The talent present this year at Osgoode’s Internationally Trained Lawyers’ Day (OITLD) was impressive. Participants came from all types of backgrounds of legal careers; some were well-established lawyers in their home countries, some were sole practitioners and others are working in legal positions for big firms. Despite diverse cultural and professional backgrounds, we were united by a burning desire to further our career development and to apply our international experiences in the Canadian legal industry.
As an internationally trained lawyer enrolled in the LLM in Canadian Common Law program at OsgoodePD, I am faced with heavy academic commitments and I often ask myself, “how will my participation in the program benefit my career?” It is a relevant question not only for those who have decided to build careers in Canada, but also for those planning on returning to their respective countries to do the same. The topics covered during OITLD were relevant to both groups and here are my take-aways:
You already have what it takes. One misconception that was highlighted is that internationally trained lawyers need many years of experience practicing in an established law firm before going solo. This isn’t the case. It is possible to start your own practice right after being called to the bar, but the key is to carve your own path in a way that it is most comfortable for you. Dawn Bennett’s advice was to “find your authentic self so you can be satisfied and make your money too”.
Don’t hide your rich experiences. Internationally trained lawyers should apply their knowledge from various legal systems into their practice, or consider practicing in different countries at the same time. ‘Mobile practice’, which is unique in its set-up, was presented to us and is innovative and can go beyond borders while you sit in your living room (or anywhere else for that matter)
Invest in the set-up of your practice. If you don’t understand the nuances and intricacies of setting up a legal practice, do yourself a favour and address these issues in collaboration with professionals that understand the business and can offer you tailor-made solutions. Rebecca Lockwood stressed not to overlook foundational needs such as sourcing powerful client management software – you might not need it immediately, but it will make things easier in the long-run.
Don’t try to do it all alone. At the end of the day, and regardless what path your career will take, admittedly, it is extraordinarily hard, and near impossible, to do it without help from others. This is where the value of networking and mentorship becomes apparent. Through networking you get access not only to professionals, but to individuals who like yourself, need friendship, support, and encouragement. It is through mentorship that you get the opportunity to draw on knowledge of those who have been where you are, who know the path and its struggles, and who are ready and willing to provide guidance and feedback.
I have often heard about the value of networking and mentorship, however, at the event, I was not just reminded of it, but capitalized on the chance to connect with interesting people and lay the groundwork for potential future relationships.
As a rising tide lifts all ships, so too do the relationships you establish with supportive and engaged professionals. I am excited about the times to come and I most definitely look forward to OITLD 2017.
ALEX FOMCENCO, Ph.D., LL.M., LL.B., is currently teaching and conducting research at Aalborg University, Denmark. His main research interests are International Business and Corporate Law, EU Law, and Contract Law. Concurrently, he is pursuing an LLM in Canadian Common Law at Osgoode Professional Development.
Over the last number of years I have observed a lack of clarity of thought in the legal profession: lawyers who have not fully thought out their argument; lawyers whose written work does not logically lead to the conclusions they advance; lawyers who mount business development plans without direction; lawyers whose oral argument takes a 180 degree turn from their written argument without their seeming to have noticed.
We all know that we need knowledge and skills to succeed in the practice of law: substantive knowledge, writing skills, oral communication skills, negotiation skills, practice management skills, and business development skills, among others. Yet we persist in ignoring the skill that underlies and draws together all of the elements of a successful practice – thinking. Or rather, many of us assume we don’t need any help with our thinking; that it is somehow innate and immutable. We all went to law school. We got our call. We are practicing lawyers. Of course we can think. We think thinking is a given.
But what if it’s not?
Intrigued by the fuzziness of thought I noticed around me, I spent some time talking to academics and philosophers. I learned that thinking is a skill – just like writing, or marketing – and it is one at which we can all improve.
Fast, or “on your feet”, thinking is the kind you deploy in a high pressure situation, like in an intense negotiation or in submissions in court. Slow, or reflective, thinking is the kind we need when building our theories and strategies for our files. We use slow thinking when we have more time, but the stakes are no less significant than in high pressure situations.
Human beings employ shortcuts, like pattern-matching or emotional tagging, in our slow and fast thinking all the time. We must, in order to cope with the volume of information around us. Most of the time, these strategies are useful, but they can let us down too.
Shouldn’t we understand the tricks our brain uses to subconsciously advance our thought processes?
