revolution Practices

Long before either revolution, offices had ways to make exact copies of documents. Despite what Dickens says, it was not usually necessary to write out a copy (transcription) of the original. Photographic copies have existed since the 1860s, but they were expensive and not possible in an ordinary office. (Cheaper photostats from the 1920s and 1930s were white on black and so hard to read.)

A century ago, an office clerk wanting a copy simply dampened a sheet of thin paper using a sponge, and then pressed the damp sheet against the ink of the original. In those days, every office had a metal screw-down letter press for that. The resulting offset copy was backwards, but since the copy’s paper was translucent, one just turned it over and read it through its back.

All originals were either written with pen and ink, or pencil, or a typewriter. How would damp paper make a copy from pencil? “Indelible” pencils were extremely common, even as late as the 1950s. Their writing turned into purple ink when dampened. Many early typewriter ribbons were purple, and had similar features. (One Edmonton law office used purple ribbons into the 1960s.)

It was tricky to make more than one copy with damp paper and a letter press, but one usually sufficed.

The big significance of this letter-press process was that the copies were not usually loose sheets. Thin paper is easier to handle and preserve when bound in books. So stationers sold large bound books of thin copy paper; often the blank pages were consecutively numbered. To make a copy, the clerk dampened the next unused page, and inserted the original letter next to the damp page. The whole book was then closed and squeezed inside the letter press.

But that means that an incoming letter and its reply could not be kept together. Not to mention enclosures. So incoming and outgoing correspondence were always kept separate. A file containing both was unknown and impossible. Incoming letters were often punched and put into big arch files, sometimes alphabetically by author. (The arch files might hang on hooks on the office wall.) The copies of outgoing correspondence were the bound thin-paper volumes.

Governments would sometimes have printers create printed (typeset) copies of important or often-used sets of correspondence. That was the only way physically to collate incoming letters and outgoing replies.

How could an ordinary office keep track of correspondence on one topic or between two correspondents? All incoming and outgoing correspondence was logged by hand into large ledgers, each page of which was for a particular customer or a particular topic. That is why the English, and our courts, often call a file room “the Registry”.

The First Revolution

The first revolution in methods came during World War One. The famous engineer, Herbert Hoover, reformed American civil service practices. (Later he became President.) Hoover recognized that the invention of non-smudging carbon paper made it easy to make simultaneous copies of anything written with a pencil or a typewriter. Damp paper and letter presses had been very annoying to use, and he abolished them. Carbon copies could be made anywhere on any type of paper, and multiple copies (up to about 5 or 6) were easy on a typewriter. Copies were made on loose sheets.

Cross-copies of letters were often made on special thin-paper letterhead, bearing the word “COPY”.

It was traditional to make the file copy of a letter on newsprint paper, which was almost always canary yellow. Of course the carbon copy did not show the letterhead or the signature. Presence of a yellow carbon copy on a file strongly implied that the original letter (or memo) had been signed and mailed out.

So the bound book of copies of outgoing mail ceased to exist. But it left behind a ghost in North America. That was a chronological file of extra carbon copies on green paper. They persisted in Canada well into the 1960s, maybe later. They were used for internal archival purposes, and to circulate correspondence, to keep everyone in the office informed.

Now that copies were made on separate sheets, it became possible to store together an incoming letter and the reply to it. Hoover also introduced the cardboard file folder and the filing cabinet. (Before then, a “file” meant a bundle of papers attached with a string or ribbon, not a pile of papers inside a folder.)

Gradual Improvements

Introduction of economical teletype (telex) machines in the 1950s changed only one detail. On some machines, there was also a carbon copy roll, thus giving a chronological file of all incoming and outgoing teletype messages. Teletypes persisted in Europe long after North America dropped them.

The 1960s made popular satisfactory office copying machines. At first, they did not change filing practices. But by the 1980s, clerical staff got into the habit of making file copies of outgoing letters by photocopying, rather than carbon paper. Those copies showed the letterhead, and maybe the signature. Rarely was the copy on colored paper, and it usually was not even marked as a copy. File copies could be hard to identify.

Fax machines became very common by the 1980s, but did not change filing systems.

The 1970s introduced computers for office word processing and accounting. That alone did not change much in office record keeping. Therefore, the regime in place until fairly recent years meant locating relevant records was locating the relevant file (folder) or files. Those were usually numbered and created for a specific topic or by project, though in a commercial organization they might be for a customer or supplier. If the files were not simply in the name of a customer or a patient, there would likely be an alphabetical (often card) index to the individual files. There might be a chronological list of files too. In large organizations there could be other indexes, e.g. by land legal descriptions. Police and governments might keep an index of people mentioned in files or reports. There might be a log of people who signed out or accessed files.

The Second Revolution

Then came the century’s second revolution. Offices started using the internet more and more, usually with desktop or portable computers. Business people, executives, and professionals increasingly personally keyboarded without any intervening assistant or secretary. Business emails became exceedingly common. Now even a formal letter, with letterhead, is usually sent only electronically, not via courier or post office.

That second revolution is now still playing out. Most offices now probably have a mixed filing regime, with some correspondence kept on paper in cardboard folders, some preserved somewhere on computer, and some not really preserved at all (such as texts). Indeed, one could say that some correspondence today is much like pre-Hoover days, with some incoming and outgoing correspondence not linked nor kept together – even if it is between the same people on the same topic. One can write an email as a reply to a previous email, but one does not have to. Some people transfer most of their emails to appropriate electronic folders, but many do not. (And one easy way to do so is not really reliable or permanent.) Just how to file multiple linked exchanges of emails among different addressees is a puzzle. So how clients and law firms keep their correspondence and notes varies a great deal.

Orders in Council

I will end with a few words about Orders in Council. Alberta Orders in Council are straightforward. Each is accompanied by a formal recommendation by a Cabinet Minister (since the 1930s, in any event). (Now some of those recommendations are electronically signed and sent.) The recommendation and the Order in Council are very similarly worded. The Order in Council of course reads like a regulation (and many are immediately registered as Alberta Regulations).

But federal Orders in Council used to have peculiarities. First, sometimes one sees printed (typeset) copies of commonly-cited Orders in Council. Some of their details may be altered from the original. Why? At one time, there was no actual document worded as a federal Order in Council! There was only the formal handwritten (or typewritten) Minister’s recommendation for an Order in Council. On the upper corner of the recommendation, the Governor-General would scribble in his own handwriting “Approved”, a date, and his signature. That is all there was.