A recent judgment in his client’s favour reinforces the right of lawyers to pursue matrimonial assets in family law proceedings when past accounts have not been paid, even when the ownership of that property is in dispute, says Toronto litigator Jonathan Miller.

“The decision echoes previous judgments by the Supreme Court over the past 20 years when dealing with similar issues,” says Miller, an associate with the Toronto office of Shibley Righton LLP.

People planning to represent themselves in court should take the time to learn about the process and their obligations — and opposing legal counsel should also assist as much as possible in those circumstances, says Toronto litigator Jonathan Miller.

“Some people can’t afford to hire a lawyer, yet still don’t qualify for legal aid, so they often decide to represent themselves,” says Miller, an associate with the Toronto office of Shibley Righton LLP. “But if they don’t have experience with the legal system, these people don’t know what they don’t know.”

Toronto litigator Jonathan Miller tells The Lawyer’s Daily that it’s commendable for British Columbia to look at ways to improve technology in its court system.

A new online service should appeal to people who want simple wills at a low cost, but there is still a potential for misuse, says Toronto civil litigator Jonathan Miller.

“This generation spends so much time online, so this is the next logical next step,” says Miller, associate with the Toronto office of Shibley Righton LLP.

He cites an online article about a Toronto-based startup that indicates its programs can help people create three types of wills without utilizing the services of a lawyer.

According to the article, users fill in information about their beneficiaries, how they want to divide up their estate, and who will be the executor.

A basic will can be drawn up for $99, or users can designate a power of attorney for $150, or they can do both for $250, says the article.

“For many people, this service provides a simple way to go about creating a will, especially for those who don’t have complex families,” Miller tells AdvocateDaily.com.

In the past, he says people could attempt to do the same sort of thing by ordering a home will kit in the mail.

“This is the next step in that evolution, but this utilizes online technology.”

Miller says the service is not currently a threat to traditional estate lawyers since the website is only able to handle very basic wills, such as those where everything goes to the surviving spouse, or where certain gifts are given to specific people.

“Those wanting to do something a little bit more complicated should still see a lawyer,” he says, giving the example of a will that spells out the care and funding for dependent children.

According to the story, the startup “worked with estate lawyers to help create all the legal content and flow of the documents,” and instructions are included “for how to make it legally valid.”

Miller says the Succession Law Reform Act states that wills do not require a lawyer’s signature, but they still need to be witnessed by two people who are not listed as beneficiaries.

His main concern with this service is that it could potentially be misused by those making a will on someone else’s behalf.

“Someone could create a will for mom and dad, and have them sign it without them really knowing where the money is going after they die.”

Miller says preventing that form of financial impropriety is one of the pivotal roles a lawyer plays when drawing up a will in person.

“They make sure the testator’s intentions are truly expressed in their will,” he says.

“Because of the lack of complexity in the wills this service can prepare, at least at this point, I can see the potential for abuse, but it’s not necessarily very high.”

Miller says people intimidated by the idea of going to a lawyer may be drawn to this service, as well as those not willing to pay for regular legal service.

“In simple scenarios, perhaps this is a good way for them to get started, but once the estate starts evolving to include care of dependent children and more complex ways of distributing assets, people will need to get a lawyer involved,” he says.

Having a robot successfully mediate a fee dispute is a great first step in showing how artificial intelligence (AI) can be used in our legal system, says Toronto civil and commercial litigator Jonathan Miller.

“I'm quite an advocate for employing technology to make the legal process more accessible and more efficient,” says Miller, associate with the Toronto office of Shibley Righton LLP.

“This seems like a reasonable tool to help with that,” he tells AdvocateDaily.com.

According to a recent article, the “online tool, which uses AI algorithms in place of a human mediator,” settled the three-month-long dispute in less than an hour.

“These robotic mediators certainly have their place,” says Miller, “and it's exciting to see that technology is being used in a way to facilitate the legal process.”

The article says the software was developed by a British Columbia company.

“I’ve never used it,” says Miller, “but I think it’s an exciting prospect for the legal profession. Some judges have already said they believe lawyers should be using more AI to reduce costs.”

Miller says this program can only be used in cases where there isn't an issue of who's paying whom, nor of liability.

“It is limited to discrete issues that can be solved by a numerical decision,” he says,

The developer’s website gives the example of a telephone company going after a customer who has $2,400 in outstanding fees. He agrees he is delinquent in his payments but says he cannot afford that amount.

“Each party takes turns making offers using two sliders,” Miller says, explaining the first slider is visible to the other side, and the second one is not, as it indicates the maximum or minimum that party is prepared to offer.

Once the two sides overlap in their offers, he says the software announces a settlement has been reached.

“This will only work for simple cases without complicating issues,” says Miller, “particularly where there isn’t an issue of liability.”

With developments in AI, he expects the software will eventually be able to settle more complex cases.

“I think it can be expanded beyond being a simply a numerical settlement tool,” Miller says, “and be tailored to particular areas of law.”

He gives the example of an employment case, where the mediator must place a value on such factors as years of service, stock ownership and vacation time.

“There are several variables in most lawsuits that will come into play in mediation negotiation before both sides can arrive at a number,” Miller says.

“This program doesn’t account for that yet, but AI firms have to start somewhere.”

He says the reaction to this case will give insight into the legal community's willingness to use robotics in their work.

“When both sides are very practical and look at their dispute as simply a numbers issue, then something like this could be effective,” Miller says.

He predicts robotic settlement will catch on in municipalities such as Toronto or Windsor, where mediation is mandatory.

“A tool like this may be able to help settle simpler issues where a dollar value is being disputed,” Miller says.

“The software can help solve those issues, so the mediator’s time can be spent focusing on more complex problems.”

