♫ Wake up and live, y’all!
(Wake up and live) Wake up and live now!
You see, one – one cocoa full a basket,
Whey they use you live big today: tomorrow you buried in-a casket…♫

Lyrics and music by Bob Marley, Anthony Davis, recorded by Bob Marley and The Wailers.

This post is being written up in Whistler BC while on a spring-break ski trip.  Garry sent me an email that he will be off to Jamaica this week to lie under a palm tree.  Whether it be snow or sand that calls to you, the important thing is to heed that call and take the break from your routine and live big today!

The WebMD says:

Get away — often.  It’s a fact: People who take vacations have lower stress and a less risk of heart disease — not to mention a better outlook on life and more motivation to achieve goals.

Need more motivation? Psychology Today in an article entitled “The importance of vacations to our physical and mental health” says:

Chronic stress takes its toll in part on our body’s ability to resist infection, maintain vital functions, and even ability to avoid injury. When you’re stressed out and tired, you are more likely to become ill, your arteries take a beating, and you’re more likely to have an accident. Your sleep will suffer, you won’t digest your food as well, and even the genetic material in the cells of your body may start to become altered in a bad way. Mentally, not only do you become more irritable, depressed, and anxious, but your memory will become worse and you’ll make poorer decisions. You’ll also be less fun to be with, causing you to become more isolated, lonely, and depressed.

So there are multiple reasons for taking that break!

Psychology Today goes even further:

In a 2009 study, Canadian researchers Joudrey and Wallace reported that “active” leisure pursuits (such as golf!) and taking vacations helped to buffer or ameliorate the job stress among a sample of almost 900 lawyers.

Advantage Behavioural Healthcare says in regards to vacations:

Relationships are enriched

Spending time together enriches a marriage, which strengthens the family foundation. Through traditions and rituals, such as vacations, any relationship can be enriched. Vacations and other traditions make memories and are the glue that binds us. Vacation can provide an opportunity to talk with one another, learn new skills or discover new interests.

It is not just the taking of the vacation that has benefits. The WebMD goes further:

Even better, the biggest boost in happiness comes from planning the vacation. You can feel the effects up to 8 weeks prior to your trip. And when you’re done with that retreat, start planning the next one. Simply having something to look forward to can be rewarding.

I can hardly wait to start planning the next ski break!  Wake up and live now!

-David J. Bilinsky, Whistler BC.

Are you thinking of building (or updating) your law firm’s website?

As my firm begins an overhaul of our ten-year old site, I’ve certainly learned it can be a bit of a daunting task.

Website-building for lawyers has become considerably more complicated over the last decade. The public has become much more sophisticated in its expectations of professional websites and the extension of law firms’ online presence, beyond websites to blogs and social media, creates challenges for firms seeking to maintain a consistent message and identity online.

There is no “one size fits all” solution or template that will meet every firm’s needs. Nonetheless, it will be a good idea to keep the following guidelines in mind when updating or building your law firm’s website:

