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This is the grammatical term for the distinction between the singular and the plural.
Unsurprisingly, a singular noun takes a singular verb (takes being an example of that), while plural nouns take plural verbs (that was another example, in case you missed it).
Where there are two subjects in the sentence, the verb is generally plural (Diligence and enthusiasm are desirable in an articling student).
It’s easy to lose the plot, however, when the two components of a compound subject are separated by a lot of intervening material.
A case in point is a clause a lawyer recently asked me about. Which wording is correct?
- The division of this Agreement into articles and sections and the use of headings is for convenience of reference only and does not modify or affect the interpretation or construction of this Agreement or any of its provisions.
- The division of this Agreement into articles and sections and the use of headings are for convenience of reference only and do not modify or affect the interpretation or construction of this Agreement or any of its provisions.
It has to be version 2, because the subject of the sentence is The division … and the use – so the verbs should be are and do.
This is the general rule, but there are times when the two elements of a compound subject are inextricable, and therefore demand a singular verb: Scotch and soda is her favourite drink; gin and tonic is mine. Or where they could be said to constitute a single concept: Violence and killing is against moral law (the subject of the sentence being, in effect, violent killing: Fowler’s example from Modern English Usage).
On that rationale, the boilerplate provision about consideration could be the receipt and sufficiency of which is hereby acknowledged — but one also sees are hereby acknowledged.
Don’t stretch things too far with compound subjects, though.
And where it’s X or Y rather than X and Y, the verb will accord with the nearest element (in this case, Y): Either the company or its directing minds are liable BUT Either the directing minds or the company is liable.
Another common pitfall is the one in [larger number] formulation, which often ends up in error. It isn’t One in ten doctors smoke but One in ten doctors smokes. (The subject of that sentence is One (singular) not doctors (plural).)
Next: the subjunctive
Need Free Photos? Try Unsplash
Need an image for a poster, website, or social media post but don’t have a budget for stock or custom photography? Check out Unsplash, where thousands of photographers have generously made their photos available completely free for commercial or noncommercial purposes.
Simply type a keyword into the search bar and you’ll be presented with tons of photos that have been tagged with terms that match or are related to your search. The search function is pretty basic, but I’ve always been able to find what I need by getting creative with alternative search terms.
The site is very straightforward – you’ll see from this FAQ that using Unsplash is not complicated. Once you’ve downloaded an image, it’s yours to do whatever you like with it. There is no requirement to credit the photographer or the site, though it’s encouraged, and Unsplash has made it easy to do so with the “give credit” button that appears on every photo.
Do you have other favourite sites for high-quality, free photos? Please share in the comments.
Mindsets Matter. Make the Shift From Fixed to Growth
Mindsets are simply deeply held beliefs, and in the words of author and professor Dr. Carol Dweck “we can always change our minds”.
Dweck discovered that people generally hold one of two mindsets, a fixed mindset or a growth mindset. And these mindsets have a strong influence on how we approach challenge.
With a fixed mindset, people believe their basic qualities, like their intelligence or talent, are simply fixed traits. They spend their time documenting their intelligence or talent instead of developing them.
Dweck says that with a fixed mindset every situation is evaluated: Will I succeed or fail? Will I look smart or dumb? Will I be accepted or rejected? Will I feel like a winner or a loser?
With a growth mindset, people believe that their most basic abilities are things that can be cultivated through effort. With a growth mindset we evaluate our progress based on how we did today compared with our own past performance. Growth mindset encourages us to take on challenges and contributes to our resilience overall.
To develop your growth mindset try this:
- Notice: When do you find yourself comparing yourself to others?
- Think again: When you catch yourself making this comparison take a moment to pause, and think again.
From a growth mindset consider your own goals, priorities and standards and compare yourself to these. How are you measuring up? What action could you take to improve?
- Test: Start small. Identify an example of fixed mindset thinking and test out a growth mindset approach.
One lawyer I know, Susan, loved cooking but thought she was no good at baking and never would be. She decided to try out a growth mindset by taking on some baking. She started with a simple bread recipe and kept going from there. What she discovered was that her baking kept improving and she really enjoyed it. With fixed mindset she had decided she was a hopeless baker. With growth mindset she realised she was becoming a good baker. Now she is applying this mindset shift to other parts of her life.
Where can you make the shift from fixed to growth?
Finding Federal Regulations
The federal Justice Department’s Consolidated Regulations are organized by regulation title. So how do you find all of the regulations passed under a given statute?
Well, there are a couple of ways, the simplest of which is to go to the act itself in the Consolidated Acts, and select the first letter of the title in the A-Z menu. The left-hand column lists all the acts beginning with that letter, along with their chapter number –
and the right-hand column has PDF links to the acts and little yellow “R” boxes. Any guesses what the R stands for?
Good guess! R is for Regulations. Clicking on the yellow box will take you directly to a complete list of the regulations made under that act. If you scroll up from the list, you will find the main Table of Contents for the act – so a second way to see the regulations would be to open the act directly and scroll down.
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
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]