Archive for the ‘legal writing’ Category

The Trial Warrior Blog, But Not Yours Truly, Gets Cited By An Ontario Court

January 23, 2014

[15]           The plaintiffs rely on a document entitled The Trial Warrior Blog dated November 11, 2013 that discusses Kaynes v. BP2013 ONSC 5802 (CanLII), 2013 ONSC 5802 (“Kaynes”). The plaintiffs rely on the fact that the defendant Penn West’s shares are traded over the Toronto Stock Exchange in support of their allegation that Penn West carries on business in Ontario.  In Kaynes, an Ontario Court assumed jurisdiction over a foreign issuer in a securities class action.  TheKaynes decision can be readily distinguished from the claims in this action because the plaintiff in Kaynes sought leave to bring a statutory action for secondary market representation under Part XXIII.I of the Securities Act, R.S.O., 1990, c. S.5, as a result of alleged misrepresentations in the defendant’s prospectus. The Court considered the analysis in Van Breda and held that the alleged “statutory tort” was a new connecting factor created by section 138.3 of the Securities ActThere are no such claims nor is there any allegation of a breach of an Ontario statute in this case.

Manson v. Canetic Resources Ltd., 2014 ONSC 261 (CanLII), per Beaudoin J.

Well, it’s more than a document, it’s a blog post: Antonin I. Pribetic, “Ontario Court Assumes Jurisdiction Over Foreign Issuer in Securities Class Action”, The Trial Warrior Blog: , October 24, 2013) .

Still, I’m pleased that self-represented plaintiffs took the time to cite The Trial Warrior Blog, even without author or link attribution.

Carry on.

How To Murder Your Professional Reputation Online

June 22, 2012
Macbeth Consulting the Vision of the Armed Hea...

Macbeth Consulting the Vision of the Armed Head. By Henry Fuseli, 1793–94. Folger Shakespeare Library, Washington. (Photo credit: Wikipedia)

MACDUFF: Confusion now hath made his masterpiece.
Most sacrilegious murther hath broke ope 
The Lord’s anointed temple and stole thence
The life o’ the building.

William Shakespeare’s Macbeth, ACT II, Scene III

Spam comments are a scourge of the internet. Lately, I have received an average of 100 spam comments per day here, most, if not all, caught by the Aksimet spam filter.

All of these generic pharmaceutical products sound wonderful and I am sure they will give lasting relief, in different measure. The prOn spam, though, lacks any creativity or romance. Aside from the link-love frontal assaults, where’s the love?

But I digress.

I also regularly receive unsolicited email invites from marketing firms and self-described ‘freelance writers’ mewling and begging to write guest posts on my blawg. Strangely, none of these earnest requests are from lawyers, law students or anyone remotely interested in law.

Go figure. (more…)

Ghostwriting, Ghostblawging and Ghostbusting

August 3, 2011
Logo used by the "Ghostbusters" in t...

Image via Wikipedia

Via an August 2nd, 2011 press release from the University of Toronto-Faculty of Law Blog: Academics fronting ghostwritten medical journal articles as ‘guest authors’ should be charged with fraud, say UofT law professors:

Ghostwriting and guest authoring in industry-controlled research raise ‘serious ethical and legal concerns, bearing on integrity of medical research and scientific evidence used in legal disputes’

Here is the SSRN abstract to the article by Professors Simon Stern and Trudo Lemmens (University of Toronto-Faculty of Law) entitled “Legal Remedies for Medical Ghostwriting: Imposing Fraud Liability on Guest Authors of Ghostwritten Articles”: (more…)

To My Fellow “Rakofsky 74’ers”: I Salute You

May 13, 2011

Based upon recent Twitter reports, I am purportedly the only non-U.S. blawger (along with my law firm) named in the Rakofsky v. The Internet case (credit: Scott H. Greenfield, Esq.© ).

I will demur in disclosing my position on the merits of the defamation lawsuit, since I haven’t read it yet. Personally, I think that any defamation claim arising from my post is resoundingly [redacted] and I strongly recommend that both the plaintiff and his counsel take my advice and  go [redacted].

It’s not as though I don’t stand behind the one-line statement about Rakofsky made  in my original post, or the fact that truth is an absolute defence to a defamation claim in pretty much any jurisdiction that upholds the rule of law and protects freedom of expression.

It’s just that as someone who practices defamation law and knows a thing or two about conflict of laws and jurisdiction, now is not the time to express my legal position or my personal opinions.

