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

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All Our Tips

  • Research & Writing

The origins of this phrase are a little obscure, but appear to be from the exhortation of sports coaches or more senior people in the army for the players/troops to look up from whatever is distracting them from the game/drill/war. (Their mobile devices, perhaps?)

Be on the alert or on the qui vive, in other words. There may also originally have been an element of buck up! to it.

Fair enough. But at some point people in business and government started talking about giving their underlings a heads-up [note the hyphen for the noun] – to the point now where it has become one of the most tiresome clichés.

I cringe whenever some passive-aggressive person says, Just wanted to give you the heads-up …

The expression also causes spelling issues for people: either they omit the hyphen in forming the noun (a no-no) or they insert apostrophes in strange places.

To avoid orthographical anxiety – and to keep me from cringeing – please stop using this expression.

And on the subject of cringeing, it’s better to spell that with an e so the soft g is clearly preserved; otherwise, you might be tempted to pronounce it to rhyme with singing (compare singeing). Same goes for bingeing on Netflix.

Neil Guthrie (@guthrieneil)

 

  • Technology

I recently read about a great tool that helps you to simplify your writing. The Hemingway App highlights:

  • sentences that are difficult to read – yellow sentences are hard to read, while red are “egregious”;
  • use of the passive voice; and
  • phrases that have simpler alternatives (e.g., with respect to).

It also provides a grade level-based readability rating of your prose.

I tried out Hemingway by entering a legal summary that I had written for a non-legal audience. A sea of yellow and red! And a readability rating of “Post-Graduate”. Gasp!

After adding bullets and making some fairly minor revisions, I was able to resolve most of the issues. The new readability rating – Grade 8 – seemed pretty reasonable for a legal summary.

Hat tip to the Civil Resolution Tribunal (@CivResTribunal) for bringing this tool to my attention. They are aiming for a Grade 6 reading level – the average level in Canada – even for their tribunal decisions. This is a significant step toward improving accessibility of the law.

Check out the free online version of the Hemingway App.

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

Research shows that lawyers are at a higher risk of depression, anxiety and substance abuse than average. And according to Ontario lawyer-turned-social worker Doron Gold, “If there’s stigma in society generally, the stigma is tenfold in the legal profession.”

Today’s practice tip is a reminder that every province and territory has a lawyer assistance program that exists to help members of the legal profession and those that care about them. Services and programs vary, but most have confidential helplines, counselling, peer support programs, and many more offerings to benefit lawyers, judges, law students, their immediate families and colleagues.

The Judges Counselling Program is another Canadian organization that provides support to judges, justices of the peace, masters, prothonotaries, and their spouses and eligible children.

 

  • Research & Writing

At work we are frequently asked how to cite a source using the McGill Guide. While most questions are fairly easy (“how do I cite Delgamuukw?”) the McGill Guide doesn’t always have an answer, e.g. “how do I cite an unreported tribunal decision?” or “how do I cite a type of government document [that isn’t listed in McGill]?” 

It can be helpful to search CanLII (or other case law database) to see if the source we are trying to find a citation for has been already been referred to. If it has, we can just copy the citation (or copy and tweak the citation).  We do keep in mind that it is more important that the person reading the citation be able to find the material we’re referring to than the citation be in perfect McGill format.

Note that a number of courts specify a citation format that differs from the McGill Guide. They include:

Susannah Tredwell

 

  • Research & Writing

Alternate/alternative

As a verb, alternate means ‘to succeed in alternation’ (The two speakers alternated in answering questions form the audience); as a noun, ‘a substitute (I can’t attend the conference, but we’re allowed to send an alternate); as an adjective, ‘occurring by turns’ (The cake consists of alternate layers of cake, whipped cream and fruit filling)

Alternative involves a choice between two options: An alternative choice to cake is fresh fruit.

Forceful/forcible

Forceful means ‘powerful, effective’; forcible is ‘using force or violence’.

The lawyer made a forceful plea for clemency on behalf of the accused; The complainant alleges that her treatment by the mall’s security guards amounted to forcible confinement.

 Militate/mitigate

The first is to ‘lend support, have force’; the second, to ‘alleviate, make less severe, moderate.

The totality of the circumstantial evidence militates in favour of a finding of guilt; The youth of the accused and her lack of a previous criminal record are mitigating factors that should be considered in sentencing her.

 Complex/complicated

These are interchangeable, both meaning (1) involved or intricate and (2) made up of different elements, compound.

We tend, I think, to say complex litigation but a complicated problem.

 Every one/everyone

Two words in the ‘each and every’ sense, one where you could substitute everybody.

I ate every one of the sandwiches BUT Everyone ate a sandwich.

In spite of/despite

Actually, no difference in meaning.

Despite (shortened from the earlier in despite of) perhaps sounds a little more old-fashioned?

Although or even though would also work.

Neil Guthrie (@guthrieneil)

 

  • Research & Writing

Judicious use of repetition can be a very effective rhetorical device, especially in written and oral advocacy. Judicious use, mind you.

Winston Churchill made memorable use of repetition: We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills.

Lawyerly writing, on the other hand, tends to repeat things because the writer doesn’t want to allow an iota of uncertainty by substituting a pronoun like it or that, or a synonym – or because the writer hasn’t taken the time to edit.

