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Confusing Pairs, Part 5
More in this series.
The first is a noun, most commonly used to mean ‘a person who depends on another for support or position’ (He is a single man with no dependants). Dependent is the adjectival form of the noun (Each dependent child will receive a payment …) Dependent also means, more generally, ‘contingent on or owing its existence to something else’ (Your success as an articling student is dependent on many factors, some of which may not be apparent to you).
In the US, dependant is almost never seen; Americans use dependent for both noun and adjective.
A guaranty is ‘the action or an act of securing, warranting, or guaranteeing’. It also means ‘security’ or ‘warranty’, and, more particularly in law, ‘a written undertaking made by a person … to be answerable for the payment of a debt or the performance of an obligation by another person’.
A guarantee is similar, but slightly different: ‘a person or party that makes a guaranty or gives a security; a guaranteeing party’; ‘something given or existing as security, e.g. for fulfilment of an engagement or conditions’; and ‘a person to whom a guaranty is given’.
Clearly there is some overlap, and you’ll never go wrong if you use guarantee for all senses. Guaranty is preferable where you mean ‘rather the act or fact of giving security than the security given or its giver’ (Fowler) – so, ‘a contract of guaranty‘.
Guaranty used to be the verb form; this is now always guarantee.
These used to be used more or less interchangeably, but have parted company.
Historical now means ‘belonging to, constituting, or of the nature of history; in accordance with history; treating of, based on, or depicting events from history; based on an analysis of development over a period of time’. For example, Your memo doesn’t need to provide a historical account of the law of unjust enrichment since Moses v Macferlan (1760); just give me an overview of the current state of Canadian law.’
Historic is now confined to the sense of ‘memorable’ or ‘worthy of a place in history’: On that historic day, the Dominion of Canada came into being.
One often sees an before these two adjectives (‘an historic occasion’), but this is unnecessary. The general rule is that you use an only before a word beginning with a silent H (so it is an honour, but a house). In front of historic, an is a hold-over from the days when an was usual before any word with an unaccented syllable beginning with H.
The first is a gland that men have (Prostate cancer can be treated effectively if detected early).
The second means ‘to throw oneself to the ground in reverence or submission’, ‘to knock down’, ‘to overcome, to reduce to helplessness’, ‘to reduce to extreme physical weakness or exhaustion’. As in That combination of intense heat and humidity will prostrate those who attempt overly vigorous physical activity.
Prostrate is occasionally used for the gland, but this is ‘non-standard’ (which is to say, wrong).
Wares (usually used only in the plural) are articles of merchandise or manufacture: Local hippies displayed their hideous wares in the market on the music festival grounds. Ware in the singular is less common, except where a descriptive word is tacked on: earthenware, glassware, hardware, silverware, software, tableware.
Wear, as a noun, can mean ‘what one wears or should wear’, as in men’s wear (often now compressed to menswear, not entirely properly). Outerwear and underwear are well-established, but there are less attractive coinages: beachwear, eyewear (can we not just say (eye)glasses or specs?), innerwear (used for underwear, but illogically; you don’t wear this stuff inside you, you wear it under other garments), knitwear (how about woollens?), nightwear, sleepwear, swimwear (OK, your humble scribe can’t think of better one-word terms for the last three, but they’re still icky).
Next time: number
Use Canva for Easy, Eye-Catching (And Free) Infographics
You stare at a Word document full of dense text, nary a headline or bulleted list in sight. You aimlessly play with font sizes and faces and tables and margins, knowing you aren’t really making any progress. Not even clip art can save it. You’re doomed: the document is utterly, completely boring.
We’ve all been there, faced with this seemingly impossible task: to somehow transform pages of text into something people will actually read. (Or better yet, something people will actually WANT to read!)
The next time you find yourself in this unenviable position, I encourage you to check out a free, nifty online tool called Canva.
