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A few more words about would. (For previous advice, see Shall, will, should, would, may, might, must.)
Would is, of course, the conditional form of will. It’s used to express a potential (or non-existent) rather than a certain future state of being.
So it’s I will have the memo for you today but I would like to give you the memo today, but I’ve been asked to work on a big due diligence project instead.
Relatively straightforward, one would think – but one would be wrong.
No, not a strained agreement, but the proper alignment of various verb tenses.
I would be a rich man if I had a dollar for every time I’ve seen something like this:
I would have started on your memo earlier if I would have known that the big due diligence project was about to land on me.
Wrong, so wrong. That second would have needs to be had.
Getting technical with talk of the pluperfect and the conditional perfect (aka past conditional) is likely to confuse, so just remember that it’s never correct to have two would have (or similar) constructions in succession like this.
Happily there isn’t too much of this in legal writing, but open the newspapers and it abounds (especially in the obituaries). By way of example (emphasis added):
‘Steven breathed a rich mixture of political gossip (he would go on to meet all but three of the 20th century’s Prime Ministers).’
That would go should just be a simple went (or just say he later met all but three…).
Ugh. But I certainly hear and sometimes even see would of.
In spoken English, would have can sound like the contracted form would’ve, which has led some astray into thinking that it’s actually would of.
Of course it’s not.
Next week: ‘only’, the lonely
–Neil Guthrie (@guthrieneil)
Keep a List of Provinces That You Can Cut and Paste
(This tip is courtesy of Bronwyn Guiton.)
Librarians are frequently asked to provide lists of legislation from across Canada. To save time answering these kinds of questions, keep a handy list of the provinces and territories in the Notes tool in Outlook. Then when you are asked these kinds of questions you can just paste this list into your email or Word document, saving time and effort.
— Bronwyn Guiton
Your Queries Answered, Part 2
Bewildered on Bay Street asks, ‘Is it “travelled” or ‘traveled”? “focussed” or “focused”?’
In the USA, it would be traveled and traveler; travelled and traveller are more usual in Canada. On the other hand, focused is the better way.
Confounded in Calgary writes, ‘Is it ‘Quebecer’ or ‘Quebecker’?
Traditionally, Quebecker is the correct form, although this is less commonly seen nowadays. Logically, the C in Quebecer should be soft (C followed by E or I generally is, in English), and the E long as a result. You need that K to make it a hard C sound and to keep the short E.
But your humble scribe may be losing the battle on this one.
Embarrassed in Edmonton admits, ‘I’m never sure whether it’s “licence” or “license”.’
Well, it depends what you mean and where you live. In the USA, licence (and practice) are both the noun and verb forms. In the UK, a licence is required for driving, but one is licensed to drive. Your humble scribe would go British on this one.
Related point: US usage demands defense (and offense); on the other side of the Atlantic and (generally) north of the 49th parallel, it’s defence/offence (even though the adjective is defensive/offensive). And while we’re on the subject, don’t say DEE-fence and OH-fence; they really should be pronounced duh-FENCE and off-FENCE.
Perplexed on the Pacific enquires, ‘Is there anything wrong with “as per” or just “per”? They seem like useful expressions to me, but I suspect you may disagree.’
Your humble scribe will quote Robert Hartwell Fiske’s Dictionary of Unendurable English on this:
‘(As) per is commercialese – which is to say, an expression at once hideous and comical – and means nothing more than as or according to.’
Use as usual instead of as per usual; as we discussed for as per our discussion (or per our discussion), as requested instead of (as) per your request.
Troubled in Toronto isn’t sure if it’s OK to refer to ‘the above [or below] paragraph’.
It isn’t, Troubled. These are prepositions or adverbs, not adjectives.
You could say see the passage quoted above [or below], or just see above [or below], but it’s inelegant to talk about the below [or above] passage.
Up next: would
–Neil Guthrie (@guthrieneil)
Rangefindr – You’re Doing It Wrong!
Rangefindr is a fabulous source for searching sentencing ranges in Canada. If you are a criminal lawyer I highly recommend you speak to your firm librarian or whoever is in charge of licensing online resources.
