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Wednesday, July 6th, 2016 technology  research  practice

A Research Tip

  • Research & Writing

I think you’ll agree that ‘said’ (as in ‘the said party’ when you’ve previously referred to that party) is a little fusty-sounding, and has no place in your jazzy client-focused blog post or article.

And even in contractual drafting, it sounds more than a little antiquated. Said is an unnecessary archaism: be done with it.

More persistent is ‘same’. To use an example from a few weeks back (emphasis added):

A recent case from the ONSC clarifies the law on whether municipalities can regulate boathouses and whether the Building Code Act applies to same, finding that (i) municipalities have jurisdiction to zone Ontario lakes and apply zoning by-laws to lakes, regulating construction of boathouses and other structures; and (ii) the Building Code Act applies to such structures, where not otherwise prohibited by the by-laws and the Public Lands Act.

Do we actually talk this way? Of course not. You would just say something like ‘whether municipalities can regulate boathouses and whether the Building Code Act applies to them’.

Ross Guberman (legal writing maven) has this to say about ‘same’ in this context: ‘archaic and awkward – a parody of legalese’. The Oxford English Dictionary agrees, suggesting that the word is ‘often merely the equivalent of a personal pronoun; he, she, it, they’.

‘Such’ is another one in this category, also used in the boathouse example, where it’s used in the same way as ‘said’. Wouldn’t a normal (that is, non-lawyer) person simply say ‘these structures’ or ‘structures like this’?

Formulations like ‘we never received such’ are, in Bryan Garner’s words, ‘barbarous-sounding’. Thus to be avoided.

And then there is the dreaded phrase, ‘as such’. Dreaded (by me, anyway) because it’s so often misused as mere filler, rather than as a link to antecedent material. Correctly used, it means ‘in the capacity just specified’.

Here is a nice little explanation from Judith Fischer, Word Aficionado (great job title) at the Louis D. Brandeis School of Law in Louisville, Kentucky:

The phrase as such is sometimes misused as an all-purpose (but grammatically incorrect) transitional phrase. Such is a pronoun that must have an identifiable antecedent. If it doesn’t have one, its use is incorrect.

Example 1 (correct):

She is the board president. As such, she is responsible for scheduling the meetings.

Explanation: Here, the antecedent of such is president. It can replace such: She is the board president. As president, she is responsible for scheduling the meetings.

Example 2 (incorrect):

Congress intended to provide an exhaustive list of examples, and it did not mention websites. As such, the statute does not cover websites.

Explanation: Such has no antecedent here; it cannot be replaced with list or any other word in the first sentence. The writer of example 2 incorrectly used as such as a generic transitional phrase. The word therefore would be a better choice.

The following examples illustrate the above points.

Example 3

A plaintiff must prove damages in order to recover, but Smith has not done so here. As such, she has no claim.

Example 4

This is a question of law. As such, it is subject to de novo review.

Explanation: Example 3 is incorrect, because such has no antecedent. Replace as such with therefore. But in Example 4, question of law can replace such, so the sentence is grammatically correct.

Advice: If you are in doubt about whether as such is correct, you may want to choose other phrasing. The transitional terms therefore, thus, and as a result are often suitable replacements for an incorrect as such.

All three – said, same and such – are useless lawyerisms, even when correctly deployed. Avoid them (even when you can use them properly).

Up next: split infinitives; or, Star Trek, you have a lot to answer for

Neil Guthrie (@guthrieneil)

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