I discovered this tool while trying to turn the Slaw Reader Survey results (which began as a snooze-inducing “wall of text” of raw data) into something engaging and eye-catching that folks would be excited to read.
Here’s one of the infographics I created to show where Slaw readers live:
- tons of templates and backgrounds that you can customize with your own material (for this particular project, I used some templates almost “as is”, and started other infographics from scratch)
- a vast assortment of icons, images, typefaces, etc.
- a simple interface with helpful built-in rulers and guidelines
- good interactive tutorials to show you the ropes of the service
You can also use Canva for social media graphics, posts, presentation slides, and really any other graphic-based creation you can think of. I encourage you to try it out – not only will you come up with something aesthetically pleasing and useful, I bet you’ll have fun while you’re at it.
“Chunking” the Daunting Task
Ahead of me laid a mountain of a mediation memo. On one side a complex liability scenario had to be made easily digestible. Expert and lay witnesses provided converging and diverging testimony, and I had to explain why I happened to have the best interpretation. Hundreds of pages of reports lay in store, needing analysis with a fine-tooth comb and a magician’s touch to transform it all to less than a dozen pages. On the other side the damages story awaited. Millions of dollars claimed, another set of reports and analysis. Where to start, how to start, should I even start? It’s a good thing there was a deadline.
My mind wandered, staring into the abyss (self-starter? Who, me?), as I pondered the daunting task. Many moons ago I tutored wee little ones in math. They struggled mightily with algebra, confused by the letters that represented numbers (2x+5=15? Huh?). So we approached a problem by breaking into into chunks. We discovered even more basic problems with addition, subtraction, and counting. We began with the simplest chunks, counting with our fingers as we performed basic arithmetic. And slowly worked our way through, chunk by chunk, until the problem was solved. Thus the complex task was conquered, reconstructed into a sequence of simple chunks.
I approached the memo the same way. I broke it down into sections. Liability and damages to start. Then liability into five more sections, damages into three. I booked dates and times to do each section. I proceeded with the first section, then the next, then the next, and before I knew it I was done.
So if you’re stuck on a big task, “chunk” it. Break it down into smaller parts and approach each little part one at a time.
Noting Up US Case Law in Canada
It is straightforward to find out out how a Canadian case has been subsequently treated by Canadian courts; all you need to do is note it up on Quicklaw, WestlawNext Canada, or CanLII. However sometimes you need to find out if a US case has been mentioned in the Canadian case law and this is slightly more challenging to do.
The easiest way to note up a US case in the Canadian case law is by a Boolean search for the names of the parties and any citations for that case. For example, if you were trying to find out what Canadian cases had referred to Hiscott v. General Electric Co. (1975), 521 F. 2d 632, you might use the search string (Hiscott /4 General) OR “521 F. 2d 632”.
Depending on how common the names of the parties are, you may have to make the names used in your Boolean search more specific.
Some Contractual Terms
I generally stay away from drafting issues, but thought I’d mix things up a bit.
Depositary and depository
Depositary in US contracts has always seemed wrong to me. Shouldn’t it be depository?
No, in fact. The two words, while ‘often confounded’ (as the Oxford English Dictionary Online puts it), mean different things.
A depositary is ‘a person [natural or otherwise] with whom anything is lodged in trust; a trustee; one to whom anything (material or immaterial) is committed or confided; …a bailee of personal property, to be kept by him for the bailor without recompense.’
A depository, on the other hand, is ‘a place or receptacle in which things are deposited or placed for safe keeping; a storehouse, a repository’.
So a depositary must be a person (including an artificial one at law) who holds onto things for you, while a depository must be a place or thing where or in which you put things.
I take some comfort, however, from the knowledge that depository used to be used of people too (but not since about 1878).
Indemnitor and indemnitee
Please, no. These are recent American coinages, and not attractive ones. Just say indemnifier and indemnified (or indemnified party).
There is no need for the faux neo-Latin and the clunky –ee back-formation.
