RSS FeedBilling By The Hour
There has been a great deal of discussion among legal commentators about the failure of hourly billing for legal services and the need for alternatives. The most recent article I’ve seen is in the CBA’s Jan/Feb issue of National. Although I’m a law student and have never billed a single hour as a lawyer, I have worked for more than a decade as an entrepreneur and I wonder … what are the alternatives, really, but masked versions of hourly billing? Given the limited amount of hours available to work in any day/week/year/lifetime, billing by the job MUST reflect the time that the task requires.
Flat fee services must have caps on the input of resources to succeed as business models and, as a result, will tend to put a floor rather than a ceiling on the cost of any given service. At best, a flat fee will reflect the average amount of time required to perform a service. Innovators can find ways of doing things more quickly through economies of scale, computer processing, outsourcing and so forth, but price reductions that service providers choose to pass on to the clients can be built into an hourly billing model just as easily as any alternative. Innovations might put pressure on hourly rates through competition, but this has nothing to do with the method of billing.
Frankly, I fail to see how alternatives to billing by the hour will change the cost of legal services. The real pressures on cost come from the the well-known forces of the marketplace … the rest is just packaging. And if clients are becoming more sophisticated, will they really be impressed by a fancy one-size-fits-all (unless you want more) gift bag?
The real issue is value. Lawyers that provide it will gain clients and those that do not will lose clients. Those who insist on talking about how the billing is done, please explain (and be nice about it): What am I missing?
The Unrepresented: An Update
A few weeks ago I posted a blog about the Unrepresented – those who can’t afford a lawyer and don’t qualify for legal aid. A few days ago I noticed an article in the Star about an initiative called justicenet that seeks to address this very problem. Through the efforts of Heidi Mottahedin, an internet-based service has been launched that connects people in need with socially conscious lawyers who are willing to work at a reduced rate.
I think that journalist Carol Goar is absolutely right when she suggests that this effort will be insufficient to deal with the enormous structural problem facing our legal system; however, Heidi Mottahedin deserves high praise for her efforts, as do the lawyers who are sacrificing income to be a part of justicenet.
Meanwhile, Legal Aid Ontario is planning to open a Family Law Services Centre in North York. No doubt this will be similar to the Family Law Information Centre at the London Superior Court, where those in need can get information about the law, shelters, counseling and mediation services in the area etc..
Family Law is an area where the lack of affordable legal help is particularly acute, and although the legal assistance provided at these service centres is limited, it is quite helpful nonetheless. A brief consultation will ensure that matters that don’t belong in court are redirected while matters that do belong in court are refined to exclude extraneous issues. The result is a more streamlined court system. At a lecture at Western Law a few weeks ago, Justice Harper expressed his desire for every court to have a Family Law Information Centre. He left me with the impression that he is working behind the scenes to try to make it happen.
Apparently there are people in the legal community doing the hard work to bring about change. If enough people step up to the plate, who knows? Maybe the problem of the unrepresented can be wrestled to the ground without resorting to harsher measures.
Collaborative Family Law v. The Hartshornes
Divorce litigation appears to be so wasteful. Precious money, time and emotional energy get consumed in battles that could be resolved so much more quickly through negotiation; and processes that promote settlement out of court like collaborative family law seem so obviously to be the better way.
However, while researching a paper on prenuptial agreements I happened upon the trials and tribulations of the Hartshornes. This is an extraordinary story – They disputed a prenuptial agreement all the way to the Supreme Court of Canada then fought about how to apply the decision, who gets the matrimonial home, how much to pay for the other party’s share of the home and finally over costs. All told they went to Court nine times over ten years.
It occurred to me that a collaborative process would have been very dissatisfying to this most combative couple. Although the notion that litigation should be avoided seems like such a reasonable point of view, it could be very patronizing to push this view on someone who is experiencing a painful marital breakdown and genuinely wants to fight.
No doubt lawyers who practice CFL are keenly aware of this, but the Hartshorne story makes the point so abundantly clear. It’s a monument to post-matrimonial melee. And to their credit, the Hartshornes fought with lawyers rather than fists … but I still scratch my head in amazement. Ten years in court to end a twelve-year marriage. Incredible.
High Tech without the Cheque
Until recently, medium and large firms were the primary adopters of sophisticated practice management software, such as Time Matters produced by LexisNexis, and other “high” technology. This was due to the high cost of adopting cutting-edge technology, such as the need to have an in-house IT department. However, as the Google-Microsoft war heats up, smartphone apps proliferate, open-source projects continue to deliver competitve software, and hardware costs fall, it’s becoming increasingly possible for small firms and sole practitioners to run a high tech practice on little more than ingenuity and a tolerance to change.
Office Productivity
From reading law blogs, it appears that Google Apps is the backbone of choice for many such practices. At $50 per user per year, Google Apps provides your firm with custom domain email, chat, video, and voice communication applications; a time-management web application; and a structured wiki and basic website creation application. By comparison, Microsoft Office 2007 Small Business costs $280, and doesn’t provide all of these applications, such as simultaneous online document collaboration (Google Docs). Another popular and free productivity suite for those who do not want to compute in the cloud is OpenOffice.