1. You are writing for people, not Google. Besieged as we may be by magical claims to the contrary from the search engine optimizing (SEO) industry, trust me on this – online success is not about keywords and inbound links alone. In fact, Google is increasingly less tolerant of those who try to game it with robot text and suspicious links. Speak to your real, human readers in your online text.  If you share your professional knowledge in your own user-friendly voice, your writing will inevitably be rich with search-engine-friendly keywords without you even trying – and people, along with search engines, will find you.
2. Give real attention to your firm’s branding and your website’s graphic design. Identify your audience. Craft a central theme or message. Maintain positivity. Create a modern, crisp professional “look.” And frankly, consult with marketing and design professionals.
3. Dare to be different. Avoid overused graphic cliches like briefcases, handshakes, pens poised to sign, and the ubiquitous scales of justice. Oh, and ambulances too – no ambulances, ok?
4. Content remains king. Fill your website with high-level, plain-English legal information regarding your areas of practice and interest. The more content, the merrier. Not only will the public learn about the law from your website (and that is typically why they are searching online), the public will also be learning about your firm’s legal expertise.
5. Integrate your website with your other social media properties. Prominently display links to your blog, LinkedIn, Google+ and Twitter pages, especially if they are frequently updated with new posts. If you have blog posts that are relevant to your areas of practice, make them easy to find on your website.  Try to maintain consistent branding, logos and design themes across all platforms.
6. Use photos and video.  The best modern legal websites often feature compelling images and topical video presentations to create interest, demonstrate competencies and enhance readability. Use multimedia to reach a wider audience and build on your firm’s central messages.
7. Navigation should never be an afterthought. Ensure it is easy to get to key pages on your website from your home page – and from every page.
8. Get professional headshots done and be creative with your firm’s professional biographies. Ensure that you include contact information, Skype particulars and an email link with each biography. Make it easy for clients and prospective clients to reach you.
9. Keep it real. Your firm’s online personality should be authentic and it should closely align with your firm’s genuine offline character. Identify your firm’s strengths and points of difference – whether they involve client service, specific competencies, or your lengthy history of successes – and tactfully emphasize them online. Don’t try to clone someone else’s online presence. Above all, be yourself on your website.
10. Consider including a password-protected client portal on your website.  Client portals can be employed to enable clients to retrieve documents and perform accounting functions online.  This is the way of the future.  In the decade ahead our websites will increasingly become hubs of interaction, communication and professional activity, rather than educational and marketing vehicles, alone.  Needless to say, if you intend to be an early-adopter in this direction, ensure you have the best professional guidance on maintaining security in all transactions and interactions.
11. Ethics, ethics, ethics. Your law society’s professional conduct rules provide regulatory guidance on the do’s and don’ts of legal marketing and online professionalism. In short, read the Rules applicable to your province or territory and take them to heart. When you follow them, you make your firm – and all of  us – look good.

Happy web designing.

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

♫  Doin it right, doin it right
Doin it right, doin it right
The blues bands cookin and the drummers burnin down
Doin it right on the wrong side of town!!!  ♫

Lyrics, music and recorded by the Powder Blues.

Law firms like to think that they do things rather well.  Exceptionally well, as a matter of fact. Particularly the biggest ones.

Only problem is, not everyone agrees with that perception.  Take Casey Flaherty for example.  Casey just happens to be the General Counsel at Kia Motors America.  In his words (and this is an exact quote) “Lawyers see themselves as Tom Cruise but most of their work is drudgery.. and they suck at using computers.”

His proof?  He gave a mock assignment to lawyers that he knew should take no longer than 30 minutes to complete.

He has devised a technology audit that he gives to firms before he engages them to test their technology competence.  We are not talking sophisticated legal tools here. Casey is testing knowledge and use of basic Microsoft Office applications such as Word, Excel and Adobe Acrobat.

From the ABA Journal article by Casey Flaherty himself, he stated:

Sample tasks include:

(a) formatting a motion in Word,

(b) preparing motion exhibits in PDF, and

(c) creating an arbitration exhibit index in Excel.

The specific tasks, however, are of little importance as they are designed to test general skills. The foregoing examples could just as easily be:

(a) formatting a contract in Word,

(b) Bates stamping a document production of PDFs, or

(c) isolating pertinent performance data in Excel—or, really, any of the other myriad, routine, low-value-added tasks that lawyers regularly complete on their computers (or should).

He has given the audit 10 times.  All firms failed…some spectacularly.  Both the median and mean was 5 hours.

What does he have to say about the audit results?

My claims are much broader: a lot (of waste exists in the legal system) and enough (of that waste is attributable to technological incompetence to make this a problem worth addressing)

The real issue is that law firms (and particularly the largest ones) have absolutely no incentive to have their lawyers increase their technological knowledge.  So long as they bill by the billable hour –  meaning there are no competitive pressures forcing them to acquire greater skills, this situation will exist.  The greater hours put into a file translate to a bigger bottom line.

There is something very very fundamentally wrong here. No other business or profession has been allowed to languish on the borders of technological incompetence and still be in business.  Most if not all other business would have been driven out of business by failing to meet mounting competitive pressures.

Is there a correlation here with Access to Justice?  The middle class have been claiming that lawyers are far too expensive and out of reach for their typical legal problems for some time now.

I wonder just how long the public will stand by before they start to call for fundamental changes to the legal system in order to bring about the changes that they desire.  My co-author for this column, Garry Wise of Toronto, in reviewing this article stated that:

But in fairness to Canadian lawyers, in part, without paperless courts and automated systems for court and other filings, there is even less incentive for us to master the skills that would be necessary to put electronic documents together.  Our system simply doesn’t require that we prepare or know how to complete effective “non-papyrus” documents.

