advice you can use — short and to the point — every Tuesday, Wednesday & Thursday

technology  practice  research

All Our Tips

  • Research & Writing

Slanted type like this, with a number of distinct uses.

Used in these posts to set off a word or phrase that is being discussed. Quotation marks would serve that purpose just as well, although things might look a bit cluttered and fussy.

More commonly, italics are used for emphasis. Go easy with emphasis of any kind: if everything is emphasised, the force is diminished.

In the old days of manual typewriters with only roman (non-italic) typeface, underlining stood in for italics. Underlining can still be used, especially where you’re quoting something that already contains italics but want to add your own editorial emphasis (indicate that in square brackets with something like underlining mine or underlining added).

Italics are also used to indicate foreign expressions. In these, the law abounds: ultra vires, sine die, cy-près, autrefois acquit, to mention but a few.

Two observations, though. First, you’re better off not (or perhaps that should be not) using dead languages at all if there is a good English equivalent. Secondly, after a certain point, foreign words and phrases become fully part of English and lose their italics. We don’t write etc.; it’s now naturalised and needs no italics.

In literary writing, there is a new movement to drop the italics for any ‘foreign’ word or expression, on the grounds that differentiating typefaces creates ‘a monolinguistic culture of othering’ that presupposes the primacy of English and fails to reflect the experience of bilingual and multilingual people: https://quartzy.qz.com/1310228/bilingual-authors-are-challenging-the-practice-of-italicizing-non-english-words/. That has yet to hit the law, however.

A final legal use of italics is in styles of cause, aka case names. Traditionally, these were rendered like this: Hadley v. Baxendale. The v for versus is NOT in italics because when you italicise something containing an element that already has italics, you convert that element to roman type. Because switching back and forth between typefaces was a bit of a pain, we now italicise everything and also drop the period after the v (both to the horror of traditionalists). By the bye, the traditional way to refer in speech to a case is Hadley AND Baxendale, not Hadley VEE Baxendale or even Hadley VERSUS Baxendale.

Neil Guthrie (@guthrieneil)

 

  • Research & Writing

The Internet Archive Wayback Machine allows users to “capture a web page as it appears now for use as a trusted citation in the future”. I’ve mentioned it before since it can be a very useful tool to find information on a webpage that has subsequently changed or been removed.

You are not restricted to using it to access materials that other people have archived. If, in the course of your research, you identify a useful web page, you may want to consider checking if the page has already been archived by the Wayback Machine and—if it is not already there—adding the page. Adding a page is very easy: simply enter the URL into the form and click on “save page now”.

Once you’ve done this, you can use the URL generated by the Internet Archive (rather than the URL for the material you just archived) and you won’t have to worry about link rot.

Note that one drawback is that you can’t save a web page to the Internet Archive if the page is on a site that doesn’t allow crawlers.

Susannah Tredwell

 

  • Research & Writing

End result
No, just the result.

 Freak accident
As opposed to the deliberate or expected kind?

Directly on point
A case is on point or it isn’t, and you wouldn’t ever say that one was indirectly on point.

Sidebar: in England, it is usual to say that a legal authority is in point, not on point. North Americans do say a case in point, but typically (I think) in non-legal usage.

Exactly the same, one and the same
Just the same.

Oftentimes
I heard this in a meeting recently, but the OED says it’s ‘archaic or literary’. And redundant: often alone will do.

Refer back
No, just refer (and never reference (as a verb)).

The re- prefix means back.

Twelve noon, twelve midnight
In both, the twelve (or 12) is unnecessary.

Neil Guthrie (@guthrieneil)

 

  • Technology

While smart phones are an increasingly big part of most lawyers’ practices, many lawyers only use their phones for email, text and calls. But there’s so much more you can do! This is the first post in a series on my favourite apps.

I am continually collecting receipts and Genius Scan is a great app for scanning them on the go. Using the camera on your phone, you can scan a single document or a series of documents. Then crop the scanned image or make other edits, including changing the page order. Finally, save the scanned document(s) as a PDF, and send it via email or print it.

Genius Scan’s security is probably not sufficient for scanning client documents. However, if you upgrade to Genius Scan+, there are options to encrypt PDF documents, as well as to create optical character recognition (OCR) or searchable PDFs.

In any event, if you have a use case like mine, where you need to create and edit PDFs of non-sensitive material, you may find Genius Scan to be very helpful.

Lesha Van Der Bij (@LVanDerBij) is CEO & Founder of Optimize Legal – keeping law firms and businesses up-to-date on changes to the law.

