Breaking News: How to Learn New or Emerging Law in a Pinch

  • September 28, 2021
  • Mark Asfar

Many lawyers in the profession have recently had to take a crash course in employment and human rights law as clients across the province and Canada scramble to understand and develop workplace vaccination policies for the latest stage of the COVID-19 pandemic. This is the most recent in a long line of critical emerging moments in law, including (from the personal experiences of the author) the invention and proliferation of cryptocurrencies, and the legalization and commercialization of cannabis across Canada. Of course, there have been many other industry and practice-specific developments, emerging with new legislation or with the release of critical court decisions.

However these developments present in law, they can represent a few different things for young lawyers. Firstly, they can represent another potential nerve-wracking moment in your day when a client asks for your urgent opinion on an unfamiliar topic or area of law. They can represent another research topic on a long and never-ending list of to-dos and items to look into. But they can also represent an opportunity for young lawyers to explore new and underdeveloped areas of law or practice with abundant client need and potentially few established experts. A great example of this was the legalization of cannabis in 2019, which generated new challenges and opportunities for lawyers across numerous practice areas: real estate lawyers who were asked to advise landlords on cannabis restrictions; employment lawyers asked to advise employers and employees on cannabis in the workplace; criminal lawyers asked to review drug possession charges and appeals; and of course the many business and regulatory lawyers asked to apply their skills to an unprecedented national regulatory and business framework rollout.

Of course, these opportunities exist because of the corresponding challenge, and it can be difficult to learn about an emerging legal area, or even a pre-existing complex area of law, in the traditional way. This is because there is often very little court-established legal precedent or other forms of legal opinion. There can even be contradictory information, or non-legal uncertainties such as political or economic factors which are actively developing. Where an established legal issue could be researched by reviewing a critical case, looking up an article written by experienced counsel, or tracking down a well-assembled text on the topic, emerging areas of law can be years away from the creation of these resources.

However, many of the lawyers who have embraced emerging legal situations have likely learned a happy lesson – it is absolutely possible to learn about new or emerging areas of law and get the answers your clients need, as long as you know how to go about it. Here are some tips for doing so:

  1. Read the Legislation, Line by Line: The best place to start when learning a new area of law is with the written statutes and regulations. Even where legal precedents or opinions are available (though again, this is rare for emerging topics) the applicable legislation is the foundation of an emerging legal issue and always warrants a proper line by line review. There are often countless details and exceptions in the written body of a law that do not come up every day and which are overlooked by legal articles and opinions, but which can be crucially relevant when addressing a particular client or matter. Further, reading the full text of the law is very helpful for developing familiarity with its function, key terms, and even an understanding of its intended spirit and potential lens of interpretation. The legislation is the starting point for the matters that it governs, and too often legal professionals study the case precedents and theories before reading the underlying fundamental text.  

For example: During the COVID-19 pandemic governments have released COVID-related support programs, employment regulations, and restrictions. Every time a government has announced a new item the media has scrambled to publish summary articles on the latest developments and, while these are helpful references, they have often overlooked or missed key details. Lawyers who advise clients on these issues have taken to reading the full text of the applicable orders and regulations to properly identify their nuances or exceptions and to better advise their clients.

  1. Talk Through the Law with a Colleague: When established legal argument or opinion does not exist on an emerging legal topic the next best thing is to create your own. When new legal issues emerge the lawyers that engage with them actively develop understandings and opinions of the various nuances and issues as they work through them. Just like many lawyers found in their law school days, discussing the angles of a legal topic with a peer is an often productive way to work through the possible arguments or scenarios of a legal issue and develop a better understanding. Informed colleagues that talk through emerging legal topics are able to test their theories or discover new ideas that they would not have independently identified. It is also helpful that if a novel issue is challenging one lawyer, it is likely also challenging their colleagues who are just as eager to identify a potential solution. The higher courts bring together panels of judges to inspect challenging legal issues with the benefit of different experiences, perspectives, and values, and the same principle can be applied by young lawyers navigating new law.

For example: When the Federal Government introduced the legislative framework to legalize and permit the sale of cannabis products many business lawyers worked together to talk through subjective legal issues like cannabis marketing and branding strategies. For example, one regulation required that cannabis companies could not market their products in a manner that evoked “a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.” This led to countless conversations among lawyers about what kind of images and words did or did not run afoul of this regulation, and many lawyers continue to confer with each other as this legal issue evolves. 

  1. Follow the Trendsetters: Building on point #2, there is usually a community of legal professionals facing the same questions and uncertainties when new law or legal issues appear. Some of the lawyers facing these issues will only deal with them as a small part of their practice, but some others will make it a central focus of their work or even strive to put in the time and effort to establish themselves as experts on the topic for clients and colleagues alike. The lawyers who fully embrace and seek to master emerging legal topics are to be lauded for their determination and effort. They also often deserve our thanks, as many of these subject matter experts are willing to share their hard-won lessons in the form of publicly available legal articles that can be invaluable to the rest of us. For young lawyers looking to stay up to date on the latest trends and insights on an emerging legal issue, following the trendsetters on the issue is a great way to stay informed. Where it is not clear who to follow, legal magazines, publications, and even a general legal article aggregator can provide a good starting point for tracking new content and brilliant individuals who deserve to be followed closely.

As a tip, set your web browser home page to the OBA articles web page, a publication like Law Now, or an article aggregator like Lexology – that way any time you open a new web browser you can take a quick peek at the newest articles and developments. Alternatively, and if you do not mind having to manage the corresponding extra emails, subscribe to newsletters from all the same sources as well as law firms to get breaking news and analysis sent straight to your inbox.

For example: Throughout the COVID-19 pandemic the HR and legal departments of many employers have subscribed to the mailing lists of employment and labour law firms in order to receive timely emails about newly announced provincial regulations and developing analysis on workplace policies. This information has been invaluable to HR and in house legal teams, and the law firms that have been able consistently provide prompt and insightful emails to their clients have no doubt assured their loyalty and follow-on work.

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.