In a broad context, he says there is a real place for AI across our legal system.

“There are two extremes when it comes to this issue, with some people believing that AI is going to take over the judicial system, while others say it has no place in our courts.”

Miller says he is excited by the potential it offers.

Counsel must develop strong communication skills if they hope to keep client expectations in check when it comes to a potential settlement, Toronto civil and commercial litigator Jonathan Miller tells AdvocateDaily.com.

Miller, associate with the Toronto office of Shibley Righton LLP, says he begins thinking about how to manage a client’s expectations from the very beginning of a file.

“If you don’t promise someone the moon, then hopefully they won’t be expecting it, but managing expectations is very much an ongoing process,” he says. “As things progress, opinions can change, and you might have to revise the advice you’ve given them in terms of recovery or loss. But if you set the stage early, it’s easier to adjust those expectations down the road.”

Miller says crafting a claim can be a particularly challenging time, especially when acting for a plaintiff with little experience in the legal realm. Lawyers may wish to advance claims under certain heads of damages for tactical reasons, even if the chances of success are small, he adds.

Problems can arise when clients allow their beliefs to stand in the way of a potentially favourable settlement, and Miller says lawyers shouldn’t be shy about confronting a skeptical plaintiff who wants to hold out for more.

“As a young lawyer, it can be difficult to wrangle your client a little, especially when you have to tell them that they're being unreasonable,” he says. “But it’s also important and valuable for young lawyers to deal with these kinds of situations early in their career, and learn how to speak with clients to appropriately manage expectations about what they can actually recover as part of a negotiated settlement.

“As you become involved with larger and more sophisticated files, you’re going to come across clients with their own opinions about what they’re entitled to, and it’s your obligation to make sure they’re properly informed about the risks,” Miller says.

In one recent case involving a severance package offered to his client by a former employer, Miller had to explain how a risky additional claim could potentially quadruple the value of the damages.

“But it was one of those cases where the new claim was not a sure thing by any means, and we had to decide whether it was worth pursuing,” he says.

After taking into consideration the risks, stress, cost and time associated with a lawsuit, his client elected to settle the matter with Miller’s help, before resorting to litigation.

“The client was reasonable and had certain expectations about what they wanted to recover,” Miller says. “My job was to help them understand what was beyond the scope of a realistic settlement, what they have to dig in and fight for, and what they’re prepared to risk in order to recover as much as possible.”

While more judges are assessing costs in cases where artificial intelligence (AI) could have reduced the number of billable hours, there are still a number of unanswered questions surrounding its use, says Toronto civil and commercial litigator Jonathan Miller.

“Judges are prepared to tell lawyers that AI could have been used in court preparation. They’re saying, ‘You shouldn’t be entitled to all the costs you incurred to do that research,’” Miller tells AdvocateDaily.com.

He says there are a number of online sources, such as CanLII, that help lawyers find and compile information, but there are also companies developing AI research to make searches more efficient.

“In some cases, you can plug in a set of parameters, and it will look at case law and say, ‘Here’s your answer,’” says Miller, an associate with the Toronto office of Shibley Righton LLP.

He recently explored an AI program focusing on employment law, and while enticing, he says there are still many questions left unanswered about the new technology.

“You input certain information, and it will tell you what case law says about a reasonable notice period, for example,” he explains. “I can definitely see the use of something like that, but I have questions such as, how many variables can you add?”

There are also factual differences in various cases, Miller says.

“I wonder to what extent the facts of a case get incorporated into the research?”

He says judges have been getting more vocal about using technology to improve the speed at which cases proceed and to lessen costs.

In this case, a judge suggested AI would have reduced counsel’s bill, Miller says.

However, this was not a complex case, he says, so it’s fair for a judge to suggest that AI could have done it faster and at less expense.

Miller says there are still many factors left up to the discretion of the court that computer programs can’t take into account.

“There are a variety of things a judge would want to consider, such as the personal circumstance of an individual, or actions taken by a defendant, for example. They all factor into the decision,” he says.

Miller doesn’t believe artificial intelligence will one day replace lawyers, but it could reduce the number of their billable hours.

“The interpretations of risks and liabilities can’t be made by AI, and a layperson would still need legal assistance,” he says.

“Lawyers will still play an important role in translating the information and flagging hazards. The one thing AI can’t account for — at least at this point — is the human factor,” says Miller.

A key concern with the use of artificial intelligence for the legal profession is the confidentiality of information processed, he says.

While recently studying one company’s AI solutions, Miller noted that users were alerted that the system would endeavour to keep the client’s information confidential.

“It’s possible that based on the details you submit, someone could learn information about the user or your client,” he says. “You would then need your client to sign off on AI use or find a way to get the information needed without using someone’s name.”

Miller says there are definite pitfalls with artificial intelligence in legal work, but he believes it’s here to stay.

“I do think it’s a tool that the profession can make use of,” he says. “We’d be foolish to think it’s not going to have an impact on how we practise law.”

A fatal accident involving a self-driving car, though tragic in its outcome, will help regulators and manufacturers answer important questions as autonomous vehicles are more fully developed, says Toronto civil and commercial litigator Jonathan Miller.

“What I took away from this incident is that it will provide a test case and give some advance warning of issues that developers and users of this technology need to consider and question before these vehicles are put on the road,” says Miller, an associate with the Toronto office of Shibley Righton LLP.

The accident, which occurred when a pedestrian was struck while walking her bike across a poorly lit road in Arizona, is believed to be the first time an autonomous vehicle has been linked to a pedestrian death, The New York Times reports.

“I’m not aware of a lawsuit being launched yet, but I think that whatever comes out of this case, it will get a significant amount of attention because there are a number of issues that could come up,” Miller tells AdvocateDaily.com.