I agree with Gary ..the solution is not piece-meal.  We have to address the entire workflow of how we produce, serve, file, share, store, search, and archive legal documents. I was presenting at a CBA Immigration conference in Vancouver last week and my co-presenter Laura Best a lawyer at Embarkation Law Group asked the attendees how many people in attendance filed electronically in federal court.  Only a handful of hands went up indicating that even where e-filing is possible, lawyers are not getting on the bandwagon (Laura happens to be one of the biggest users of e-filing here in BC, I understand).

This is a knowledge management issue, it is a management issue, it is an issue where all the players in the room have to come to the table to brainstorm on how to change not only behaviours but the system itself to encourage lawyers to bring about the necessary change.

The call to arms here for lawyers, law firms and regulators is to prod, push, cajole and otherwise mandate greater change before this change is thrust upon us.  We have to become students of change and move with the technological times. Management of firms should not stand by and simply be satisfied with the status quo.  They should be bringing in IT training (complete with tests and assignments) to ensure that their lawyers are up to speed on at least basic technological tasks.  There are no lack of trainers and programs, both in house and available thru consultants for this to occur. Furthermore, court administration, judges and tribunals should be right on-side and equally looking at how their systems can be improved to increase efficiencies and effectiveness.

Perhaps another message for general counsel like Casey Flaherty is to look for smaller firms that could do it right…even if they come from the wrong side of town….

-David J. Bilinsky, Vancouver, BC.

After months of nagtext messages from my cell carrier, all promoting  my available hardware upgrades, I finally made the move several weeks ago and switched to a sparkling new iPhone 5s.

I wasn’t much interested in the new (for me) Siri functions, to be honest. I had long ago lived through my friend’ eager demonstrations of Siri’s amusing ability to handle their obscene test questions with digital grace. There was little novelty left.

Little did I realize that the technologies associated with Siri would ultimately be a pathway for my rediscovery of the long-lost art of dictation.

Back in “the day” when I first started practicing law, most lawyers dictated their written work. Old-fashioned dicta machines had been rather large and clunky appliances, but by the time of my call, battery driven machines equipped with micro-cassette tapes were the norm. They were a bit smaller than the current iPhone, but twice as heavy.

Typical workflow involved lawyers dictating on client matters, and then handing off the tapes to our assistants.  They would transcribe these tapes on their electric typewriters/early generation DOS computers, and when the tape was done, return completed, typed drafts to the dictating lawyer for review.

Since revisions to these drafts mostly involved either messy, liquid white-out solutions or re-typing of entire documents, it was in the dictating lawyers’ (and assistants’) interests to get it right the first time.  With practice, we mostly  did.

I remember well, those Sunday afternoons I spent in my early offices, nearly straddling my filing cabinet  as I rifled from file to file to file, dictating updates, reports, follow-ups, and even pleadings on each and every active matter.

As I completed dictating on a matter, I would place its paper file atop an ever-growing pile, which would be left for my assistant when all dictation was done, with tape perched on top (like a little cassette crown).

I’d feel a nearly devious sense of satisfaction, anticipating the looks on my assistants’ faces as they encountered these formidable Monday morning piles, knowing they’d be thinking, “I’m never going to get through all this stuff.”

Back then, that felt like productivity.

I tell this long tale of the past, knowing that over time, with the advent of desktops, laptops, notebooks, smartphones, and tablets, we lawyers were blessed with very effective tools to do our own typing, and little by little, dictation fell out of fashion, in my practice at least.

My new iPhone has changed all that.

What started with the rather annoying problem of a narrower keyboard that kept me clunkily hitting the microphone button in error (as I searched in vain for commas and semicolons), evolved into a re-discovery of the art of dictation, and a parallel reawakening as to just how efficient and effective a workflow tool it can be.

As you will see in the attached video, the iPhone makes it all so easy. Simply click on the microphone icon on the bottom of your keyboard, speak away, and when you’re done, the iPhone will miraculously transcribe it all before your very eyes.

(In case you’re wondering, I used my old iPhone to make the video of my new iPhone).