Doesn’t it make sense that understanding how our thinking works will improve it, and help us understand when to trust our judgment and when to question it? Or that it will help us understand the forces that may be at work in the thought processes of opposing counsel, the judge or our client? Picard had Troi, but in this world, understanding the natural thinking biases that guide human thought is the best we can do.
Thinking lies at the very heart of our profession. Everything about our practices – our ability to apply our substantive knowledge, our ability to write, our ability to effectively communicate orally, our ability to build a book of business – improves when our thinking improves. So why not think about your thinking? Imagine the power of what you might discover.
JASMINE T. AKBARALI is a partner with Lerners LLP, where she practices in the Appellate Advocacy Group. She specializes in civil appeals and litigation opinions in a wide range of areas, including public law, commercial disputes, constitutional challenges, professional liability, employment, personal injury and lawyers’ professional and ethical duties.
During our 20th anniversary year, we’ve been doing a lot of reflecting at OsgoodePD. We’ve had tremendous growth in the past 20 years, starting as a small offshoot of the law school and developing into a leading provider of continuing legal education in Canada.
What we’ve realized is that our reach has been far greater than we knew. Through a combination of Continuing Legal Education programs, LLM degree programs, preparatory and custom programs, we’ve reached over 50,000 professionals worldwide. It got us thinking about the diversity of people that we come into contact with every day. Of course, there are many lawyers, judges and paralegals, but also a lot of non-legal professionals who deal with legal issues on a regular basis – nurses, educators, law enforcement professionals, tax professionals, human resources professionals, and the list goes on.
On a day to day basis, we see how remarkable this diversity in experience and perspective is, and how people are able to forge new connections and learn from each other. We decided we couldn’t keep these experiences to ourselves. So we asked 20 people who have been involved with OsgoodePD in the last 20 years for their stories. We asked about their career journeys, perspectives on professional development, memories of OsgoodePD and advice to their younger selves. The responses we got back were fascinating, not just for the variety of experience, but for how personal and meaningful they were.
These stories cover a lot of ground – from careers starting on construction sites and in the National Archives, to aspirations for a Nobel Prize in Physics, to a stint in military law with the Office of the Judge Advocate General (JAG), to the displacement of moving to a new country and establishing a new career from scratch. Here are a few quotes from our contributors:
“Do not be afraid to get out of your comfort zone and try doing a variety of work during your legal career. Variety in practice allows you to see other points of view.” Justice Steve Coroza, Superior Court of Justice
“If I had the chance to give a younger self some advice, I would say that you should explore all your talents and interests and discover what motivates you. When I was growing up, you took practical courses that could land you a job. I always wonder what would have happened if I had been allowed to discover my creative side.” Nancy Quattrocchi, Canadian Foundation for Healthcare Improvement
“The most important part of a rewarding career is the relationships you build – prioritize that.” Norie Campbell, TD Bank Group
Read our full profile on 20 Years and 20 Stories, and give us your thoughts on professional development. Looking back on your career experiences, what would you tell your younger self?
Assistant Dean and Executive Director, OsgoodePD
For over 10 years, Ken Adams has ardently shared his international expertise and nuanced insights into contract language with our lifelong learners. Much like his classes, Ken’s blog is filled with practical guidelines and great discussions on all things related to contract drafting. In one of his recent posts Ken talks about the use of an “unless” clause, if you should use it, and the concepts “condition precedent” and “condition subsequent.” We’ve re-posted it below to share some insight into some of the great topics that Ken covers in his programs.
We offer Ken’s “Drafting Clearer Contract” courses (introductory and advanced) live in Toronto every year. And this year we’re excited to offer two more ways you can benefit from Ken’s expertise and passion for teaching. You can catch the introductory course online, in a series of five one-hour webinars available live (starting February 3) or on demand. And in April we’ll be running the introductory and advanced programs live in Vancouver, British Columbia.
In MSCD 3.248, I recommend that you not use in a contract the terms of art condition precedent and condition subsequent:
In a contract, use the term condition rather than condition precedent, which conveys the same meaning but adds an unnecessarily legalistic flavor. You should never need to use condition subsequent, meaning something that, if it occurs, would bring something else to an end—it’s safe to assume that its meaning is unclear to clients and many lawyers. Without using the label condition subsequent, simply state that if X happens, then Y will cease.