It could be worse, however: the Oxford lists indemnificator – but says it’s ‘rare’ (only one example of usage, from 1827).
Whereas and witnesseth
I agree with Ross Guberman (Deal Struck: The World’s Best Drafting Tips (2014)) that these terms in contractual recitals are ‘substantively harmless’, but unless you’re drafting on parchment with a goose-quill, don’t use ’em.
Next week: confusing pairs, part 5
New Mandatory Minimum Sentencing Online Resource
MMS Watch provides a list of every mandatory minimum sentence in force in the Criminal Code and the Controlled Drugs and Sentencing Act. Additional explanation appears on the website:
MMS.watch is an ongoing project by rangefindr.ca to monitor the constitutionality of each mandatory minimum sentence (MMS) in the Canadian Criminal Code and Controlled Drugs and Substances Act. All data are from the rangefindr.ca database. MMS.watch is free and will remain free.
We encourage you to check out MMS Watch! You can learn more from Matthew Oleynik’s guest post on Slaw.ca.
[This tip by Alan Kilpatrick originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
Does Your Law Firm Need a New Website?
Web design is a fast-moving field. Do these changes make you wonder if it’s time to update your law firm’s website? The decision itself can be daunting. Does it need to be an overhaul? Or should we just tweak? How much is enough? Will it even make a difference?
Why not take a scientific approach and deconstruct your site to better assess its current state?
Here are a few questions to get you started:
- Branding – From words to pictures, does the website integrate your professional identity, appropriately and creatively? Or, put another way, does it make you proud?
- Audience – Will those who are a fit know that the site is speaking to them? Will those who aren’t know that it isn’t?
- Writing style – Is the voice an honest representation of your people, culture and attitude?
- Contact information – Is it easy to find on every page?
- Call to action – Is it clear and compelling why the reader should contact you? Are there more than one calls to action competing for attention?
- Navigation – Will visitors know where they are, no matter where they land on your site?
- Function – Does the site present properly on mobile? Does it download quickly on desktop? Is it secure?
- Search Engine Optimization (SEO) – Is the site findable? Have any people or branding objectives been sacrificed in making it so?
As you try to assess the scale and timing of any updates to your website, consider its greater value. How important is your website to practice development? Recruiting? Media coverage? As an online hub, generally?
If you have some clarity about the role your website plays in helping to meet firm objectives, you’ll be better able to assess the value of the cost and time involved in this update. That’s when you can stop wondering and start moving along with some decisions.
For more reading on website design, see these past articles on SlawTips:
- Mobilegeddon: Is Your Law Firm Website Ready to Pass Google’s New Mobile-Friendliness Test?
- 11 Tips on Building a Law Firm Website
- Is Your Website in Need of a Makeover?
Also, see the following articles by Sandra Bekhor at Toronto Marketing Blog:
- Great law firm web design – A roadmap (41 examples!)
- Marketing Strategies for Law Firms: The Ultimate Q&A
- Law firm logo design – An exhaustive illustration (42 leading examples critiqued)
Law Reviews, Journals, and Newsletters on CanLII
Over the past few months, CanLII has been rapidly growing its collection of secondary sources, which now includes law reviews, journals, and newsletters. For more information on what’s available, see the Law Society of Saskatchewan’s recent posts:
Hat tip to the Legal Sourcery Blog for keeping tabs on these developments!
AndreaCan’s No.1 Tip to Get a Grip
Begin your journey towards intentional organization™ with the first thing Master Virtual Assistant AndreaCan counsels her clients:
The first thing I teach to stressed out lawyers is to write things down. Not on post its or various yellow pads – in the same spot. Get a notebook, I recommend and use a Moleskin … cuz if it was good enough for Hemingway – seriously, because it is small enough to be portable yet large enough to be useful.
Every morning, I open to a new page, date it and use that page to capture any of the things I need to write down that day – things to do, notes from calls, numbers, names, etc. All that goes on the right hand side of the new page. On the left hand side is where I leave space for what I term more free flowing thoughts – the navigational trees, bubble maps and brain dumps.