“I’ve read comments about some of those issues — like including who’s responsible: Is it the ride-sharing company for using an autonomous vehicle that isn’t necessarily as safe as we want it to be? Does the vehicle manufacturer bear responsibility for using or selling that technology when it’s not as safe as it could be? And does the safety driver who was behind the wheel bear any responsibility?”

The popular ride-sharing company was testing autonomous vehicles on roadways at the time of the accident, but it has since stopped the program in several cities, including Toronto, Phoenix, Pittsburgh and San Francisco, the CBC reports, noting that in Ontario, they have been used in a pilot project since January 2016.

Video of the safety driver in Arizona suggests that he wasn’t paying attention, Miller says, adding that Ontario’s pilot project “requires that there still be a human ‘driver’ behind the wheel in case the vehicle isn’t reacting and the human needs to respond. Had the driver in this particular accident been paying attention, maybe he could have done something to avoid the accident.”

But, Miller notes, it’s difficult to know if the driver was at fault because the pedestrian was reportedly crossing on a dark street.

“It may not have been an avoidable accident, so we’ll see how the authorities deal with it,” he says.

“One of the difficulties they face in programming these vehicles is the potential irrational or unexpected responses of people around them. There’s all this talk about how autonomous vehicles will be able to communicate with each other, so if the car ahead is braking, the car behind will brake automatically,” Miller says.

“But there hasn’t been as much discussion about the interaction between the computer-driven vehicle and the humans around it — whether that be someone who’s not crossing at a crosswalk, or a cyclist or a pedestrian on their phone who suddenly walks into the street. It would be hard to program for these things, but that is a reality that developers of this technology will face.”

That leads to difficult moral issues, he says.

“I think a question that these developers have to struggle with — and where regulators and lawmakers can assist — is what happens when an autonomous vehicle has to assess whether it’s better to hit a pedestrian or make a potentially very dangerous move that could endanger its passengers or an oncoming vehicle.

“How do they go about calculating that risk and programming it into the system? How does the computer decide between two equally terrible results?”

Miller points to a report prepared by KPMG International called “Autonomous Vehicles Readiness Index,” which assesses the “openness and preparedness” for the vehicles in 20 countries.

The study ranked countries in four categories — policy and legislation, technology and innovation, infrastructure, and consumer acceptance — and Canada placed seventh overall. The Netherlands, Singapore and the United States were in the top three spots.

“I think that means we have some work to do in terms of understanding the technology and being prepared for the implications of computers having to decide between hitting one pedestrian or potentially rolling the vehicle with four passengers inside,” he says.

Business deals and agreements between family members should be confirmed with a written contract to protect the interests of all of the parties involved, says Toronto civil and commercial litigator Jonathan Miller.

Handshakes and verbal agreements are fraught with the possibility of becoming a point of contention between the people involved when trying to recall just what was agreed to, says Miller, an associate with the Toronto office of Shibley Righton LLP.

"A handshake and a couple of conversations" isn’t exactly the best evidence, he tells AdvocateDaily.com.

"Plan for the worst. It’s an awkward conversation to have at the beginning, particularly with business contacts and family members, but having the discussion up front can help prevent headaches down the road if things go sour," Miller says.

"It’s along the same lines as going into a marriage with a prenuptial agreement."

Miller cites three files he’s handling where unwritten deals are being contested. One case involves a family; the second is among acquaintances in a business deal; and the third deals with an arm’s-length, third-party relationship.

Agreements and deals should be formalized on paper, says Miller, no matter what the relationship is between those involved.

"I'm not saying it has to be so formal that you get lawyers involved in drafting the deal, but something that sets out the terms of the arrangement," he says.

"I think about this in the family context specifically because this problem often comes up in estate disputes."

It could be a scenario where a child claims that he and his now-deceased mother had an agreement, but there is no document to support the claim.

"You have Child A saying they have this agreement and Child B is trying to fulfil their role as the estate trustee and doesn’t know anything about it, and says, 'You have to pay back the money,’ or ‘You don’t get the money,’ or whatever the case may be," he says.

Without an agreement, it’s difficult for people to accept an estate claim, Miller says.

He suggests the bare minimum should be written into an agreement involving a family where, for example, a parent lends money to a child. It should at least include the amount, whether there’s any interest and the expected date of repayment.

"It could be as simple as an IOU and what the loan was for," Miller says. In business, however, a few more details should be documented, he adds.

"It doesn’t necessarily have to be a full-blown contract reviewed by lawyers, but it should set out the general terms of the agreement."

Miller cites an example of a case he’s handling where a tenant apparently paid for renovations to the property, but there was no agreement in place with the landlord "and then it becomes a question of who’s responsible for paying for the work."

"Just setting out the basic structure of how that’s going to work can really prevent headaches later.”

He says family members ought to look at a formalized agreement as a sort of insurance plan that prevents conflict in case something goes wrong.

"Families start out with the best of intentions, but you never know what can create a rift between people," Miller says.

"And so it goes back to trying to avoid this headache later on for the people who are left trying to figure out what the deal was," he says.

"It’s awkward. Nobody likes to do it, particularly in those family scenarios, but if you plan for the worst, it will make things much easier down the road."

An additional benefit of having the agreement documented is that it can provide a resolution for problems that might not have been foreseen, says Miller.

"Having something written allows the parties to go back to that as a framework to deal with issues that come up that they didn’t think about in the beginning," Miller says.

As vehicles become more sophisticated and require less human interaction, self-driving autos could change how impaired driving statutes apply, Toronto civil and commercial litigator Jonathan Miller tells AdvocateDaily.com.

But as long as self-propelled vehicles have a steering wheel and gas and brake pedals, drivers will continue to have care and control over them, says Miller, an associate with the Toronto office of Shibley Righton LLP.