But drafters should be aware of the underlying concepts. To understand why, consider the recent opinion in Total Recall Techs. v. Luckey, No. C 15-02281 WHA, 2016 WL 199796 (N.D. Cal. Jan. 16, 2016) (PDF here). (Thanks again to man-about-town @VBalasubramani for the tip; go here for my first post about this case.)
Defendant Palmer Luckey argued that he had not breached the terms of the confidentiality agreement at issue, in that the nondisclosure and exclusivity provisions had never taken effect. Here’s the relevant part of the contract (emphasis added by the court):
The Receiving party shall keep all details including drawings and part suppliers of the Head Mounted Display confidential and shall not aid any other person or entity in the design of a Head Mounted Display other than the disclosing party. Unless within a twelve month period from 1st July 2011 the receiving party has not received a minimum payment in royalties of 10,000 US dollars by the disclosing party. The exclusivity shall remain in place for a period of 10 years providing a minimum of 10,000 US dollars is paid from the disclosing party to the receiving party per annum.
Note that the second sentence is ungrammatical: it should have been a conditional clause modifying the first sentence. Here’s what the court said about it:
Luckey’s argument that the nondisclosure and exclusivity provisions of the agreement never took effect turns on the interpretation of the italicized sentence fragment above. Luckey contends that the ten thousand dollar payment contemplated therein was a contingent event that had to occur before the exclusivity and nondisclosure obligations could take effect. Seidl’s (and Total Recall’s) failure to make such a payment, Luckey argues, is fatal to Total Recall’s claim that Luckey breached the contract. Total Recall responds that its payment obligation was excused by Luckey’s alleged breach.
The use of the word “unless” tends to support Luckey’s construction of the agreement; however, the grammatical defect in the provision renders it ambiguous at the Rule 12 stage. One possibility is that the fragment was a condition subsequent, meaning the duty to maintain confidentiality evaporated after one year (if the payment was not made). Another is that it was a condition precedent, meaning the duty never arose in the first place (since no payment was made). And, while it seems clear that zero payment was ever made, the idea that Luckey frustrated such payment and thus excused it is plausible (if barely so) at the Rule 12 stage.
First, let’s consider how to interpret the language at issue. I suggest that Luckey’s argument doesn’t make sense. Here’s why:
Obligations can use a dynamic verb (pay, sell, terminate) or they can use a stative verb (keep, maintain, preserve). Here are two versions of an obligation using a dynamic verb plus a conditional clause, one using the subordinator if and the other the subordinator unless:
On 1 January 2018, A shall pay B $100 if C is then living in the United States.
On 1 January 2018, A shall pay B $100 unless C is then not living in the United States.
The meaning of both versions is clear. I offer two versions just to demonstrate that unless is the negative counterpart of if—if the matrix clause (that’s what you call the part of the sentence a conditional clause attaches to) modifies an obligation, unless serves to express when the obligation doesn’t apply. You can make if and unless equivalent by making negative the conditional clause of one or the other—hence living in with if and not living in with unless in the above examples. (There are other subordinators, including provided.)
Here are two versions using a stative-verb matrix clause, again with one conditional clause using if, the other unless:
A shall keep the information confidential if by 1 July 2012 B has paid A $10,000.
A shall keep the information confidential unless by 1 July 2012 B has not paid A $10,000.
The version using unless is a simplified version of the language at issue in this dispute. The version with if is clear—the obligation applies only after the condition has been satisfied. The version with unless expresses a different meaning. There’s nothing to suggest that the obligation wouldn’t apply on entry into the contract. It follows that because unless is the negative counterpart of if, in the context of a stative obligation that applies on entry into the contract, the natural reading of a conditional clause with unless is that satisfaction of the condition would mean that the party under the obligation would no longer have to comply with it.
That’s perhaps easier to see using simpler examples:
I’ll walk your dog if you’re nice to me.
I’ll walk your dog unless you’re not nice to me.
The first example is clear—It’s a condition to my walking your dog that you be nice to me. But it would be semantically anomalous to derive that meaning from the second example. The natural meaning is that I’ll walk your dog, but I’ll stop doing so if you’re not nice to me.
So the court was mistaken in saying that “use of the word ‘unless’ tends to support Luckey’s construction of the agreement.”
Incidentally, the court was also mistaken in saying that the grammatical defect in the provision renders it ambiguous. The only question was whether the second sentence should have been not a separate sentence but instead a condition clause modifying the first sentence. The answer is clearly yes, and in any event ambiguity doesn’t come into it.