Dictating well is a discipline, and probably will take some practice. But I think you will see that as you master dictation, the words will flow more easily and coherently. Beyond that, ideas and insights will emerge as you literally ‘think aloud.”

Dictation may well be anathema to those who prefer a cut and paste world of fill-in-the-blanks and templates. I like those too, but frankly find that when I dictate emails and more complex documents, both the quality of my work and the detail I am able to include are superior.

Perhaps that’s because I speak more quickly than I type, and it’s simply faster and easier to dictate.

But I also find that dictation engages a different form of mental activity than typing. It’s more like free-flowing conversation or oral argument, as opposed to the distracting mechanical concentration that is necessary for typing on a keyboard, especially a tiny, mobile keyboard.

In any event, I’ve once again started to dictate in my practice. I’ve been using my iPhone to dictate emails, reporting letters and memos, in particular.

And the good news is there is no danger to the assistants in my office that the renewal of my affections with dictation will ever again leave them with insurmountable, Monday morning towers of files, tapes on top, and a full week’s worth of rote work awaiting.

The iPhone handles all that, instantly, and they remain freed up to do far more serious tasks that add real value to our collaborations.

So Today’s Tip is…

Use your iPhone to rediscover the joys of dictation.

It may make your life easier and your work better.  It may even help you get to inbox zero (and inbox hero).

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

♫  Goodbye, goodbye, goodbye my love
I can’t hide, can’t hide, can’t hide what has come…♫

Lyrics, music and recorded by Avril Lavigne.

April 8, 2014 is a significant date for users of Microsoft XP and Office 2003. On that date, support ends for both of these venerable and well-loved products.

Microsoft wants its 100 Million XP and Office 2003 users to upgrade to Windows 7 or 8 and Office 2010 or Office 365.

MS has relented on MSE (Security Essentials updates) and will continue these until July 14, 2015 but that does not mean that you should stay with these products.

The time, as they say, has come to say goodbye.  From a management perspective, your choice is to try to upgrade your software on your existing hardware or to upgrade your hardware as well as the associated operating system and Office suite.

What does end of support mean?  According to Microsoft:

It means you should take action. After April 8, 2014, there will be no new security updates, non-security hotfixes, free or paid assisted support options or online technical content updates.

Running Windows XP SP3 and Office 2003 in your environment after their end of support date may expose your company to potential risks, such as:

Security & Compliance Risks: Unsupported and unpatched environments are vulnerable to security risks. This may result in an officially recognized control failure by an internal or external audit body, leading to suspension of certifications, and/or public notification of the organization’s inability to maintain its systems and customer information.

Lack of Independent Software Vendor (ISV) & Hardware Manufacturers support: A recent industry report from Gartner Research suggests “many independent software vendors (ISVs) are unlikely to support new versions of applications on Windows XP in 2011; in 2012, it will become common.” And it may stifle access to hardware innovation: Gartner Research further notes that in 2012, most PC hardware manufacturers will stop supporting Windows XP on the majority of their new PC models.

What should you be doing?  The time is short.  Lawyers can not afford the downtime that can come with your computers becoming infected as a result of security vulnerabilities by continuing to use XP.  You need to be proactive.

You need to determine if your hardware can run Windows 7 (). However, if your computer is an older one, chances are that you will stand to benefit (and indeed may be required) to purchase a current PC (unfortunately most new computers will come with Windows 8 preinstalled – most business users will want to downgrade to Windows 7).

Once you upgrade your operating system you have to reinstall all your software by hand (you will need all the original installation disks). You will then have to test your current software to see if it will run properly under Windows 7.   Peripherals as well may no longer be compatible or may require driver updates.

The point is that time is ticking.  You need to establish a budget and book your IT support time (*they will be in short supply as well as the ‘window’ closes*).  You will want to have the full conversion, upgrades and testing all this completed in advance of April 8, 2014.

Don’t wait.  Unfortunately you can’t hide from what has come.

-David J. Bilinsky, Vancouver, BC.

Canada’s legal sector appears to be on the cusp of major change.

From the towers of Bay Street to our courthouses across the nation, we may be embarking upon a bumpy, but perhaps overdue ride of reorganization, re-prioritization and rationalization.

Last week’s sudden collapse of Heenan Blaikie and the Supreme Court of Canada’s January 23, 2014 ruling in Hryniak v Maudlin could be harbingers of the revolution ahead.