He comments about the future of automobiles and drunk-driving charges after a man in a self-driving Tesla was accused of being impaired at the time of a July 28, 2017, incident on the Bay Bridge linking Oakland and San Jose, Calif., according to The Mercury News.

California Highway Patrol reported the man blew twice the legal limit for blood-alcohol and was charged with driving under the influence.

The Criminal Code of Canada states in s. 253 that it's an offence to be impaired by alcohol or drugs while in control of a vehicle "whether it is in motion or not."

Miller wonders if that section would still apply once manufacturers remove the steering wheel, pedals and manual controls. That type of vehicle is fast approaching as GM has announced its plans to mass-produce one next year.

It remains to be seen how drunk-driving will be defined in the future with self-propelled vehicles with little or no input from a person, he says.

"It's certainly one of the things we're going to have to take into consideration as this technology develops,” says Miller. “It raises questions now that we have to be prepared for down the road."

Because existing self-driving vehicles still require human interaction and control — which makes them semi-automated — current traffic and impaired driving laws apply, he says.

"I question how long that might hold up as technology advances," Miller says. "I wonder if it’s going to get to a point where a person gets in and starts the vehicle and gives it a destination, but aside from that, none of its movement is related to input from any passengers."

He says it may solve a problem in the future, where someone who has been drinking could program their auto-piloted vehicle to move on its own to a specific destination.

Some countries, including Australia, are studying technological advances as they prepare to make legislative changes. Australia's National Transport Commission recently issued a report calling for new driving laws that would allow impaired people to operate those high-level self-driving vehicles that are still under development, but would not apply to the currently available semi-automated models.

At the moment, impaired driving legislation applies to drivers of all automated modes of transportation "because there is too much user input involved," Miller says. "There's still a steering wheel there because if something happens, the auto-pilot disengages and then the user is expected to control the vehicle."

But, he says laws for impaired driving may change drastically once the technology develops to where the vehicle has no controls, such as a steering wheel.

"Then you don't have that input from the user, it's almost like an automated taxi service at that point," Miller says. "It's no different than getting into a taxi and saying, 'I want to go here.'"

He notes that a vehicle without manual controls would also give vital mobility to a physically challenged person.

"I think we're getting into that sci-fi world where maybe 30 years from now we've got no steering wheel in vehicles on the road anymore — they're all automated. But until that time, impaired driving laws are very much an issue," Miller says.

He also wonders if impaired driving charges would apply if a person is sitting in a passenger seat rather than the driver's seat of a semi-automated model.

"I don't know if the technology is at that level to make it a possibility yet, but certainly I would think at some point somebody is going to raise that as a defence to an impaired-driving charge," Miller says.

TORONTO — Ontario's antiquated court system will inch toward the modern age, as the attorney general announced Wi-Fi for courthouses, jury summons via email or text and some online divorce filings.

The system remains largely a paper-based one, which has not thus far reacted quickly to adopt new — or even not-so-new — technologies, Attorney General Yasir Naqvi said Wednesday.

“Our system is still very much a bricks and mortar system,'' he said. “The most advancement we've seen is we've moved from typewriters to desktops or paper filings to faxes. That's where we're starting.''

The measures announced Wednesday won't see Ontario's courts catch up with how technology is used in every other realm of life, but they are foundational, practical steps, Naqvi said.

“I'm not claiming that Wi-Fi in all our courts by 2019 is getting us in the modern age,'' he said.

The measures being announced include more digital options for the jury process by the fall of 2019. A public consultation is underway, exploring possibilities such as completing jury questionnaires online, and receiving jury summonses by email or text.

Starting in April, couples going through a joint divorce will be able to file applications online, which the government says will make the process easier for people during a stressful time.

The province has also recently set up an online service for people to update their child support agreements, helping them avoid trips to the courthouse and money on legal fees.

Access to justice is a particularly important issue in family law, where more than half of people are not represented by a lawyer, Naqvi said.

“That is challenging,'' he said. “It creates barriers and obstacles for them and it also slows down the system because they may not have all the right information available to them to access the system. We feel very strongly that technology can help in that better access.''

Ontario will also be developing what it calls a “state-of-the-art'' digital service for a pilot project in the spring that would give the judge, lawyers and parties in a case access to all of the documents in one place online.

“So instead of each party bringing their own boxes of the exact same information to court for a hearing, everyone will have a single, secure, quick point of access for all court documents,'' the government plan says. “It will enable people to edit and interact with documents, and store them for future use, reducing the need for millions of paper documents and unnecessary trips to the courthouse.''

In an interview with AdvocateDaily.com, Toronto civil and commercial litigator Jonathan Miller says he’s encouraged to see the government taking modernization seriously.

“The progress that is most interesting to me is the development of the ‘state-of-the-art’ digital service,” says Miller, an associate with the Toronto office of Shibley Righton LLP.

“I'm curious to see what it will look like and what impact it will have on eliminating or reducing paper filings. For example, will everything move toward electronic filing rather than just pleadings?”

Miller says there will likely be bumps in the road as the government rolls out the plan, “but in theory, it sounds promising.”

While it’s important to “move beyond the era of the antiquated fax machine,” he says the government’s proposed modernization must be accompanied by changes to the rules.

“For example, documents can be served by fax without consent, but — with some exceptions — documents cannot be served by email unless the party consents to it,” he explains.

“The proposed changes should make filing and accessing court documents easier,” says Miller, “but without equivalent changes to the rules, the efficacy of the proposed system may be limited.”

He says internet access in the courtroom is also long overdue.