So we have here a judge with insufficient semantic acuity to make sense of disputed contract language. That’s a commonplace; see this article, this article, and this blog post, for starters. It’s the litigator’s job to use the pleadings to steer the judge in the right direction; consulting an expert in contract language would help. That’s something I discuss in this post.
Recommendation for Contract Drafters
Critiquing how courts interpret confusing contract language has its interest, but what’s more important to anyone drafting or reviewing contracts is how you avoid this sort of fight. In this case, it’s simple enough: with an obligation containing a stative verb, it would be clearer to replace an unless conditional clause with except that and an if conditional clause, as in the second version below (the first version is the simplified version of the language at issue in this dispute):
A shall keep the information confidential unless by 1 July 2012 B has not paid A $10,000.
A shall keep the information confidential, except that if by 1 July 2012 B has not paid A $10,000, A will no longer be required to keep the information confidential.
The version with unless couldn’t really be said to be unclear, so why change it? Because in addition to being clear, you want to avoid fights. As was the case in this dispute, disgruntled contract parties might be tempted to use the meaning of a stative-verb matrix clause modified by an unless conditional clause as a stick to beat the other guy with in future disputes.
Editor’s Note: The original post titled “Whether an “Unless” Clause Is a Condition Precedent or a Condition Subsequent” was published on January 26, 2016 by Ken Adams. It can be found here.
KENNETH A. ADAMS is a leading authority on contract language. According to The Lawyers Weekly, “In the world of contract drafting, Ken Adams is the guru.” Ken’s book, A Manual of Style for Contract Drafting is one of the ABA’s best-selling titles and has become an essential resource for contact drafters. He gives public and in-house seminars in the US, Canada and internationally. Ken also frequently acts as a consultant and expert witness.
Twenty years ago this Fall, this organization was launched by Osgoode Hall Law School with great vision and a leap of faith. And while 20 years is young compared to the law school itself (126 this year!), the remarkable growth and innovation that have made Osgoode Professional Development an important and unique part of the Canadian legal landscape makes it a milestone worth celebrating. In this post, the first of a few on this theme, I’ll attempt a short history, recognizing along the way some of the Osgoode leaders who got us here. In posts to come, I’ll talk about the remarkable members of the Bar and Bench who’ve worked with us to make OsgoodePD the place where theory meets practice.
In 1995, the Part-time LLM in Alternative Dispute Resolution was launched under the umbrella of the “Professional Development Program” (or “PDP”) of Osgoode Hall Law School. Part-time LLM programs in Business Law (directed by Warren Grover), Banking & Financial Services Law (directed by Professor Ben Geva), and Tax Law (directed by Professor Neil Brooks) had been launched prior to 1995. Under the leadership of Dean Marilyn Pilkington, however, the decision was made to bring the Part-time LLM programs together into one centre with a common mission: to provide a high quality graduate program designed for practicing lawyers. Given the emphasis on specialization in legal practice, the aim was to provide the opportunity to gain the advanced knowledge needed to develop expertise in a specific practice areas, and to build curriculum that would meet the needs of lawyers after they left law school.
The early years of the PDP, under Director John Claydon, were heady ones indeed. The LLM in ADR, lead by Professor Paul Emond, was a roaring success, tapping into pent-up demand for advanced study in the theory and practice of Alternative Dispute Resolution. The approximately 450 alumni of that program to date are the leading thinkers, practitioners and teachers in dispute resolution in Canada and elsewhere. The thoughtful and continuous re-working of that program has lead to the LLM in Dispute Resolution (no longer “Alternative”) that thrives today under the leadership of Leslie Macleod (a graduate of the first cohort).
New LLM specializations were launched in rapid succession following the success of the ADR program. Classes were held in rented facilities in downtown Toronto but by 2000 it became clear that a downtown campus was needed to house the growing PDP. In 2000, Dean Peter Hogg and John Claydon made the decision to rent space at the corner of Yonge and Dundas, at that time a relatively “low rent” commercial area but on the subway line and close to PDP’s clientele. This was a bold step. I think it’s fair to say that taking that kind of financial risk is outside the comfort zone of most legal academics, and this was the first of several in the life of PDP/OsgoodePD.
The PDP thrived in its new home and with new innovations that expanded the reach of the Part-time LLM. Video-conferencing of some programs was introduced in 2001, and students in various cities could access the degree by attending at video-conference facilities, often provided by law firms. While distance learning by various means has become commonplace today, it’s easy to forget that just a few short years ago, it was highly innovative, especially in graduate programs.