While the Heenan, Blaikie debacle may have more, ultimately, to teach us about human shortcomings and hubris than the perils of the immediate legal marketplace, it does underscore the reality that defections, shakeups, acquisitions and takeovers have become the norm among our nations largest law firms.

The formerly stable, blue-chip legacy firms of 30 years ago have, by and large, been assimilated, merged and swallowed up into huge, global legal enterprises in which I suspect the participation of Canadian branch offices reflects a mere footnote in both balance sheets and boardroom influence.

We can only predict that this trend is bound to continue, whether it be because of internal politics and intrigue, changing client requirements and demands, or the mere, unavoidable economies of scale in an era of increasing globalization and resultingly, decreasing autonomy within Canada’s largest firms.

This cannot help but have a significant impact on the environments in which many of Canada’s lawyers work, the way they conduct business, and the expectations they may safely maintain about the future.

For those of us who work in smaller environments, however, our reactions as outside observers may range from gossipy fascination to sheer relief that our professional lives are not subject on a day-to-day basis to such unexpected tremors and eruptions.

Nonetheless, the Supreme Court’s ruling in Hyriniak leaves the rest of us with much to ponder about the future of lawyering in our civil justice system.

The most interesting aspect of this ruling remains our Supremes’ unanimous admonition to the nation’s court administrators and judges that they had better ready themselves and their judicial systems for a flood of summary judgment motions, aimed at achieving cost-effective finality, at the likely expense of the civil trial, as we have long known it.

This may prove to be a revolutionary moment in Canadian civil jurisprudence.

Our lower courts have long played a game of dance and dodge when it comes to harnessing the potential of summary judgment proceedings to render final determinations. With every Rule change that urged increasing use of summary judgment motions, our Courts responded to this mandate by establishing extraordinarily high, often ambiguous thresholds of proof and certainty as prerequisites for their preparedness to rule on a final basis.

Underlying this hesitation was a genuine deference by our judges to the civil trial as a time-honored and tested best methodology for getting to the truth.

The prohibitive cost of civil trials, however, has made such “getting to the truth” a near impossibility for most. As a result, the civil trial remains a relatively rare occurrence in the lives of even the most seasoned civil litigation practitioners.

In Ontario, the costs consequences of losing a summary judgment motion and lengthy delays in the availability of motion dates have effectively thwarted the summary judgment motion as an alternate process for most ordinary litigants.

The result has been an access to justice nightmare.  And for practical purposes, our lofty ideals regarding the civil trial process have been reduced for most to the stuff of folklore and ancient jurisprudential history.

One is left to wonder whether the more ready availability of summary judgment proceedings in civil matters will ultimately lead to more courts ruling in more cases, with fewer cases settling.  Will we observe a corresponding decline in the prohibitive influence of legal fees as a reason for avoiding the legal process altogether?

For lawyers, this change may require a heightened emphasis upon court advocacy, rather than negotiation and mediation skills, as the primary tool in our box for achieving our clients’ objectives.

More broadly, the question remains – will this new world of summary judgment lead to better, more fair outcomes, or will we be left with a “quick and dirty” justice system that will serve to further frustrate and disgruntle the public and the profession?

We are about to find out, it appears.

In either event, the theme of our times in the legal profession will remain “change.”

For new practitioners this may be a daunting experience.  Will our future success stories be comprised only of those who will see and seize the opportunities in the new horizon that is emerging?

How do we plan for a future in which the stability of our largest firms is uncertain, the civil trial will be relegated to the dustbins of history for the average citizen, and changes are now emerging with ever increasing speed?  I don’t know the answer to that questions, but I do suspect that is now particularly critical for law firms and individual lawyers to take stock.

And that is today’s SlawTip: Take stock and plan ahead.

Start drawing the roadmap for your firm ‘s emergence in the new legal frontier we are only beginning to see. Assess where your practice is, where you would like to get, where your talents lie, and what the opportunities and obstacles look like for you and your firm in the future.

And expect the unexpected.

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

♫ Even though you’re going through hell
Just keep on going
Let the demons dwell
Just wish them well…♫

 Lyrics by Neil Peart, music by Geddy Lee & Alex Lifeson, recorded by Rush.