“Having participated in an electronic trial, the lack of internet access was apparent. When a witness testified via Skype, internet access was routed through counsel's cellphone. The witness's examination was brief, so this was feasible, but for a longer examination, using a cellphone to gain internet access is not viable. Similarly, cellphone-based internet access may not be possible in more remote locations or in older courthouses where reception is lost,” says Miller.

“Overall, the changes appear positive,” he says. “The system will not be modernized overnight but the government has the right idea: slow and steady.”

It's not the first time the Liberal government will have attempted such projects. Its large-scale Court Information Management System project failed in 2013 to get off the ground after four years of work. The province lost $4.5 million when it decided to scrap the system that was supposed to enable online court services, including scheduling, and consolidate the ministry's three case tracking systems.

A step-by-step approach has a better chance of success, Naqvi said.

“By doing it this way we're actually getting it done as opposed to just talking about it or trying to develop this massive system which may or may not work,'' he said.

To move the civil courts into the digital age, Ontario allowed small claims to be filed online in 2015, then it launched a pilot project at six courthouses to allow all civil claims to be filed online. Just days ago, that expanded provincewide and starting in May, people will be able to file other documents in civil cases, such as statements of defence, online.

Other parts of the plan include having inmates appear by video at more pre-trial appearances to save transportation costs and time, building an online dispute resolution platform for landlord and tenant conflicts, and a previously announced step to allow the resolution of traffic tickets online.

Parents transferring property to their children to avoid probate fees on their estate should make their objectives crystal clear to minimize problems down the road, says Toronto civil and commercial litigator Jonathan Miller.

“When you’re giving your instructions to your lawyer, be very clear about what you want to do and why,” says Miller, an associate with the Toronto office of Shibley Righton LLP.

Parents often give property to a child to hold in trust so it won’t be subject to estate administration taxes after they die, Miller tells AdvocateDaily.com.

In Ontario, these taxes, also called probate fees, amount to $5 for each $1,000, or part thereof, on the first $50,000 of the value of the estate, and $15 for each $1,000 or part thereof for anything above $50,000, according to the provincial government.

Often, a parent will put the property in both their name and the child’s, creating a joint tenancy. That means when the parent dies, the child can register an application for survivorship to become sole owner, Miller says.

But unless otherwise stated, the presumption in law is that the property was not transferred for the sole benefit of the child, but is held in what is known as a “resulting trust” for the estate, to be distributed according to the parent’s will after his or her death, he adds.

“Mom says, ‘Look, I don’t want you to have to pay a bunch of tax from my estate on this property. I’m going to transfer it to you, Son. But, Son, at the end of the day, that’s still my property. I want to be able to give it away in my will,’” Miller offers as an example.

But without proof of the parent’s intention, disputes can arise after death, he says. Legal battles could significantly reduce the value of the estate, which will likely pay for most of the court costs, he says.

The Supreme Court of Canada in this 2007 case, set out the parameters for determining whether the transfer of property was for the sole benefit of the child or meant to be part of the estate.

The court noted that although there is a presumption that the adult child is holding the property for the estate in a resulting trust, quite often the parent’s intention was to give it to the child, Miller notes. The court held that the main question in resolving any disputes is the parent’s intention at the time of the transfer, he adds.

“A great amount of litigation can still arise around, ‘Well, what did Mom actually intend?’” Miller says.

The first place to look for her intentions is in the lawyer’s file, he says. “Quite often, the lawyer’s file is one of the easiest ways because they’re telling their lawyer, presumably free of influence from anybody else, this is what I wanted and this is why,” he says.

Without such clear evidence, each family member can have a different story about what the parent intended, he adds.

“One says, ‘Mom told me we were all going to get the property.’ The other one says, ‘No, Mom told me she wanted me to have the property and so that’s why she gave it to me.’”

Similar disputes can occur between spouses, friends and anyone else expecting something from the will, he says.

Fortunately, steps can be taken to minimize such problems, Miller says:

Lawyers should ask questions and take good notes of their clients’ wishes beyond the simple desire to avoid probate fees, he says. For instance, lawyers could ask: “You’re making a will and transferring property at the same time. What’s your intention for the property? Are you meaning for your son to get it? Do you want it to be split between your kids under your will?”

Children, for their part, should encourage their parents to make their wishes known, but must avoid exerting what could be seen as undue influence, he says. “You can’t say, ‘Mom, I need you to sign this and say you intended to give me the property.’”

The best approach for an adult child is to say something like: “Look, Mom if you want to give someone the property, when you’re talking to your lawyer make sure you tell him or her why you want to do this and what you want to do.”

And testators need to communicate their intentions, not only to their lawyer but to their loved ones, despite the difficulties, he says.

“It’s uncomfortable and they don’t want to cause a stir. But the reality is, quite often, if you don’t talk to them up front, it’s just going to create problems down the road.”

Toronto civil and commercial litigator Jonathan Miller is optimistic that a new pilot program for e-filing civil claims is merely the beginning of online efficiencies for lawyers in Ontario.

The test phase was launched in five communities and once the kinks are worked out, “I really think the sky is the limit,” says Miller, an associate with the Toronto office of Shibley Righton LLP.

The pilot project allows for the online filing of the following documents with the Superior Court of Justice: statements of claim; notices of action; affidavits of litigation guardians for plaintiffs under disability; request for bilingual proceedings; and consent to file documents in French.

The first phase of the pilot, estimated to last up to six months, was launched in Brampton, Ottawa, London, Newmarket and Sudbury, with the rest of the province expected to join later in the year.

Miller tells AdvocateDaily.com that it makes sense not to include Toronto in the first phase.

“With the sheer volume of claims in Toronto, it would have been akin to throwing the project into the deep end. The test communities are big enough that the e-filing system will get a good trial run without overwhelming it,” he says.