With evenings and weekends booked with LLM classes, it only made sense to use weekdays for non-credit continuing legal education programs, and the PDP started offering programs including Evidence Law for Civil Litigators, Written Advocacy (in partnership with The Advocates’ Society), and a bi-annual conference on Search and Seizure Law. The Osgoode Intensive Trial Advocacy Workshop, founded in 1979 by Professor Garry Watson, was also brought under the PDP umbrella and formed the foundation for legal skills programs in many areas.
I had the great good fortune to be hired by Dean Patrick Monahan in late 2004 to grow the PDP. As a former trade-mark champion and lawyer at Coca-Cola Canada, I was struck that “Osgoode” was not front and centre in the name (really, is there a better legal brand in Canada than “Osgoode”?), and the PDP became Osgoode Professional Development. With Dean Monahan’s enthusiastic support, we set about becoming the world’s leader in law school lifelong learning.
A first step was to look at who we were serving. Just over ten years later, we have dozens of programs (including more than 25 non-credit certificate programs) directed to professionals and executives who are not lawyers but have legal risks and responsibilities in their jobs. Many of these programs are offered in a face-to-face format outside of Toronto and several are online. A further step was to look beyond Ontario. Demand for our certificates has taken us to Nunavut and Jamaica and brought us students from Trinidad, Kenya and Singapore.
Like other Canadian organizations, we were challenged with making our offerings accessible to a dispersed population. In 2008, we were the first to launch desktop video-conferencing. Today, students can join our LLM classes from anywhere, and this capability has immensely enriched the learning experience. It’s not unusual to have real time class discussions involving a Nunavut Crown, a Thunder Bay defence lawyer and a Fredericton Crown. Many of our other offerings are live-streamed over the web in real time, and the recordings are archived for later access in our growing catalogue of On Demand offerings. Like other educators, we grapple with how to continuously improve the experience of our online audience and create intimacy over vast distances.
2008 was a big year for other reasons too. There was no money to improve the facilities at 1 Dundas when they were acquired in 2000. We undertook a renovation of the entire facility, resulting in a refreshed space with splashes of bold Osgoode red throughout. We finally had a home that looked the part.
2008 also saw the first year of our first program directed primarily at internationally-trained lawyers: a full-time LLM in International Business Law with an optional internship under the leadership of Professor Jinyan Li . This year, we have students from all of the world’s major regions, including a growing number of students originating in the Middle East and Latin America, in addition to our initial base of India, Nigeria and China.
During Dean Lorne Sossin’s tenure, we’ve added an LLM in Canadian Common Law, directed by Professor Faisal Bhabha, a fully online exam prep course for the NCA examinations (with help from the Province of Ontario), and a Pre-LLM Foundations program to assist students who need bridging into our full-time LLM programs. As our body of full-time students grew, the “Part-time LLM” morphed into the “Professional LLM”.
Many of the best OsgoodePD offerings have been developed with partners, both within and outside the legal community. Dean Sossin has been instrumental in some of our recent partnerships. In addition to our long-standing partnership with The Advocates’ Society, in the last few years we’ve worked to develop programs with the International Property Tax Institute, the Society of Ontario Adjudicators and Regulators, and the Forum for Canadian Ombudsman, to name just three. On the horizon are other kinds of partnerships, with law and other faculties in Canada and elsewhere.
It’s not possible, in a blog post, to capture the spirit of this place or recognize the students, staff and faculty who have made it so unique (but follow us here and on @osgoodepd and #20atOsgoodePD as we try!). In 20 years, not only has the name changed, the face of OsgoodePD has changed (and that face is now often on a mobile or desktop screen). And as I scan the landscape, I’m pretty confident, thanks to the vision of our leaders and commitment of well over 1000 practitioners, judges and others who’ve been involved in OsgoodePD over the last 20 years, that OsgoodePD is the leader in law school lifelong learning.
As for our 1 Dundas home, well, we’re running out of space. Stay tuned …
Assistant Dean and Executive Director, OsgoodePD
After many years of feeling a bit like the infamous Chicken Little I must say that I am heartened to see the legal profession taking note of the paradigm shift underway in the industry. While I don’t believe the sky is falling, I do believe seismic shifts are underway. The industry as a whole sits in a mature market phase so the very nature of how legal services are defined, delivered, valued and priced are being scrutinized, by many forces, from many angles and change of one form or another is guaranteed to result. Depending on the area of practice, role and practice environment, some lawyers feel the pressure to change like a tsunami while other note a gentle shift in trade winds.