Voice-to-Text
If you’re not a touch typist and/or are used to dictating, voice-to-text applications like Nuance’s Dragon NaturallySpeaking ($200 USD) can dramatically reduce the time it takes you to compose legal documents. According to Wikipedia,
An average professional typist reaches 50 to 70 words per minute (wpm), while some positions can require 80 to 95 (usually the minimum required for dispatch positions and other typing jobs), and some advanced typists work at speeds above 120.
Two-finger typists, sometimes also referred to as “hunt and peck” typists, commonly reach sustained speeds of about 37 wpm for memorized text, and 27 wpm when copying text but in bursts may be able to reach up to 60 to 70 wpm.
While the world’s fastest speaker, Steve Woodmore, who has achieved a rate of 595 wpm, may be disappointed, Dragon NaturallySpeaking can convert voice to text with 99% accuracy at an impressive 160 wpm. Dragon NaturallySpeaking even offers a legal edition which offers a “preconfigured legal vocabulary that includes over 30,000 legal specific terms and phrases, and [which] even formats legal citations”.
At the start of this school year, I started pitching this software to law students and professors as a great tool for the legal profession and education. I now know about a dozen or so people that are using it and are very pleased.
Smartphones
Smartphone users (and abusers) can now synchronize all of their Google contacts and calendar appointments to their smartphone with a free download of Google Sync.
Netbooks
Also called mini-laptops and sub-notebooks, these computer systems are small (typically with screens under 11″) , cheap (<$400), light (<3 pounds), and low-power (typically a 1.6 GHz Intel Atom CPU). If all you’re doing is word-processing, emailing, and browsing the net, these moveable electronic thinking machines will lighten your load without lightening your wallet. In addition, many benefit from supremely impressive battery life; for example, the Asus Eee PC 1005PE gets up to 14 hours!
“Say hello to my little friend!”
VOIP
Another way to bring the costs of calling down is voice over internet protocol (VOIP) technology, which allows you to place calls over the internet at extremely low rates. As well, in the US, Google now offers a free service called Google Voice, which offers free SMS and low cost international calls, along with many other impressive features. Perhaps most impressive of these is the ability to create a single phone number that rings all of your phones, wherever they are, at once or in a sequence.
Fax
To save some more money on the phone front, replace your fax line and use a service such as MyFax.com ($10 USD/month) to send and receive fascimiles by email; but you’ll need to invest in a scanner ($75+), or have incredibly steady hands, a digital camera, and no qualms about misappropriating technology.
Accounting
While PCLaw by LexisNexis provides “flexible financial tools that are fine-tuned for law professionals”, it also costs $1140 for a first new user (I wonder if that expense comes pre-entered). For those willing to adapt a generic small-business financial-accounting software to their law practice, open-source software like GnuCashcan be downloaded for free.
“Technology happens, it’s not good, it’s not bad. Is steel good or bad?”
- Andrew Grove, fourth employee and eventual CEO of Intel Corporation.
Bentley Threatens, “No More Money”
Antonella Artuso of the Toronto Sun reports:
A tough-talking attorney general says he’s prepared to take “whatever actions are required” as criminal defence lawyers consider expanding their boycott of legal aid.
Attorney General Chris Bentley would not rule in or out the possibility that the province could go to a public defender model where salaried government lawyers represent clients too poor to pay for a private sector attorney.
“We’ll take whatever steps are required,” Bentley said yesterday. “We’re in a position where we have no more money.”
Federal Securities Regulation
On Oct 22 an anonymous Law is Cool contributor posted a comment about the Federal Government’s intention to submit a reference to the SCC about whether a federal securities regulator is intra vires the Constitution. As expected, Quebec is going to resist any efforts by the federal government to regulate that which has traditionally been regulated by provinces, according to the Globe and Mail. However, there are a number of issues which always get glossed over when the matter is discussed. For example, the SEC is always cited as an example of a federal securities body. Somehow Canada is behind the times because we are not like the U.S. in this respect. However the SEC shares jurisdiction with State regulators, and I doubt that the Canadian government wishes to duplicate this model. The implicit intention of creating a federal regulator is that it be a single national regulator rather than one more regulator in addition to all of the provincial & territorial regulators.
This raises the sticky point about covering the field. It is one thing to ask the SCC if the federal government has the authority to regulate securities (and this is an empty exercise — few legal scholars doubt that the federal government can do so). It is another thing to ask the SCC to hand ALL authority to regulate everything associated with securities over to the federal government. This would be an enormous restructuring of the balance between national concerns and property & civil rights. There are political ramifications to such a ruling and no doubt the Court would prefer that such an invasive move be made through negotiations between governments rather than via a reference to the SCC.
It should be noted that securities regulation in Canada grew up under a provincial head of power. As a result, it is written in the language of property and civil rights. I have no idea if this is significant with respect to “federalizing” the laws, but I wonder. If the SCC decides that some securities transactions are federal and some are not, then the language of the laws could become significant. A ground-up rethinking and rewording might be in order.