 

  • Research & Writing

To a layperson, trite means ‘hackneyed’, ‘worn-out from over-use’, ‘lacking freshness’ – as in Greetings cards are filled with trite expressions of cloying sentiment.

To a lawyer (or a law student after about 4 weeks into 1L), trite law means any legal principle that is ‘obvious or common knowledge’ (in the words of that unassailable authority, the Wiktionary).

The expression trite law has an ancient pedigree. Its origins go back to T Pasch’s case (1478) YB 17 E4 Pasch fo 2 pl 2, where Brian CJ says that ‘it is trite law that the thought of man is not triable, for even the devil does not know what the thought of man is’ (cited in R Haigh, ‘“It’s Trite and Ancient Law”: The High Court and the Use of the Obvious’, (2000) 28 Fed L Rev 87 at 87 – although Haigh translates the original law French).

In Canada, judges seem to be fond of this particular old chestnut: a search of CanLII yielded nearly 7,000 hits; in the Canadian subscription databases, the figure is closer to 10,000. The phrase is less popular with US judges: not quite 400 hits in the US version of Westlaw.

What does this suggest? Obviously, that the phrase trite law is itself trite, hackneyed, devoid of freshness, lacking in novelty (although less so in the USA). A good reason, then, to stop using it.

Another reason to drop trite law is that it is, in Richard Wydick’s phrase, one of those expressions that lawyers (and wannabe lawyers) use to give their writing ‘a legal smell’, but which mean little to a non-lawyer – and may, more dangerously, ‘give a false sense of precision and sometimes obscure a dangerous gap in analysis’ (Plain English for Lawyers, 5th ed (2005), at 58.

Don’t tell your client something is trite law; tell her that it is well-established that … Your advice will be more meaningful.

And less trite.

Neil Guthrie (@guthrieneil)

 

  • Technology

Cloud.

You’ve heard the term, perhaps wondered what it really meant and maybe even worried about it. ‘The cloud’ is just a marketing term that means the internet. So, if you see the term ‘cloud storage’, it means ‘store your documents on the internet’.

There are many benefits to using the cloud properly. If you pick the right providers, it will be easier to keep, manage and restore backups. You can also seriously expand your office – if you’re careful, you can have access to all your most important files anywhere you have an internet connection. And perhaps most helpful, some services will even handle security updates and patches for you.

Benefits aside, there are some important pitfalls to be aware of before you make any kind of cloud investment. Ultimately, transitioning to something cloud based involves getting many small details right. And, it is helpful to learn about best practices from people who have been through these types of business transitions before.

The Law Society of British Columbia developed guidelines for best practices in using the cloud back in 2012. The Prairie Law Societies adapted these guidelines into a checklist to help members use the cloud securely. The Law Society of Saskatchewan’s Cloud Computing Guide contains some important information, helpful best practices and a comprehensive checklist that will help you steer clear of the most common pitfalls.

[This tip by Greg Hluska originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]

 

  • Research & Writing

Riders of the subway in Toronto will be familiar with announcements along these lines: Due to signal problems at Eglinton station, you can expect longer than normal travel times.

You know all too well what this means, but it isn’t quite grammatical.

Due to, usually but not always following some form of the verb to be, properly means attributable to. It needs to be attached to a noun, rather than the vaguer concept of expecting (in the subway example). Due to is frequently misused as a substitute for because of or as a result of.

So, your longer-than-expected subway experience is due to signal problems; but because of signal problems, you are spending more time on the subway than you were expecting.

Admittedly, the shade in meaning between attributable to and because of may be slight, and no real confusion will result from a misuse that most people won’t even notice.

As noted previously, expunge due to the fact that and replace it with because.

Neil Guthrie (@guthrieneil)

 

  • Technology

A few years ago, I stopped using paper notes when giving presentations. Instead, I began using my iPad for speaking notes. It seemed easier (and less distracting) to scroll through a single page than flipping through paper notes.

While any note-taking app could serve this purpose, I noticed that the Pages app includes a Presenter Mode option. (This app is automatically included on all Apple devices. So, these instructions would also work with an iPhone.) Once in the Pages app, you can find the Presenter Mode by clicking on the ellipsis in the top-right corner. Presenter Mode turns your speaking notes into an easy-to-read teleprompter.

And, you don’t have to type your notes in the Pages app in order to use it. You can draft your notes in Microsoft Word, airdrop or email them to your iPad/iPhone and open the notes in Pages. It is all pretty simple and makes for easy reading.