At the end of the day, I take a few minutes to transfer anything that needs to go digital and I put a check mark through each item as I do. Now I can instantly see what is also digital but I’m careful not to obscure the information on the page <- you’d be surprised how many times you’ll use the book vs. searching digitally for information!
On the off chance I lose my notebook – I make a digital record by taking snapshots of each page and loading them to Evernote. That said, I have yet to lose one. In fact, I go through them all towards the end of each year – partly for fun and partly to help me work through the next year’s focus re: marketing, events and promotions.
To learn more about Andrea’s ways to calm the crazy, enter your email at the bottom of:
Oh, With the Verbing!
Professor Frink says this on The Simpsons, but don’t you do it.
In simple terms, a verb is an action word. Sometimes there doesn’t seem to be a good verb available to express a particular action, so it may make sense to adapt a noun or some other word.
This is often fine, but often not. Herewith, some of the pitfalls.
Noun as verb
In The Sweet Smell of Success, the 1957 film noir classic, Burt Lancaster’s character holds up an unlit cigarette and says ‘Match me, Sidney!’ in a particularly venomous speech directed at Tony Curtis.
An effective and memorable phrase – but other examples of verbs made from nouns are less happy inventions.
We can do without all of the noun-verbs on the list that follows. Some may save you a word or two, but they add nothing useful and they are weaker than what they seek to replace.
action [how about act, take action, implement or just plain do?]
friend, unfriend [technical terms from Facebook, but confine them to that platform; in real life, befriend or make friends with people and then drop them]
impact [affect is preferable, but presumably people shy away from it because they get it confused with the verb to effect]
leverage [there is actually the perfectly good verb lever, generally confined to actually working with some kind of tool; we are now stuck with leveraged buy-outs, but try to avoid this verb-form otherwise]
medal [in the Olympic sense; please say win a medal]
message and text [OK, these are kind of useful, but I still don’t love them; I prefer to send a message]
plain-language [oh, the irony of using a piece of jargon to describe taking the jargon out!]
reference [awful! it’s refer to or mention]
repurpose [wouldn’t adapt or convert do?]
task [how about the more vivid charge, as in She was charged with compiling the closing books for the transaction – or you could just say she was asked to do this]
trend [in its modern sense of ‘becoming a trend; popular’, anyway; well-established to express ‘turn in a certain direction, bend; have a general tendency’]
trial [hideous marketing-speak]
Admittedly, verbs-from-nouns can have their uses: position is convenient shorthand for the unwieldy ‘to identify or establish (a product, service, or business) as belonging to a particular market sector, esp. for the purposes of promotion in relation to competitors; to promote (a product, service, or business) strategically or distinctively, esp. as fulfilling or exceeding the requirements of a targeted market sector’ (Oxford English Dictionary Online).
Just use such formations sparingly and thoughtfully.
For more on this subject, see this article: http://www.bbc.com/culture/story/20160825-why-medalling-and-summering-are-so-annoying.
Please don’t ever liaise with anyone. The noun is liaison, but it comes from the French verb lier (‘to link or connect’), not liaiser. Why don’t you just connect with, co-ordinate with or talk to someone, instead of trotting out this hybrid English-French mess?
Even worse is to incent someone. No! You might be OK to incentivise, but you’re better off to create incentives, motivate or encourage – anything but incenting, please.
The dreaded –ise/–ize
Another way to make a verb is to add –ise (–ize, if you prefer) to another word. As H.W. Fowler saith, ‘Within reason, it is a useful and unexceptionable device, but it is now being employed with a freedom beyond reason.’
No one would object to apologise, jeopardise or pasteurise; but the same cannot be said for incentivise, moisturise, pressurise (although this is usual in the UK), productise, randomise, slenderise, tenderise and volumise.
Next: some contractual terms