The take-home point: The transition to a single Federal securities regulator seems quite simple at first blush, but it is not.
Will the Law Society of Upper Canada help this man help the homeless?
Law Times: Lawyer stymied in pro bono efforts
My thoughts on what looks, basically, like gatekeeping: The first comment has it right, the Law Society is not addressing the fact that putting someone like Mukhtiar Dahiya in an organization will do little to nothing to reduce the barriers homeless people have to accessing legal services. Here is an experienced lawyer, late in his career, who wishes to provide free legal services to a population that very few others want to/can provide counsel for. Put another way, he is contributing value to the legal profession. Especially as many in the field make grand pronouncements about social responsibility, a large basis upon which the profession itself seeks to maintain legitimacy. Mr. Dahiya has suggested the assistance/supervision of a mentor provided by the Law Society, effectively trying to accomodate their concerns — how about a little vice versa?
SCC: Quebec school laws for immigrants “excessive”
According to The Globe and Mail:
A group of Quebec immigrants has succeeded in striking down a controversial law that barred their children from entering English-language elementary schools.
In a 7-0 ruling today, the Supreme Court of Canada said Quebec must pass a less “excessive” provision within a year if it intends to replace the dead prohibition.
Within minutes, Quebec’s minister responsible for language, Christine St-Pierre, touched off what promised to be a day of political discord in the province by saying that she was “disappointed and angry” at the ruling. The ruling upheld a 2007 Quebec Court of Appeal decision that struck down the law, which prevented a child from attending a non-subsidized English-language elementary school for a year or less and then transferring into the English public school system.
Read the full decision in Nguyen v. Quebec (Education, Recreation and Sports), 2009 SCC 47
I have yet to get through the full decision (exams are creeping up), but please share your thoughts.
Tension between Bronx communities leads to violence
The New York Times recently reported on tensions between African-American and African immigrant communities in the Bronx area of New York City. Already, two violent attacks on African immigrants have been determined to be hate crimes.
The article frames the issue largely in terms of religious and cultural “clash” (and indeed, the comments of the residents interviewed reflect this).
As New York City faces increasing gentrification, and poor communities of colour feel the squeeze, there is an opportunity for crucial cross-cultural dialogue and community-building here. At least one writer posits that the Bronx could become a model for “development without gentrification”.
Aspiring law student possible victim of a hate crime?
In the early hours of October 18, an openly gay man named Christopher Skinner was brutally murdered. After reportedly being attacked by a group of young men, he was run over by an SUV and left to die.
Friends with Christopher the night he was murdered believe that he was targeted as a result of his sexuality. At this time, police say they have no evidence to support that theory. Evidence is still being combed at this point.
It has been reported that Christopher had recently written the LSAT and had plans to attend law school.
EDGE Boston notes that, “But the ferocity of the assault is consistent with the ‘overkill’ that is often part of anti-gay bias crimes.”
In the UK, a new report points to a rise in anti-gay attacks in London.
This tragic murder of Christopher Skinner comes on the heels of recently reported gay-bashings in the province, in London and Thunder Bay.
Hate crimes laws have often proved controversial. Currently, U.S. lawmakers, politicians, and others are awaiting a Senate decision on a bill that would extend hate crime protections to gay individuals.
Italy has recently voted down similar legislation.
Legal Expenses Insurance in Ontario?
The Toronto Star reports today on quiet negotiations to bring legal expenses insurance (LEI) to Ontario. DAS Canada is a subsidiary of a German firm which has successfully provided LEI to Europeans for a number of years, and they’re hoping that the Law Society of Upper Canada will approve of their plans to expand into the province.
LEI works much like other forms of insurance: an individual pays a yearly premium of $500 which would insure legal expenses up to $100,000. Certain areas like family law would not be included. Family LEI packages would allow a greater maximum; a driver’s LEI package at $100/yr would cover litigation for things such as traffic tickets.
Where LEI is potentially most beneficial is with respect to access to justice. The average civil trial costs $60,000; the average Canadian earns a little over $41,000 per year; and the maximum annual income for an individual to qualify for legal aid in Ontario is $7212. This leaves a broad swath of middle-class citizens who simply cannot afford access to the legal system. In a provincial report last year, UofT Law Prof. Michael Trebilcock stated,
How LEI would affect the average person’s desire to litigate remains to be seen. Increasing litigation does not seem to be an issue in the UK and Germany, where LEI is quickly becoming the norm. And LEI could also ease the burden on our crowded courts, because it is in the interest of insurance companies to settle rather than go to court.
Courts and national security
Court lets Canadian spies snoop on targets overseas
Joanna Smith writes for the Toronto Star:
CSIS can spy on Canadians but could not do so beyond its borders. CSE can collect intelligence in foreign countries but cannot operate in Canada and must leave Canadian citizens alone. Mosley ruled the problem could be solved without violating any laws if the two agencies worked together.
The ruling allows the court to issue warrants for the CSE to monitor Canadians overseas because the technology is “controlled from within Canada.”
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