Yesterday I taught the first class of the 2014 term on legal technology for the Internationally Trained Lawyer’s Program at the University of Toronto law school. We started the session with everyone giving a bit of background on who there are, where they went to law school, what type of law they practiced in their home country and hope to practice following their call here in Canada and what their background was in technology. They also had to provide one quirky fact about themselves that no one would know which provided a light-hearted fun aspect to the course.

Notwithstanding the humour introduced by the quirky question responses, two factors struck me in listening to the stories of these bright and enthusiastic lawyers…one of which being the challenges and personal sacrifices that they had undertaken in order to cross half the globe and seek qualification here in Canada.  The second aspect was how deeply technology has penetrated how we practice law in Canada and the enormity of their task – to not only learn a new legal system but to learn how one interacts with that system using the myriad of tools and technologies available to us.

There is the analogy of the boiling frog – if you put a frog into a pot of hot water, the frog will immediately leap out.  But if you put a frog into a pot of cold water and slowly increase the temperature, the frog apparently does not realize what is happening…the frog slowly adjusts to the increase in temperature (ultimately for its detriment…but I digress).  The point is that technology has grown up around us to the point where we take it all for granted.

It is only when you are faced with the prospect of learning all that we take for granted that you realize how lawyers in Canada have adjusted to incorporating technology into all that we do.  Unfortunately there are still a number of lawyers who do not embrace the benefits of technology and what we can achieve on behalf of our clients by applying technology appropriately.  It is sad that some of this group wear the distinction of not knowing how to use technology as some kind of mark of distiction.

It also makes one realize the efficiencies and effectiveness that we have achieved as a result of incorporating technology into the practice of law.  We have been through a tremendous period of change from the time of the introduction of the first personal computers into practice. Now with the Internet, collaborative technologies, social media, cloud computing and all the mobile devices from smartphones to iPads and Android devices, we have new and innovative ways to practice from wherever we are with clients that are scattered all over the globe.

I can’t think of a more exciting time to be a lawyer in Canada.  I am encouraged and humbled by the determination of those in this cohort to come up to speed with all aspects of how to practice law in Canada.  I wish them well!

So you met with a new litigation client.

Your first take on her proposed lawsuit was that liability was a virtual slam-dunk and that her damages would be assessed in the area of $25,000, maybe $30,000 if you “hit a home run.”

Conservatively, you advised your client of your opinion that her claims appeared to have a great deal of merit and that a court’s assessment would likely be in the $20,000 to $25,000 range.

So imagine your client’s shock – and yours – when a pre-trial judge ultimately opined that this claim wasn’t very strong at all.  In fact, the judge’s view was that if liability could be established, which was by no means certain, damages were likely to be assessed at approximately $5,000. Perhaps $10,000 on a very fortuitous day.

So what happened?

Well, possibly the judge’s view wasn’t correct.

But more likely, what happened was “the predictable.” In fact, we can safely predict that the legal profession’s predictions aren’t always so safe, at all.

In fact, when it comes to predicting outcomes, lawyers, as as class,  tend to be unrealistically overconfident.

At least, that’s what the research tells us.

A 2010 study compared lawyers’ litigation forecasts with actual file results and found a significant proportion of lawyers were notably over-optimistic in their case assessments.  As the study’s authors noted in Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes:

Lawyers’ litigation forecasts play an integral role in the justice system. In the course of  litigation, lawyers constantly make strategic decisions and/or advise their clients on the basis of their perceptions and predictions of case outcomes. The study investigated the realism in predictions by a sample of attorneys (n
481) across the United States who specified a minimum goal to achieve in a case set for trial. They estimated their chances of meeting this goal by providing a confidence estimate. After the cases were resolved, case outcomes were compared with the predictions. Overall, lawyers were overconfident in their predictions, and calibration did not increase with years of legal experience. Female lawyers were slightly better calibrated than their male counterparts and showed evidence of less overconfidence. In an attempt to reduce overconfidence, some lawyers were asked to generate reasons why they might not achieve their stated goals. This manipulation did not improve calibration.

…In 32% of the cases, the final case outcome matched the goal set by the lawyers. Among the remaining cases, 24% of the outcomes exceeded the lawyers’ minimum goals, and 44% of the outcomes were less satisfactory than the minimum goals set by the lawyers. A number of lawyers who did not achieve the predicted goal erred on the side of underconfidence, because their minimum goals were too modest. However, a larger proportion of the prediction deficits came from lawyers who erred in the direction of overconfidence.

