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The Working Stay-Cation

I shoulda been in Jamaica, this week.

For a variety of scheduling reasons, mostly my significant other’s, that didn’t work out as planned. Which is not the end of the world, particularly with temperatures hitting 15 degrees in Toronto today.

(It’s 28 in Runaway Bay, Jamaica though, as we speak).

But today’s tip is not about the thermometer. Rather it’s about the “stay-cation.”

My week was booked off for vacation and I decided to keep it that way. The order of events for the week, I prognosticated, would be:

1. Catch up with my emails

2. Relax.

Four days later, I am still working on item number 1.

Now, my tips partner, David Bilinsky, has written previously about the quest for inbox zero, and I continue to pursue that elusive goal, with most of the week now behind us.

I am not complaining. Rather, my insight is that it might not be such a bad idea to book a week off here and there, as a matter of course, just to catch up.

A week with no meetings, no telephone discussions. No administrivia. No mediations, discoveries, or court attendances.

Just a week to address all those matters that have needed attention or otherwise have fallen between the cracks.

Give it some thought.

All I can say is that at the end of this stay-cation, with Easter and Passover holidays arriving, inbox zero is looking like a distinct possibility.

And that adds up to happy clients and happy lawyers.

(And happy insurers too, I should probably add).

So today’s tip: Consider booking the working stay-cation to deal with your backlog and to catch up on all that unfinished business. It works.

A good holiday to all.

 – Garry J. Wise, Toronto (@wiselaw on Twitter)

Posted on April 2nd, 2015 - Editor: Garry J. Wise
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Know That Smartphone (And the Data Stored Therein)

What data can be harvested from the typical smartphone? How can litigators utilize forensics to obtain this data for use in legal proceedings?

Two recent articles from Law Pro’s Tim Lemieux and Rob Lekowski of ABA’s Law Technology Today have looked at these questions and offer quite a bit of need-to-know information.

The typical mobile device retains information on the locations of all calls, all wifi-networks joined, photos taken, and apps that utilize location services.  Text messages – even those deleted – will remain on the device until overwritten, as will browsing histories. Even encrypted data may be accessible.

And of course, there will also be all the usual email, documents and other app data that will be readily available from the device, without any forensic voodoo.

Four-digit passcodes present virtually no obstacle to forensics experts seeking access to mobile devices, according the the Lekowski article.  Even a rudimentary Google search will yield an avalanche of results as to forensic software suites that are available to assist in data harvesting from mobile devices and the cloud-based mail and data storage applications they are connected to.

There has been much jurisprudence in a criminal law context as to the necessity of obtaining warrants prior to police searches of mobile devices.  In R. v. Manley, a 2011 decision of the Ontario Court of Appeal, Mr. Justice Sharpe noted:

Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.

In a civil context, orders may be obtained for production of cell phones and hard drives for forensic analysis (see: Comisso v. York Regional Police, 2010 ONSC 3620), subject to assessments of relevance and proportionality that may significantly narrow or limit the scope of such analysis (see: Warman v. National Post Company, 2010 ONSC 3670). Further, the ease with which electronic evidence may be destroyed has been cited as a factor in considering the appropriateness of granting an Anton Pillar order for the seizure of computers and mobile devices (see: Irving Shipbuilding Inc. v. Schmidt, 2014 ONSC 1474).

While forensic analysis of mobile phones and their data will clearly not be appropriate on a routine basis in every case, counsel should consider whether such evidence is relevant and whether production for forensic analysis would be proportionate to the claims advanced. Further, bear in mind that such evidence can be exculpatory, and is not always damning. Consider whether your own clients’ mobile data could be of assistance in advancing their claims.

Our courts continue their attempts to find a balance between the protection of privacy and the temptation to litigants of the voluminous, potentially-relevant data on mobile and other electronic devices.  As a result, determining whether mobile data is necessary and potentially discoverable must be included on the litigator’s to-do list  in prosecuting a civil action.

So today’s tip:  Know that smartphone – it might be litigation a game-changer.

– Garry J. Wise, Toronto (@wiselaw on Twitter)

Posted on March 5th, 2015 - Editor: Garry J. Wise
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Start a “Thank You” File

As we approach Christmas our thoughts, of necessity, turn to giving, receiving and gratitude.  These sentiments are the inspiration for this week’s tip.

Open a file (OK, maybe an email folder) just to save all the cards and letters (or electronic communications) from satisfied clients, the replies from speaking engagements, the letter from the Little League team your firm supported, anything that demonstrates that you are making a positive difference in the lives of others.

Practicing law is not always, or even often, easy.  But as we always say, “What gets measured gets done.”  Start measuring the impact that you are having on the world through your profession and your career, and when you’re discouraged and you start to doubt the worth of your work as a lawyer, pull out the file and flip through it.  Its a wonderful life we lawyers are privileged to live!

Seasons Greetings to you all!

Posted on December 20th, 2012 - Editor: David Bilinsky & Laura Calloway
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Meet Me at the Bar!

Everyone hates paying bar dues – especially lawyers who are members of a mandatory bar and have no choice about it.  But as long as you have to pay, why not take a little time to investigate what you get in return?

Your law society or bar association can be a great source of information and assistance for the improvement of your practice as well as a bulk-buying group that negotiates member benefit discounts.  Many bar associations offer ethics and practice management advice as well as discounts on insurance, office equipment, wireless phone service, office products, cloud-based storage and backup, legal software and countless other products and services that will make your practice – and your life- run a little more smoothly.  Yet many association members never take advantage of what’s on offer.

Spend a few minutes today to familiarize yourself with all the benefits your law society or bar association has to offer and pick two or three to implement over the next two months.  You’ll be glad you did.

Posted on March 15th, 2012 - Editor: Laura Calloway
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