“I’m excited to see where it goes and I’m happy to see they haven’t bitten off more than they could chew. They’ll tweak the system so that we can start filing defences and other pleadings. Step by step, we will have a more e-friendly system than we do now.”

Miller says Ontario currently lags behind some other provinces when it comes to using technology to streamline legal processes.

Under the standard “paper system,” lawyers must send someone to court with all of the printouts. They often have to take a number and stand in line for their turn with a court official, who stamps and dates the claim.

Miller says the online version is quite “user-friendly.” The program takes you through a series of yes/no questions and drop-down menus and allows you to upload a PDF file. You pay by credit card and can then print out a “stamped” copy of the claim — all without leaving the office.

“It's much easier than having to send someone to court,” says Miller. “I think it also avoids clogging up the counters at court and frees them up to deal with issues that require face-to-face interaction.”

Although he’s eager for the government to expand its use of online filing beyond initiating claims, Miller says “they’ve got the right idea by rolling out the process in increments to see what works and what doesn’t.”

“I’d like to see it get to a point where the hard copy is the anomaly as opposed to what we have right now where the hard copy is the norm and the digital version is the exception,” he says.

The Ministry of the Attorney General has said a province-wide rollout of phase one will happen later this year. The second phase of the program will enable the e-filing of additional document types.

Employees who sue their employers for wrongful dismissal have an obligation to look for a new job, says Toronto civil and commercial litigator Jonathan Miller.

“If you accept the severance that’s offered by the company, you are essentially accepting the terms of the termination,” explains Miller, an associate with the Toronto office of Shibley Righton LLP.

“But when a worker thinks he’s entitled to more than what’s offered, a lawsuit tends to follow,” he tells AdvocateDaily.com.

“In such a case, the employee has to prove he’s been looking for work or the courts may reduce the amount of damages awarded.”

An employee’s obligation to mitigate means they need to make reasonable efforts, but they’re not required to accept the first available job offer or take a lesser position, Miller says.

“The courts are not going to say you have to take any job just to reduce damages. You have to be able to prove that you made a reasonable effort to find something comparable, in position and compensation.”

Miller says it’s important to understand the purpose of severance. When an employee has been terminated without cause, he is entitled to reasonable notice of dismissal – which is intended to allow him time to find a new job – or pay in lieu of notice.

So if an employee is offered money instead of notice and he decides to sue for more rather than accept it, he has a duty to mitigate, which means he has a legal obligation to look for new employment.

Any income earned in a new job is deducted from what the former employer owes the employee in damages that may be awarded by the courts.

“Clients often come in with wide eyes thinking they’re going to get a full year's pay,” says Miller, “but severance depends on a variety of factors."

If, for example, an employee sues for 12 months of severance and finds a lower paying job after two months, he would end up getting two months at full salary and 10 months of the difference between the two salaries if they are successful at trial.

"So a $350,000 severance package may start to look more like $50,000 or $60,000," says Miller.

The courts could also expect workers to explore other ways to mitigate losses.

“People should also consider applying for EI or, if there are allegations that the termination was for a disability, they should consider applying for short-term or long-term disability benefits," says Miller.

Mutually beneficial relationships help the legal system work smoothly so lawyers should be patient and candid with upset clients, says Toronto civil and commercial litigator Jonathan Miller.

He says many people have little or no experience with the complex legal system and their point of reference could be based on inaccurate legal television shows that give them unrealistic expectations.

While research has debunked much of the so-called CSI effect — the way exaggerated crime dramas bias jurors — studies suggest they can still influence the public, says Miller, an associate with the Toronto office of Shibley Righton LLP.

"Some people seem to think we can do anything and everything without ever writing a document — or that trials start within a week or two of a first court appearance. It’s not how it’s portrayed on TV, but I think that impacts people’s expectations of their lawyer,” he says.

Best practices in the legal profession come from a wide field with every law society and bar association offering guidelines for management and practice, but a strong thread that runs through it all is the basic idea of building and maintaining relationships, Miller says.

"Most lawyers are aware of it, but it’s never bad to have a reminder that clients may come in and be angry or have other negative emotions," he says. "It's important to remember that you want to maintain that client relationship."

Miller tells AdvocateDaily.com that lawyers are expected to be candid, which sometimes means providing clients with information they don't want to hear.

"But there are certain ways legal counsel can present it so they’re not creating animosity. They should be fostering a relationship of trust because the client has the expectation that they can have faith in their lawyer,” he says.

Miller recalls a situation where a client suggested he wasn't working in her best interests.

"I took my time, wrote a fairly lengthy email that acknowledged the client’s frustration and advised what was being done and why it was taking longer than the client would have liked.

"She was frustrated with the process and that was being directed at me, properly or not, so it’s important to understand where the client is coming from,” he says.

When emotions run high the focus shouldn’t be difficult clients, but rather on people dealing with challenging circumstances, Miller explains.

"They sometimes just don’t know where to direct it," he says.

Miller suggests a lawyer address the concerns, real or imagined, but in a calm manner because knee-jerk reactions could lead to regret.

"It’s important to not respond in anger so you can provide a cogent response such as, 'This isn’t what you want to hear, but this is what I need to tell you,'" he says.

Things worked out with the distraught client, but Miller says they could have gone south quickly had he reacted without thinking.

"Having said that, I think it’s also important to not let clients walk all over you," he says. "At some point, you may need to take a stand and say, 'If you think I’m doing this improperly, maybe you would be better off with another advocate.'

"Certainly a lawyer is entitled to protect himself, but just be careful and respectful about how it's done," Miller says.

At the heart of the case was proving a lost will and the importance of maintaining a good record or making sure that a lawyer who keeps an original knows where to find it, says Miller, an associate with Shibley Righton LLP.

