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  • Research & Writing

Searches that look for all variations of a word can be helpful, but sometimes you need to search for a word or phrase exactly as spelled.

How you do this differs from database to database. In CanLII, use EXACT( ) around the word you are searching for, e.g. EXACT(AIDS). CanLII usually searches for variants of the word, but using EXACT will force it to search for exactly what you have specified.

Quicklaw and WestlawNext Canada both default to searching for both the singular and plural of a search term, rather than all the variants; this means you won’t get as many false hits as on CanLII. However, if you do want to search for an exact term, use singular ( ) or plural ( ) in Quicklaw (e.g. plural (AID) for AIDS) and use #term in WestlawNext (e.g. #AIDS). In Lexis Advance just use quotation marks (e.g. “AIDS”).

Susannah Tredwell

 

  • Practice

This is easier said than done. Don’t let anyone make you do what you know is wrong – whether out of trust, love, or pressure from a bully. If a client tells you to hide evidence or lie, don’t do it. If a supervising lawyer tells you to take a shortcut that only partially fulfills your duties, don’t do it. If opposing counsel treats you maliciously and you want to retaliate in kind, don’t do it. As a lawyer, you are often the last and only person who can say no when someone tells you to do something you know is wrong. That’s why you’re a lawyer, to stand up for justice. Stick to what you know is right.

Malpractice claims have occurred when a lawyer is lured or pressured into shortcuts. In one example, a paralegal established a trusting friendship and business relationship with a new lawyer, but the lawyer was too trusting. The paralegal provided the lawyer with real estate files, but insisted on doing the work including processing all the documentation. The lawyer breached both professional duties and obligations to Teranet by letting the paralegal effect registrations using the lawyer’s electronic land registration account and disk. The transactions were fraudulent and the lawyer was compelled to resign as a licencee.

There are numerous other examples in which you will be pressured – a client instructing you to withhold evidence; opposing counsel encouraging you to settle a file you haven’t investigated properly; and so on. Don’t succumb. Stick to what is right – your Atticus Finch moments are found around many corners.

The Law Society of Upper Canada’s Coach and Advisor Network can also set you up with a mentor to provide you with insight and support.

Ian Hu (@IanHuLawpro)

 

  • Research & Writing

With pronouns, that is.

A pronoun is a word that stands for a noun. Example: ‘The guy [noun] I was talking to is a third-year associate; he [pronoun] works in the corporate department’.

That and who
These pronouns have distinct uses: that refers to things and who to people.

So don’t write this: ‘Thanks to all that came to the event’. It’s ‘all who came to the event’ (unless they were robots).

An entity is an it
Not a they. Thus, ‘The bank was subject to a class action alleging that it had overcharged its customers for foreign-exchange transactions’.

They
You may have read that the ‘singular they’ is now a thing. It’s a thing, all right, but it’s sloppy and incorrect (unless you’re referring to a specific transperson who prefers to be called they; that’s cool).

They must otherwise always refer to two or more persons or things. Where there is only one, and the sex of the person is unknown, logic and grammar demand he or she – or else some gender-neutral but grammatically sound construction.

For example: ‘The company is seeking a new marketing director. Anyone interested in applying should submit his or her [OR JUST an] application by Friday and make himself or herself [OR JUST become, with no pronoun] familiar with the company and its competitors’.

Whose
This is what’s called a  relative pronoun, which tells us more about the noun it relates to (‘a lawyer whose time has come’) or asks a question about it (‘Whose book is this?’).

Ideally, whose should be used only in reference to a person, not a thing; of which is the logical construction for the inanimate. So, ‘the Securities Act, the purpose of which is to regulate …’ rather than ‘the Securities Act, whose purpose is to regulate …’

That can lead, however, to artificial and clumsy sentences: Fowler’s example in Modern English Usage is ‘The civilians managed to retain their practice in Courts the jurisdiction of which was not based on the Common Law’, which he says could usefully (and perfectly correctly) be changed to ‘whose jurisdiction’ (I’d also take the capitals off ‘Courts’ and ‘Common Law’, which are wholly unnecessary).

So if you haven’t always been using of which for the inanimate, you can relax a bit – but don’t get too casual.

Next: get to the point

Neil Guthrie (@guthrieneil)

 

  • Practice

According to Moneysense, earning the big bucks alone, doesn’t make you rich. Real Wealth is determined by” Net worth” what you own – minus what you owe.   (Moneysense, January 2015) .