Whatever the context, an open acknowledgement that change is afoot is slowly becoming the commonplace reality for the majority of lawyers across the spectrum of settings and roles. Interestingly, and yet not that surprisingly given the autonomous nature of lawyers, the response to this change is as varied as the types and forms of practice available.
Opinions abound as to how to respond to the changing landscape. I have heard everything from do nothing (as this is nothing more than a “race to the bottom” that will self-correct once the less competent are run out of business) to overhaul your practice to become more efficient (as this is a golden opportunity to grab market share) to innovate and create a new, completely different offering (and with it create new markets).
While I don’t have a crystal ball or “THE right answer” (frankly I don’t think there is one “right” answer), I do think the “do nothing” approach is ill advised. Examples of those who did nothing while everything around them changed (from Polaroid, to Kodak, to Blockbuster) do not bode well for that approach. The approach you do take will, however, depend very much on your environment and there is no guarantee that it will be “right” the first time. That’s OK. In fact, you are more likely than not going to make some mistakes. Many mistakes. The important thing is to fail fast, move forward and learn from those mistakes. Recognize that this is a marathon, not a 100 meter dash.
When deciding what path to take it is worth noting that much of the pressure to adjust is coming from changes underway in client behavior and client needs which directly impacts the role of in-house counsel. Merely knowing the right legal answer has increasingly become table stakes. Being able to apply that legal knowledge while taking into account budgetary impact, business context and practical implications in order to deliver a solution-oriented recommendation that drives business results is where more and more in-house talent is being pushed and where they really deliver value for their organization.
And this is where the impact and opportunity for external counsel kicks in. With clients and/or internal counsel pressed for time and resources while being expected to deliver results, clients look to their external service providers for practical advice that makes it easier for them to decide what to recommend or do. For example, executive summaries with clearly articulated recommended next steps and cost implications are critical whether your clients are large organizations or individuals in a family law dispute – arguably even more so for the latter type of client. A simple enough step and while it sounds easy enough to do, it is surprisingly difficult to do well without conscious attention to developing skills associated with succinctly delivering such a product and truly understanding the needs and context of your specific clients as well, if not even better, than they do.
This is where continuous improvement and development of your personal skill sets is imperative. You can’t control the needs and contexts of your clients or the path that the legal profession takes as the waves of change come crashing in. You can, however, master the skills required to surf the waves and enjoy the thrill of the ride.
To that end, courses and conferences abound that help lawyers develop the business skills needed to thrive in this emerging new world. I encourage you to think about what skills you could brush up on or develop to help you navigate these uncharted waters. As the instructor for Module 5 of Osgoode’s Leadership and Business Academy, I am biased and quite like the practical skills offered by that program. The fact that the modules address skills required to surf with confidence, combined with the ability to sign up for modules as a package or a la carte, particularly appeals to me.
Whatever type of program and/or resources appeal to you, take charge of your journey and regularly identify opportunities to acquire skills that will enable you to jump in with enthusiasm and confidence. Given you readily figured out how to master law school concepts like torts, laws of perpetuities and adjusted cost bases you have the learning mindset needed to unlock these additional business skills and concepts that will help you tackle the puzzle of the paradigm shift.
Whether you are focused on innovation, improvement or just staying the course, one thing is certain, regularly investing in your broader business skills is necessary to remain competitive in this regularly shifting environment. Whatever your year of call I encourage you to embrace the love of learning embedded in each and every one of you and develop and hone the skills needed to ride this wave of change. You won’t regret it!
MELISSA LAFLAIR, PMP, LL.B., IVEY HBA, practiced corporate and securities law at the Toronto offices of Torys, LLP and Davies Ward Phillips & Vineberg, spent 7 years as General Counsel and Executive Vice President for DRI Capital Inc., and is a Certified Project Management Professional who now provides a spectrum of services from education to process improvement to strategic goal setting to resource planning and implementation. In each case, she provides clients with practical and effective solutions to legal and business challenges.
In “Canada isn’t ready for an online law school” (Canadian Legal Newswire, Dec 15, 2014), Philip Bryden gives two reasons that Canada isn’t moving toward online or distance legal education, despite its “democratizing possibilities”. First, the oversupply of qualified applicants for the traditional in-person experience means that law schools don’t have to change to fill the available seats. Second, there is concern that if an investment in physical facilities is not required, “for profit” providers may move into legal education. If profit is the motive, quality may suffer.