It may be decades before anyone needs to access the document, and by then people have moved, lawyers may have moved and things could get lost in the shuffle, he explains.

"If the testator keeps the original, ideally it would be kept in a safety deposit box or similar location and someone should know it’s there so when the person dies, it’s easily found,” Miller says.

"The testator should keep the will," Miller says. "Ideally it would be kept in a safety deposit box and someone should know it’s there so when the person dies, it’s easily found.”

He says some people don't like to keep a will at home, worried that someone may see it and become upset.

"Different circumstances will really dictate who hangs onto the original and whether or not someone is going to have a copy and so in my particular case, having a copy is really what made things easier for us," Miller says.

"I suggest a safety deposit box or that a trusted advisor, friend or family member holds onto a copy," he says.

However, Miller points out, there's always a chance of litigation based on what's promised in life versus what's written in the will.

"The reality is quite often people tell their family members one thing about how they’re going to divide the estate and then tell their lawyer something different," he says. "It can create a lot of animosity if someone has access to a copy of the will and others don’t, or if the will is inconsistent to what’s being told to family members.”

Lawyers need to start thinking beyond traditional models of service delivery to explore how technology can help them provide a more streamlined and cost-effective service to clients, says Toronto civil and commercial litigator Jonathan Miller.

Software and other advanced technology can help free lawyers from the drudge work of their jobs and allow them to be more strategic, he tells AdvocateDaily.com.

Moving toward a more digital practice makes good financial sense for firms and their clients who will benefit from a more efficient practice, says Miller, an associate with the Toronto office of Shibley Righton LLP.

“Wherever possible, lawyers should be embracing new technology, especially given the push by some to do away with the billable hour and provide a per-service fee,” he says. “And all of this relates to reducing costs to clients.”

Miller says one of his practice areas — construction law — tends to be “document-heavy,” and it’s not unusual for him to work on a file that involves multiple three-inch binders full of documents. While he doesn’t anticipate paper being eliminated any time soon, he says even small changes can have a big impact on productivity.

“If I’m in a client meeting, I can take notes on my tablet, send those notes to myself as an email and I never have to worry about losing a piece of paper,” he explains.

Miller says he frequently makes use of online portals that allow access to ebooks and other publications specific to his practice area.

“I have the Rules of Civil Procedure on my tablet. The electronic service also has other publications such as Commercial Arbitration in Canada: A Guide to Domestic and International Arbitrations, Construction, Builders' and Mechanics' Liens in Canada, and Annotated Canada Business Corporations Act — so that makes life a lot easier because it’s faster to search for something electronically. There’s a huge upside in knowing if you have your tablet, you don’t have to carry around a bunch of books,” he says.

While the legal industry isn’t known as an early adopter of new technology, Miller says that reticence comes from legitimate concerns around regulatory compliance and client confidentiality. At his own firm, he sees positive change, and it’s coming from the top.

“One of the partners at the firm uses an iPad Pro, which he takes to client meetings, and has even used it in a motion to flip back and forth between the various documents being referenced,” he says.

But Miller suggests it’s not feasible to ask lawyers and law firms to digitize their practices if they can’t extend its use into a courtroom for a motion or a trial or file documents electronically.

“It’s certainly something that both sides of the bench — the administration and the practice side — need to consider,” Miller insists.

At the recent Legal Geek conference in the U.K., the head of strategy at a leading London practice said lawyers are trained to be risk averse, but they need to shift their mindsets if they expect to compete going forward, reports Legal Futures.

Nick West, chief strategy officer at Mishcon de Reya in London, said lawyers have been educated to believe the law is an “artisanal industry” where the only tool of the craft is their brain, the online news outlet went on to say.

The biggest upside Miller says he sees with a digital practice is the freedom of mobility, allowing lawyers to work effectively regardless of whether they’re in the office or not.

“If I have a half an hour between client meetings or while on recess in court, I can get some work done on my tablet and be productive,” he notes.

Toronto civil and commercial litigator Jonathan Miller says acting as agent in commercial and estate list matters has been an excellent way to get more courtroom exposure as well as build a small book of business.

“I've been contacted by colleagues asking if I can attend on agency matters on their behalf,” says Miller, an associate with the Toronto office of Shibley Righton LLP. “A matter is either being adjourned or there needs to be someone in court representing their client in Toronto but it's not necessarily worth the firm sending someone from Windsor, Waterloo or Kingston to handle it.”

He tells AdvocateDaily.com when it comes to commercial and estate list matters, it’s common that early morning appointments are scheduled to deal with procedural aspects of litigation. When requesting an adjournment, for example, travelling from Kingston to Toronto to spend five minutes before a judge may not be the best use of a lawyer’s time.

For Miller, making sure the conflict check is clear and that he’s up to speed on a matter is key before acting as agent.

"The first thing I do is I ask for the names of the parties involved to run a conflict check. If it comes back clear, I’ll ask for a copy of any relevant documents, typically the application and/or responding records so I can see if there’s a potential business conflict and to familiarize myself with the issues.”

He says when showing up as an agent for the lawyers representing their clients, it’s crucial to be as prepared as possible to deal with any questions the judge might have.

“A judge is not going to simply accept, ‘Well, I'm just the agent, I don't know anything.’ They're going to expect that you at least know something about why you're there and what’s going on.”

Miller says as a 2014 call to the bar, acting as agent gives him more opportunities to get into court.

“It's never a bad thing to get before a judge and be able to speak with them,” he says. “Quite often there's not a whole lot that has to be said but at the same time it gets you more familiar with the system.”

Acting as agent is also a great way for a young lawyer to generate some business for the firm.

“It's harder for a young associate to bring clients to the firm but this is one way to start contributing to the firm and building a book of business,” Miller says. “You never know where that's going to lead down the road.”