The take-away from this research is that  legal professionals appear to tend toward optimistic, but unrealistic bias in favour of our own clients’ positions.  We should thus exercise caution in assessing – and relying on – our own predictive abilities. 

Our early impressions about the merits of our clients’ claims may be coloured by the professional blind spots identified in this research.  We may also be swayed by our natural empathy for our clients or by incomplete information on opposing parties’ positions that may be available at early stages. 

In short, we should manage our own expectations about results – and the client expectations they generate – with extreme care.

Which brings us  to today’s Practice Tip:

Before predicting outcomes, take a closer look. Reality checking ought to start with us, not with pre-trial judges, months or years after the fact.

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

♫ more productive
comfortable
not drinking too much
regular exercise at the gym (3 days a week)
getting on better with your associate employee contemporaries
at ease
eating well (no more microwave dinners and saturated fats)
a patient better driver…♫

Lyrics and Music by: Thom Yorke, Jonny Greenwood, Ed O’Brien, Colin Greenwood and Phil Selway, recorded by Radiohead.

I don’t know about you, but I have been largely disillusioned by the ‘traditional’ ways of trying to be more productive. They have come to feel like, well, candy-coated panaceas. And frankly, if they worked, then all of us would be a whole lot more productive. But, at least for most of us,  they don’t. I suspect – if I am any example, that they don’t work for the majority of us because at the heart, we need fresh ways to get more productive than the ‘make up a to-do list’ every morning before you start work..yadda yadda….

So it was encouraging to read “Six Ideas For a More Productive Work Day” by Kit Hickey, co-founder of Ministry of Supply on CEO.com. Seems she has been trying to figure out how to be more productive, too. Oh and she noticed that her well-being and happiness at the workplace was tied to her productively.

Her first suggestion? Work out Regularly. This one REALLY resonated with me.  You see, I had some surgery this last November. Awaiting the surgery, I had to curtail my activites by necessity. Before this, for the last 30 years I have been a runner. More particularly, I ran at noon. I was happy and productive. I LOVED running at noon. But waiting for the surgery, I had to revert to the lifestyle of eating my lunch at my desk and working working working …long hours – 12 hours most days with no real workouts or breaks. Could I say my productivity climbed as a result of the long hours? No. Was I happier at my desk? No.

Kit said that her best ideas came to her when she was running. I totally agree! My columns, papers and articles largely began as ideas on a run. Running made Kit feel more productive and creative. I echo that correlation. It also increased her well-being.

So the first hacker tip to get more productive at work: is to get away from it. Go for a run (or swim or whatever works for you). Tune up your body and let your mind think freely. I think you will be amazed at how this can change your life.

Kit’s other suggestions? Take meetings outside of the office. She schedules meetings with exercise classes. Wow.

Mix it up – don’t just work from your desk in your office. Find out what works for you and give yourself permission to follow those ideas.

Bring your dog to work. Well, ok, here I would have to say that I don’t have a dog. I am terribly allergic to them. So – Kit – this one is all yours. I can understand what you are trying to do here.

Evaluate work output, not desk time. Yes Yes Yes! We have been telling lawyers to move away from billable hours as a metric of work for some time. Why ? It is an input metric..”how much time did you put into something”..rather than ..”what did you achieve in that time?”  If you evaluate results (and not just effort) you have moved yourself into a new paradigm. You can adjust your billing as well to bill for results and not effort.

Her sixth suggestion? Set aside distraction-free blocks for creative work. Again I can’t agree more. Block off your calendar for specific tasks, tell the office ‘no interruptions’ unless it is truly an emergency and give yourself permission to go at the matter at hand.

She advises that you shouldn’t be afraid to experiment. After all, as Sherlock Holmes would say: “How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?” If the ‘traditional’ ways of trying to be more productive are impossible, then whatever remains, however improbable, must be the truth.

–David J. Bilinsky, Vancouver, BC. (@David_Bilinsky on Twitter) 

And since this is my first Tips post of 2014, a belated happy new year to all our readers.

Feel free to ask your own practice-related questions in the comments below or via Twitter.

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

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