Further, Bryden notes, the Federation of Law Societies of Canada currently requires that Canadian law schools offer “…primarily in-person instruction and learning and/or instruction and learning that involves direct interaction between instructors and students.”
Although Bryden doesn’t say so directly, all of this would suggest there’s no pressing reason in 2015 to get serious about digital legal education. I say we need to get serious. As educators working in public institutions, we have a duty to use the tools at our disposal to continuously improve legal education and make it more accessible if we can. If we don’t, others will.
First, let’s put to rest the idea that the regulators are preventing change in this area. The FLSC interprets the “primarily” in “primarily in-person instruction” as 2/3 of a law degree. Further, instruction “that involves direct interaction between instructors and students” – such as the direct-to-desktop live videoconferencing employed in Osgoode’s Professional LLM programs – is OK too. So using those kinds of tools, even more than 1/3 of the degree could be offered other than “in-person”. As it stands, however, I don’t think there’s a Canadian JD program that is even close to the 1/3 mark.
So why do we need to get serious now?
For one, Bryden is dead-on about the “democratizing possibilities”. Demand for legal education may be holding steady (for now) but accessibility is a growing concern. These days, you have to be either wealthy or willing to take on a pile of debt in an uncertain job market. Using digital tools to teach and learn parts of the curriculum can open the door to those for whom family obligations, location, and other tough breaks such as working class parents make attending school full time in person for three years following an undergraduate degree impossible.
Another reason is that digital tools open new possibilities for enriching and improving teaching and learning. Although there is a large body of research to support the superiority of active over passive learning, a great deal of legal education is passive. Although face-to-face education is the benchmark for quality, it’s possible to go through a traditional face-to-face law school education, say nothing in class for three years, and still perform well academically. When a course is designed so that reading is followed by on-line discussion forums, students are required to engage and it’s easier for thoughtful but quiet students to do so by giving them time to craft their comments. There’s also opportunity for vicarious learning through participation in discussion forums.
All of this can be designed in an asynchronous format, so that students and online mediators (who stimulate discussion and direct students back to the readings when discussion strays) can participate at different times and from different time zones. When this kind of teaching and learning is coupled with face-to-face modules (in a “hybrid” model), the mix is a powerful one. A colleague (a Canadian law school alumna) who completed a hybrid graduate degree at Oxford based on a hybrid model, went in a skeptic and came out a convert. The degree and quality of the student engagement online “just blew [her] mind”.
Courses designed to be delivered asynchronously open up new possibilities for participation by students and instructors from all over the world. We have a taste of this in our synchronous desktop video-conferencing in the LLM, where students join classes from across Canada and often outside of Canada. How wonderful to have perspectives from a Crown in Iqaluit, another Crown in Fredericton and a defence lawyer in Kingston, all in the same class! As wonderful as it is, though, it’s time-bound and limited. My colleague’s Oxford tutor in the asynchronous modules was in New Zealand! Not all courses benefit from students and instructors who are spread across the country and the globe – but think of the possibilities!
Some law professors in Canada have been experimenting with “flipped classrooms”, where students watch video-taped lectures and do readings before class; class time is devoted to discussion, problem-based exercises and other activities designed for active learning, rather than lectures. We recently piloted a flipped classroom model for a Legal Research and Writing course, designed by Shelley Kierstead and Sharon Wang. Although the pilot involved a small sample of students (27), all but one rated the video lectures as a 4 or 5 on a 5 point scale of usefulness (how many casebooks would get a similar rating?). Our digital platform also provided analytics, so we were able to see at what points throughout the course the students engaged with the materials. The course was designed so that students would do readings and watch the videos before class, and every student did. They also referred back to the videos frequently, with predictable peaks in activity before assignments were due. (Of course, one key benefit of the recorded lectures is that they can keep them for reference throughout their studies, and watch them as many times as they need to.) Our plan is to interview the students and use all of the data to improve the design of the course.
We’re learning, as others have, that well-designed online or hybrid learning experiences aren’t created quickly or on a dime. The technology doesn’t have to be expensive – but the upfront investment in instructional design and creating digital assets, whether an internal or outsourced cost, is not insignificant. If you want to do more than videotape instructors, and employ gamification and other interactive elements found in some of the most engaging online instruction, there is also a significant investment in design and programming. It’s just a myth that high quality online or hybrid programs are quick and easy to design – yet another reason to get cracking.