I emphasize the phrase “personal opinions” for a number of reasons, but mostly because this lawsuit presents a variety of teaching moments, some of which have already been amplified by recent follow-up posts by some of my fellow “Rakofsky 74” cohorts such as:

I do have a few musings that I would like to share, and to inject some legalese,  “without limiting the generality of the foregoing”:

1. This is a personal blawg, not a professional or firm-related blawg. Readers can easily find my blawg disclaimer in the side-bar which reads:


This is a personal blawg. The views expressed and the content provided on this blawg (or on Twitter for that matter) is for nonprofit educational purposes and reflect my personal, not my professional, opinions. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this blawg does not create a lawyer-client relationship. If you need legal assistance, consult a lawyer in your jurisdiction. If you want to talk to me directly, call my office.

The side-bar also conveniently contains Creative Commons non-commercial copyright notice:

“This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.”

2.  I am willfully blind. I have deliberately averted my gaze by not reading the plaintiff’s complaint linked in various posts and on Twitter. My natural sense of curiosity is tempered by 18 years of legal experience, a considerable amount of which time has focused on international litigation and arbitration, which invariably implicates issues of subject-matter and personal jurisdiction, all of which informs me on how not to submit, attorn or waive jurisdictional arguments.

3.  Social media is often maligned, and I am the first to acknowledge that I have joined in the maligning, but not the malingering. There are intangible benefits to blawging and Twittering, aside from expressing and sharing one’s views on the intersection of law, politics and society.  There is also the inter-connectedness and comaraderie within the Blawgosphere; albeit the connections are virtual in most cases, until the inevitable “tweet-up” in New York, although if Scott Greenfield is hosting, he will likely insist on calling it a “twit-up”.

4. Finally, while I am grateful to Al Gore for inventing the interwebz and to Google ® for making legal research so much easier, a h/t must be extended to Mark W. Bennett and Scott H. Greenfield, each of whom pointed out the New York Long Arm Statute § 302. which reads:

§ 302. Personal jurisdiction by acts of non-domiciliaries

(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or

2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or

3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or

(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or

4. owns, uses or possesses any real property situated within the state. [emphasis added]

Readers may be interested in two companion decisions by the Honourable Judge Madden of the Supreme Court of New York applying § 302 of the New York Long-Arm Statute to defamation actions against out-of-state defendants:

Henderson v Phillips, 2010 NY Slip Op 31654(U)  (Sup Ct, NY Co),(June 28, 2010) Docket Number: 110632/09 per J.A. Madden, J.

Gary Null & Associates v. Phillips , 2010 NY Slip Op 20280 [29 Misc 3d 245] (June 28, 2010) (Sup Ct, NY Co), Docket Number: 110508/09 per J.A. Madden, J.

To my fellow “Rakofsky 74’ers”: I Salute You. 

Lebovits on Persuasive Legal Writing for Lawyers (Parts I and II)

May 19, 2010
Gerald Lebovits (St. John’s University – School of Law; Columbia University – Law School) has a great two-part article on legal writing posted on SSRN entitled: “Persuasive Writing for Lawyers – Part I” New York State Bar Association Journal, Vol. 82, No. 2, p. 64, February 2010 and “Persuasive Writing for Lawyers-Part II” New York State Bar Association Journal, Vol. 82, No. 3. p. 64, March/April 2010.

In the first part, the author offers the key elements to successful written advocacy: preparation, organization, honesty, brevity, and editing. As Lebovits notes:

“Winning writing is persuasive writing. For you to persuade, readers, especially judges, must believe that you, as a lawyer, seek the correct result and that you have the arguments, fact, and law to support it. Your job is to help them.

Judges are busy, skeptical professionals. They can spare but limited time to consider your case. Judges must be able to extract the gist of your case quickly. You must write effectively by transmitting only necessary information favoring your position. The way to persuade is to assert your position with accurate, confident, credible, simple, short, and strong arguments supported by good storytelling and citations to authority, all written in clear, concise, precise, and plain English. To persuade, you must make it easy for the court to rule for your client and to want to rule for your client.”

In the second part, the author focuses on the three pillars of effective written advocacy: honesty, brevity and revision.

“To be persuaded, judges must believe in you, not merely in your arguments. Messengers count for as much as the message. Judges will believe in you if you prove your case without distractions and overpromising and if you make them feel smart, not stupid.

Respect the court’s time. Be concise and succinct without sacrificing clarity. Judges will thank you by maintaining interest.

Through the writing process, especially between drafts, continuously edit to improve content, organization, citing, sentence and paragraph structure, and word choice. When you’ve written a final draft, you can start proofreading to spot errors. Don’t rush this process. Your final product will be greatly improved if you devote the time to turn an average product into a worthy one.”

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