Money talk is one of the last great taboos, but when it comes to clients, young lawyers need to just get over it, says Toronto civil litigator Jonathan Miller.

The high cost of litigation means lawyers tend not to have much good news for clients when it comes to billing, but he says constant communication can help soften the blow.

“It's really important to have the conversation about what you're going to charge up front,” says Miller, an associate in the Toronto office of Shibley Righton LLP.

“Once you've had the initial conversation, it's good to keep going back and touching base, especially if things are going differently than you anticipated. That way everyone is on the same page,” he adds.

Legal costs are a particularly pertinent issue for clients with matters in Small Claims Court, a forum where many young litigators cut their teeth. The rules of the court only allow successful representatives to recover a maximum of 15 per cent of the amount at issue.

“Even if the claim is $25,000 — the maximum allowed in small claims — the most you can get for legal fees is $3,750. When you're paying a lawyer by the hour, you can burn through that pretty quickly. Often, you can find the fees will exceed the amount being fought over,” Miller tells AdvocateDaily.com. “Just because the amounts at issue are smaller, doesn't mean the legal issues are any less complicated than a case in Superior Court; there are still legal tests to be met.”

Miller says even using the simplified rules of the Superior Court of Ontario, which has jurisdiction for monetary amounts in dispute up to $100,000, clients can find legal fees eating significantly into, or completely consuming, their potential final award if they have to go to trial.

He says changing the rules of the Small Claims Court to allow for recovery of a higher proportion of legal costs or increasing the monetary limit of the court would help the situation, but until then, he says lawyers can take steps to keep clients onside and costs down.

“It can be a challenge to your ability to serve clients, while still leaving something in their pocket at the end of the day,” Miller says.

Liberal use of articling students is one way to contain costs, he says, although the effect can be limited. “Even if you have students doing the work from start to finish, with some supervision from a lawyer, the fees are still going to be pretty extensive if it goes as far as a trial.”

Miller says he likes to break the litigation process up into phases, and give clients estimates of the cost of each one.

“I try to give clients a heads-up: this is what I'd expect it to cost to go to a particular point in the proceeding, whether it's the initial negotiations, or demand letters back and forth, or to the end of pleadings,” he says.

At the end of each phase, Miller tries to speak with his clients about the progress so far, as well as the outlook for future stages of the action.

“As long as you tell them upfront what sort of expenses they are likely to face, it really puts the ball in your client's court as to how they want to handle it,” he says. “I've had a client who decided to continue the action on their own, not because they were unhappy with our service, but because it was going to cost them more than they wanted to spend to continue.”

On occasion, Miller offers clients a fixed fee for particular stages of litigation, but warns that can be a risky proposition.

“If clients want a fixed fee, I will consider it, but you have to make sure the amount you charge will be representative of the amount of work you could be getting yourself into,” he says. “For junior counsel, it can be a good way to encourage a client to hire you and show them what you can do, which will hopefully help generate more business down the road.”

In spite of the challenges associated with the growing popularity of e-trials, lawyers need to be comfortable with this technological development, or risk falling behind, Toronto civil litigator Jonathan Miller writes in Lawyers Weekly.

As Miller, an associate at Shibley Righton LLP, says in the article, in Bank of Montreal v. Faibish [2014] O.J. No. 1639, Justice David Brown promoted the need for lawyers to adapt to advancements in technology to provide services to their clients, comparing it to the change from vinyl records to digital music formats.

The crowning virtue of e-trials is mobility, explains Miller. "Consider this: in 1159465 Alberta Ltd. v. Adwood Manufacturing Ltd.[2010] ABQB 133, the parties replaced 18 three-inch binders with a single DVD. The parties and the judge were no longer tethered to a room full of boxes to work on the file or write the judgment. In particular, Justice Adam Germain, in his commentary on the trial, noted the significant benefit: ‘I did not have to lug boxes of exhibit copies around — the relevant information was all in the memory of the laptop.'"

Another reason to promote the use of e-trials, he explains, is their role in reducing trial time, given the search capabilities of a document index.

At the same time, Miller writes, e-trials still present several challenges, including operational knowledge of the equipment and the software being used to manage the documents.

“An ever-increasing list of document management software exists. Some will run directly on counsel’s laptop (e.g. Summation or Primafact), others store the documents on a server and each party is granted access to the documents online (e.g. Ipro Eclipse). In either case, counsel may be faced with using software with which they are not proficient,” he writes.

Especially for smaller firms or those unfamiliar with document management software, Miller suggests using hyperlinks in a Microsoft Word or similar index.

Also, he explains, counsel will require two sets of documents, and likely, two laptops to display them: a “clean” set to display for the court and an “annotated” set for the examining lawyer.

“Preparing a second set of documents is not difficult. However, displaying the documents really requires a ‘driver’ while counsel conducts their examination of the witness. Counsel cannot simultaneously call up their annotated document, display the document for the court and prepare their next question. The need for a driver is of concern when it comes to costs, particularly for cost sensitive clients,” writes Miller.

Other challenges, he explains, include the limitations imposed on the trial judge and the witness to navigate documents, as well as possible issues related to the technology in the courtroom.

“If using an online document database, the courtroom will need Internet access. Tethering from a cell phone can be an option where limited Internet access is required: in fact we were able to examine a witness in Vancouver via Skype by tethering to a cell phone. However, cell phones do not provide a viable solution where cell phone coverage is limited or ongoing access is required (e.g. when using an online document database),” writes Miller.

Although these challenges will eventually be alleviated by software improvements and users becoming more technologically savvy, Miller adds: “until technology advances to a point that eases these challenges, lawyers will have to find ways to adapt to remain current in providing their legal services.”