A financial plan is designed to help you build your net worth and get more from the money you earn.  A financial plan address key areas of your financial life such as:

  1. How to make the most of your cashflow
  2. Identifying risks to you and your family’s cashflow
  3. Creating cashflow with passive investments when you are ready to stop working
  4. How to clawback your cashflow from taxes
  5. How to make the most of the cashflow you leave behind.

The question many people fail to ask themselves… I make a good income but am I really wealthy???

Take the all Canadian wealth Test:
http://www.moneysense.ca/save/financial-planning/the-all-canadian-wealth-test-2015/

Jackie Porter (@askjackieporter)

 

  • Research & Writing

Did you know that the Canadian Bar Association publishes toolkits in multiple practice areas? Today I want to tell you in particular about the Child Rights Toolkit that was launched just May 11 of this year.

This toolkit describes its four main parts as:

Fundamentals – provides the fundamental framework of child rights including where they come from, what they are, who is responsible and the status of child rights in Canada.

The System: Cross-Cutting Themes – outlines available systemic child rights supports and tools and in particular independent human rights institutions and child rights impact assessments.

The Child: Cross-Cutting Themes – highlights subjects that may be applicable to the child or a group of children you work with that transcend all areas of the law, such as Charter rights, best interests of the child, child participation, legal representation and freedom from all forms of violence.

Legal Areas – provides four steps to implement a child rights based approach in practice as well as child rights information and law in specific legal domains such as child protection, family law, youth criminal justice, and immigration.

Each of these opens up an in-depth commentary with labyrinth links to international conventions, federal and provincial legislation, major case law, policy documents, and articles.

Three years in the making, and developed by a long list of content experts, CBA staff, and steering committee members, this toolkit is well worth a good look for anyone involved in the rights of children in Canada or internationally.

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

 

  • Practice

New lawyers, I hope this tip will follow you well for your whole career. Begin doing this now and do it every time, to the point where it becomes a habit. It will both help your practice and protect you in the event of a malpractice claim. Document all client interactions, whether over the phone, or in a meeting – even the quick or “0.1” conversation. If you are a young lawyer or articling student who may never encounter a client in your first year, this advice applies to your encounters with senior lawyers who give you assignments. Treat them as your clients, as you are in effect providing them with your legal advice.

When you step into a meeting, take a notepad with you and take notes. This applies even to the meetings where you are told “this will take just a second.” You’ll be surprised how often a second can become fifteen minutes of intense legal analysis. Every time you pick up the phone to speak with a client, open a note in the file and record what was said. Pay particular attention to instructions given to you, and recommendations you give.

When you are asked, ten days, ten months, or ten years after the fact about what happened, you will be able to reference your notes and recall the conversation accurately. Did you miss following through on instructions? Did the client take your recommendations? Did you discuss the possible outcomes and risks of the steps involved? It’s all in your notes – so long as you keep them.

Ian Hu (@IanHuLawpro)

 

  • Research & Writing

This is intended mostly for the baby-boomers out there.

If you’re writing a client piece, it’s often tempting to jazz things up with a reference to sports, popular music, TV or movies.

This can be effective, both in conveying an image and in making the writer look human (which isn’t always easy in legal writing). There are some pitfalls, however.

Those born before 1965 may have to come to the shocking realisation that there is a now a generation for whom The Beatles are just some old band their grandparents bore on about.

Trying to look hip can also backfire, as the current mayor of Toronto found out when he lauded Kanye West as a ‘proud product of our music industry’. Whatever his other foibles, the late Rob Ford probably wouldn’t have made the same mistake.

I know the day will come when my Advanced Legal Research and Writing class fails to recognise The Smiths. This is inevitable but regrettable, not only because they helped to define my late adolescence, but also because the band’s squabble over money is a such a nice illustration of basic principles of partnership law (see Joyce v Morrissey, (1998) All ER 556 (CA), and a rather different account of the facts in Morrissey’s Autobiography (2013)).

Sports references can be vivid, but also problematic. American writers make the mistake of assuming that the entire world loves baseball as much as they do. (The term ‘World Series’ appears to originate not from the sport’s purported global reach but from early sponsorship by the New York World newspaper.)

By the same token, Canadians may want to avoid too many hockey references if they have potential readers in Australia or Hong Kong – or Canadian readers who grew up in cultures in which the dominant sports aren’t hockey and (North American) football, but cricket or (what the rest of the world calls) football. Many Americans will not have played games that involve the offside rule, so using offside to describe improper behaviour may give rise to blank looks. Female readers may (but may not) be put off by sports analogies of any kind.