Lesha Van Der Bij (@LVanDerBij) is CEO & Founder of Optimize Legal – keeping law firms and businesses up-to-date on changes to the law.

 

  • Practice

When drafting documents, the voluminous typeface options at our disposal may sometimes leave us overwhelmed and relying on the safety of default options, such as Calibri in the case of Microsoft’s Office Suite, or Arial for Google’s suite of cloud-based applications. But venturing beyond the confines of the defaults can not only help your documents appear less rote, but can also increase the effectiveness of the underlying text.

A 2013 experiment conducted by the New York Times found that the choice of typeface has a measurable impact on the persuasiveness of the underlying text. The experimented tested six fonts—including Helvetica, Georgia, Baskerville, and Comic Sans—and asked readers to rate the believability of a series of statements, each written in a different typeface. Unsurprisingly, the much-maligned Comic Sans was found to be the least persuasive. But it was the text written in Baskerville that was most persuasive to readers. A similar experiment conducted in 2016 also found Baskerville to be the most “trustworthy” typeface.

Of course, when drafting documents for a particular institution, your choice of typeface may be restricted. The Ontario Court of Appeal, for example, “encourages” the use of Arial or Times New Roman for all text in factums. The British Columbia Court of Appeal is even more stringent in its requirements, mandating the use of 12-point Arial for all submissions—a constraint sure to disappoint Matthew Butterick, author of Typography for Lawyers, who once declared “you cannot create good typography with Arial”.

For its part, the Supreme Court of Canada requires the use of Times New Roman or a “comparable font”. Judicial interpretation may be required to clarify whether the sans-serif Arial is “comparable” to the seriffed Times New Roman.

And if you’re still not convinced, try converting this Tip into Baskerville and reading it again.

Shawn Erker (@ShawnErker) is Legal Writer & Content Manager at LAWPRO.

 

  • Research & Writing

Terminology associated with things like race, ethnic origin or disability, that is. An area fraught with peril these days, not least because the terminology changes – and sometimes rapidly. Forgive me if I put a foot wrong!

Indian is not a term one should use, except in relation to people from India (and I’m guessing people from the West Indies may prefer Caribbean). Having said that, Indian is (for now) a term of art in the Indian Act (‘a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian’, s 2(1)). Indigenous now seems to be the acceptable term, although it’s not strictly accurate if the ancestors of our First Nations came originally from Asia across the Bering land bridge; something that is indigenous to a particular location has always been there (the French autochtone, used in relation to this continent’s First Peoples, is to the same effect). Aboriginal seems to have passed out of favour in Canada (but Australians still refer to Aborigines), as has Native to some extent. Eskimo, a derogatory term, is now universally Inuit, in Canada at least.

For people whose ancestors came from (sub-Saharan) Africa, Black is still used (Black Lives Matter), as are African-American and African-Canadian – although the latter two would probably not be used to describe people from the top part of the continent, like Berbers or Egyptians. Terminology with ugly historical associations is to be avoided, although there are some hold-overs (the National Association for the Advancement of Colored People has not changed its name, and I think one can still talk about Negro spirituals).

People of colour is a useful (if imprecise) description for non-Caucasians (who aren’t actually colourless). Caucasian is a bizarre term to begin with, based on a since-exploded eighteenth-century theory that the ‘white races’ (and some others) originated in the Caucasus region between the Black Sea and the Caspian.

I still haven’t managed to get my aged parents to substitute Asian for Oriental; they don’t seem to get that there is no centre of the world in relation to which people are eastern or western. (The Middle East, by the bye, used to refer to the region roughly from Mesopotamia to Burma, when London saw itself as centric; as the axis of global power shifted westwards to Washington, the Middle East did too.)

Scotch used to be usual description for someone or something from Scotland, at least to a Sassenach (English person); it’s better now to say Scottish or Scots (the latter, particularly, in reference to the country’s distinct legal system). Vestigial uses of Scotch: Scotch bonnet, Scotch broth, Scotch egg, Scotch mist, Scotch whisky (which I would just call whisky, all other types needing an identifier like Irish or rye).

People with disabilities understandably prefer that term to disabled people, in order to place the emphasis on the person not the disability.

Capitalise terms denoting race? Sometimes it’s useful (White privilege is more pointed than white privilege), but it’s not always necessary (Why aren’t there more brown partners at your firm?).

When in doubt, the best policy is to ask someone’s terminological preference in these matters.

Neil Guthrie (@guthrieneil)