Finally, a big reason there is no rush to change is the lack of good models, particularly at the JD level. But thoughtful models with significant investment in design are coming. One notable recent development is this month’s launch of the first ABA-accredited hybrid law program at William Mitchell College of Law in Minnesota, an alternative to its existing three year face-to-face degree. Expect more “whole program” innovation using digital tools, soon.
Perhaps these changes elsewhere will not affect us. But it’s just not plausible that the digital revolution that has upended every aspect of our lives won’t have a dramatic impact on legal education as we know it. In the words of Professor Paul Maharg, Director of the Center for Legal Education and the Profession at Australian National University College of Law, and a leading educationalist in legal education,
Face-to-face education won’t ever disappear; but it will warp, change in the digital air; and institutions who don’t think seriously about their place in the new ecology will find that their potential students, under more financial pressure and given more choice in our times than they ever had before, will migrate to institutions who do think seriously about digital.
Let’s not sit back because we still have lots of applications and think the way we do things now seems just fine. Let’s start planning, piloting and improving digital legal education. We have tools. We have no regulatory obstacles to doing more than we do now. We’re seeing ways that digital can promote active learning. So what’s stopping us?
Assistant Dean and Executive Director, OsgoodePD
After 10 years of watching students of Osgoode’s Professional LLM bring their kids to graduation, on November 18, I finally brought my kids to my own graduation.
It took me seven years to complete what is a one year full-time Masters of Education in Leadership, Higher and Adult Education. That may be some kind of record. The academic administrator in me rolls her eyes. But the lifelong learner in me says, “Yes!”
I think I took as many semesters off as I took courses. Sometimes I planned a break, other times I dropped a course mid-way through. A senior team member went on maternity leave and I couldn’t replace her, so work expanded. My father-in-law developed a terminal illness, and died. My daughters had international dance and choir competitions, in the same month. We moved, and renovated.
I had no particular career objective in mind when I started. At the time, I was new to working in Higher Education and wanted to learn more about it. But more than that, I wanted to know if I could still write a scholarly paper, and if I could still really think. Years of law practice and the business world had stripped my writing down to plain language contract drafting and bullets for PowerPoint. I wasn’t sure I could still create and communicate something with more substance.
Turns out that years of “stripped down” writing – not to mention my addiction to The New Yorker – made me a better academic writer. And a good thing too, as scholarly research had changed dramatically with the Internet. It took me a while to learn the new skills you need to find, store and retrieve the vast quantities of knowledge available to students now.
I researched and wrote papers exploring the different governance structures in Canadian Higher Education institutions and how those structures affect their ability to change, the student experience of international students from China, academic freedom in professional faculties, the teaching and learning of professionalism and competencies in professional education, a case study on implementation of internationalization strategy, and much more.
Papers were only one type of work product, however, and it turns out they were the easy part. Adult pedagogy circa 1980s law school had changed, at least in my program. Creating learner-directed activities, making multi-media presentations, creating visual representations of concepts, role playing, posting comments to chat rooms, and, yes, the dreaded group work (avoided completely in law school in the 80s) were all part of the requirements. I learned more about using new software and technologies in my studies than I had in years of work. In all, a much richer, challenging, and sometimes humbling array of assessments.
The biggest difference between being a student in my 20s and in my 50s? Back then, law school was law school. The job came later, and one didn’t have much to do with the other. This time around, the two were so closely intertwined that I managed to turn work projects into credits for independent study, with better outcomes for both. Scenarios from work were part of class discussion, for all of us. And this time, I learned as much about myself and my classmates as I did about the curriculum.
A degree is a significant undertaking. I missed a lot of weekends, and my family missed me. But with family support, some juggling, and a flexible program, you’d be surprised to find how relevant, and deeply satisfying it can be to be a middle-aged student. And at the end, you go to graduation, with your partner, and maybe with your kids.
PS. Thanks to my former and current bosses, Patrick Monahan and Lorne Sossin, who talked the talk and walked the walk on lifelong learning. Thanks to the team at OsgoodePD who cheered me on. And my deepest thanks and love to Rob, Maddie and Roz, who were unwavering in their support, and were OK with me missing stuff.
Assistant Dean and Executive Director, OsgoodePD