And we’ve all met that tiresome guy (and it is usually a guy) who can repeat whole episodes of Monty Python, Seinfeld, The Simpsons … Remember that not all who read your client piece will have seen the particular episode you find hilarious (or if they have, have found it hilarious).

It’s best to stick to references that everyone will get. No easy thing.

Next edition: let’s get personal

Neil Guthrie (@guthrieneil)

 

  • Research & Writing

If you’re having difficulty finding the amendments made to an act by another act, make sure you’re consulting the original act rather than the consolidation. Consolidations generally omit amendments to other acts.

For example, the new British Columbia Societies Act made changes to a number of acts including the Business Corporations Act. If you wanted to see the text of those changes, you would need to look at the text of the Societies Act as it read initially rather than in its consolidated form.

Susannah Tredwell

 

  • Research & Writing

Bi
H.W. Fowler refers in Modern English Usage to the ‘misshapen brood’ of bi– words that are used to describe the frequency of intervals: biannual, bi-monthly, bi-weekly and the like.

The problem with them is that they are ambiguous: bi-weekly, for example, can mean either twice a week or every two weeks. At least a biennial (like the Biennale art exhibition held in Venice) is always held every two years, not twice in one.

Careful drafters of contracts will obviously want to make things perfectly clear, especially when dealing with dates of payment obligations and the like. And even non-contractual writers may wish to avoid uncertainty.

There are some options to avoid the ambiguity of bi–. Semi-monthly is clearer than bi-monthly, if you want to say that something is to occur twice in any given month. But both words are what Fowler calls ‘ugly hybrids’. Fortnightly  is an option, if you’re OK with sounding very British. Or you could just say twice monthly, every two weeks or every other week. Fowler’s proposal to adopt half-monthly doesn’t appear to have gained much traction, but you could try it – and you wouldn’t be misunderstood.

Centuries
If you’re old enough, you’ll remember Canada’s centennial in 1967 and the bicentennial of US independence in 1976. In the UK, these would have been centenary (pronounced cen-TEEN-er-ee) and bicentenary (bye-cen-TEEN-er-ee).

When Toronto celebrated the 150th anniversary of its incorporation back in 1984, someone dredged up sesquicentennial, a word that doesn’t appear to be used all that much. It did engender a twee squirrel mascot called Seskwee (although it wasn’t black in colour like the characteristic Toronto rodent).

The federal government, wisely, did not try to figure out the Latinate term for the 125th anniversary of Confederation when that occurred in 1992. (The unwieldy quasquicentennial has been suggested.) Instead, the feds opted for Canada 125, universally called Canada one two five (perhaps a deliberate echo of the colloquial term for a case of beer). Canada 125 made up in clarity what it lacked in imagination – and, predictably, we are approaching what is officially being called Canada 150.

But perhaps we still have the dodransbicentennial, dodrabicentennial or possibly dequabicentennial  of Confederation to look forward to in 2042 – with Dodra or Dequa the beaver as mascot?

Millennial
Once every thousand years. Also, now, used to refer to the much-maligned generation that came of age around the dawn of the new millennium – although millennial  is often used for anyone born somewhere between the early 1980s and the early 2000s.

Note: spell millennial and millennium with two Ls and two Ns. Millennia (and centuries) begin in years ending in 1 (2001, not 2000), by the bye; there was no year 0.

Next: keep your cultural references current and universal

Neil Guthrie (@guthrieneil)

 

  • Practice

As this fall marks another season of incoming new lawyers and articling students, this tip is for you. When you receive your first assignment from your articling principal or senior lawyer, you may be left wondering where you should start. Sometimes the answer is with the assigning lawyer’s assistant or law clerk. The assistant can provide you with similar precedents the assigning lawyer has already perfected. These precedents can provide you with valuable insights into the legal writing and work product you are expected to achieve.

Yes, you can tackle the work on your own without any guidance – but wouldn’t it be easier to follow the well-worn path? Many assignments do not require you to reinvent the wheel. A statement of claim is likely to set out the theory of liability and damages, which may closely mirror past cases. Pay attention to the wording used in precedents, as the phrases used may be taken directly from cases. The same goes for research memos, letters to clients, factums, etc. While Google and CanLII can be very helpful, don’t neglect the human resource available to you a few steps away.

Ian Hu (@IanHuLawpro)