Ask yourself, for example, whether you really need to repeat a defined term ad nauseam. You may in contractual drafting, for the sake of certainty, but in a case comment or client update the context may make things clear without dull duplication. If you’re careful, it or that can work just fine.

If you read your piece aloud, you will be more likely to spot the kind of repetition that makes your prose leaden rather than lively.

Neil Guthrie (@guthrieneil)

 

  • Technology

I love planning trips almost as much as going on the trip itself. So, I am always on the lookout for cool travel apps.

Ulmon CityMaps2Go is now my key tool for planning (and executing) city trips. You can use different coloured markers to map out all of the tourist attractions, restaurants and shops that you want to visit. I find the visual grouping of sites makes it easy to plan a day. Or, in the midst of a trip, to determine where to go next.

Ulmon also enables you to share your great ideas with travel companions. Once I have mapped out an upcoming trip, I send it to my spouse (who unlike me does not share my love for trip organization). She then has a quick overview of our plans for the trip and can click on any of the
markers to learn more about a particular venue.

I should also note that all of the maps can be downloaded for offline use. So, no need to incur expensive cellular charges.

I recently visited London. Here’s a quick snapshot, including our home base marked in blue.

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

Technology has made life better in oh so many ways. Today, we can even make new connections with colleagues and clients, without leaving the comfort of our home or office.

But there’s been a price to pay.

We’ve become less inclined to get out there, in person. The truth is, it’s just so much easier not to. No traffic. No subway closures or delays. For lawyers, that translates into joining webinars instead of attending live conferences and other educational programs.

That’s a shame because there are so many good reasons to make the effort to show up in person. Here are just three!

  1. Your phone can’t replace the energy of a room. While, you may hear the same content, somehow you won’t have the same experience. Live is better. Every time. A live program will make a bigger impact and stay with you longer.   
  2. You never know who you will meet. Sometimes the most ordinary event can result in the most important of connections. You won’t know, if you don’t put yourself out there.
  3. Solutions to the issues you’re struggling with don’t happen in isolation. When you meet up with a group of peers, discussions about shared challenges and opportunities tend to happen organically.

So, the next time you receive an invitation or a newsletter or someone asks if you’d like to join them at a professional event, make the effort!  Better yet, be the someone asking others to join you.

For more reading related to networking for lawyers, see these past articles on SlawTips and Slaw:

Also, see the following related articles by Sandra Bekhor, Practice Development Consultant:

Sandra Bekhor, Toronto

 

  • Research & Writing

This doesn’t exactly count as legal research, but I periodically get asked for to confirm that a given person was the source of a quote. Most of the time, it’s fairly easy to track down, but in other cases, I end up using https://quoteinvestigator.com. It’s a wonderful resource for those situations where the quote you’ve been given might have been said by a number of different people and not in those precise words. Note that you will need to scroll down a little bit before you find the search box on the left hand side.

Susannah Tredwell

 

  • Practice

As an enlightened country with an enlightened legal system practised by (hopefully) enlightened legal professionals, we are accustomed to certain neutralities that make no preference for religious beliefs. One such neutrality is the legal equivalence between swearing and affirming an affidavit. Accordingly, the form affidavits provided by courts in every Canadian common law jurisdiction contain a jurat with the words “Sworn (or Affirmed) before me at . . .”, with the options of “swearing” or “affirming” both accounted for in the template language.

However, while an affiant may be free to choose between swearing and affirming, it may be good practice to ensure the jurat specifies which option was used. Leaving the form language unchanged (that is, containing both “sworn” and “affirmed”) may be frowned upon (or worse… technically improper).

This issue arose in British Columbia v. Adamson, where Chief Justice Hinkson of the BCSC suggested that affidavits containing the language “sworn (or affirmed)” within the jurat (that is, without specifying which was used) were “improper” and would have been rejected were they not being adduced in the context of an interim application (see para. 19). The Chief Justice may have been disappointed that counsel had apparently neglected to review the “Guide to Preparing Your Affidavit,” provided by the BCSC on its website, which stresses that a jurat should make clear whether it was sworn or affirmed: “You do one or the other, not both. Cross out or delete the one that does not apply to you.”

Some (though not all) Canadian jurisdictions and institutions provide express guidance that a jurat should specify whether the affidavit had been either sworn or affirmed. Saskatchewan’s Guidelines for the Use of Commissioners for Oaths, for example, states that a proper jurat should identify whether the affidavit was sworn or affirmed, and only contain one or the other (at p. 7). The Northwest Territories’ Information and Instructions for Commissioners for Oaths and New Brunswick’s Commissioner of Oaths Handbook give similar instructions.

While it is perhaps a questionable invasion of privacy to force affiants to specify whether their evidence was sworn or affirmed, consider removing any form language in an affidavit that refers to both “sworn/affirmed” options before it is signed. If it is known in advance whether the affiant will swear or affirm, consider whether the corresponding language should be used in the jurat. If the affiant’s preferences are unknown at the time the affidavit is drafted, consider crossing out the inapplicable language once the affiant makes their election and then initial the alteration.

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