I have had several people tell me that Rangefindr is difficult to use, and in particular that any search returns only a paucity of hits. So I came here to tell you that there is nothing wrong with Rangefindr – you’re just doing it wrong! There, don’t you feel better now? The problem isn’t with Rangefindr, it’s just your shoddy searching technique.
Basically, you’re checking too many boxes. No matter how sophisticated a search engine is, it is limited by the encoding of its data. Rangefindr offers you hundreds of search parameters, but these are only useful to the extent that the individual documents are coded for each parameter.
For example, say the accused in your case was amenable to counselling, and while looking through the various parameters under “Accused” in Rangefindr you see the check box “Amenable to counselling” – so naturally, you check it, right?
Ask yourself, what percentage of Canadian sentencing decisions where the accused was amenable to counselling actually say so in the decision? And further ask, given the granularity of Rangefindr’s data, how likely is it that the coder will have re-entered that particular piece of information into the record? In order for using that check box to return a positive result, both of the above contingencies must have been met.
Let’s further develop our example. Say the accused was male, 45, charged with driving impaired, had no previous charges, and was considered by many to have a “good character,” but was also known to be a heavy drinker.
Begin with the charge – click on “OFFENCES” in the left-hand pane. This part is easy – scroll through the offences, find “Drive impaired” and click on the heading (the words, not the box), and the little box will turn black. Now look at the square at the bottom right of the screen (inside the black rectangle) – it should say “PLEASE SELECT MORE TAGS TO NARROW YOUR SEARCH.” Keep an eye on this square.
Now, let’s click on the second item in the left-pane menu, ACCUSED. And scroll through the many parameters. For the purpose of this exercise, go ahead and click on all that apply, and WATCH what happens in the square in the bottom right corner. When I click Addiction/Alcohol, I see the number 64 – that means there are 64 relevant hits in the database. Now try “Amenable to counselling” – we are down to 3! What happened? Try de-selecting “Amenable” and click “Good character” – 1 hit. In fact, ANY combination of two or more of these criteria quickly brings the results to zero. Is it because there have been no reported Canadian decisions that resemble our case? I hardly think so.
With Rangefindr, the first question you need to ask is: what are the key aspects of this case – the parameters that you are nearly 100% sure would be (1) mentioned prominently in the decision, and (2) coded into the database. Secondly, ask yourself – Self, of the remaining criteria, those vulnerable to being left out of the data entry process, which are most critical to my argument?
Less is more.
After the offence itself, what is the MOST important fact of the case? And which factors are most likely to be included in the record? Let’s say the fact that the accused had no prior record is an important factor. Select “Record” in the left-hand menu, and then click on “No previous custodial sentence.” Our number has dropped to 6 – that’s with no other parameters but the charge. Is this a reliable result? Yes, in the positive sense that we have 6 cases where the accused had no prior record – but NOT in the negative sense. The search has probably screened out many relevant cases where the accused had no criminal record, but where that piece of information did not make it into the database.
For the present example, the correct strategy is to select the offence, then click on your other important criteria one at a time to get cases where the courts considered each of the relevant factors. If you select more than a couple of boxes, you are overlying on contingencies of the data entry process.
The same applies to criteria under COMPLAINANT, CONDITIONS, DETAILS OF CASE, DETAILS OF OFFENCE, JUDGEMENT, PRE-SENTENCE, and RECORD. Only select additional parameters carefully, while keeping an eye on that results box.
A more general strategy would be to first select the charge, then one further key parameter. If the number of results is still high, select the next most important factor, and work your way down – but always check what effect each parameter has on the results, watch for dramatic drops in the number of decisions, and reflect on whether each factor is likely to eliminate good results.
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
E-Mail Pointers for the Millennial Generation (And Others)
For a humorous take on how not to use e-mail at work: http://qz.com/400461/twelve-ways-to-seem-smarter-by-email/
My own suggestions follow.
Don’t reply in haste, much less in anger. Think twice before sending something you think is funny.
Proof-read; don’t rely on spell-check.
Beware of ‘bcc’, ‘reply all’, distribution lists and auto-fill for recipient names – especially when you are dealing with privileged and confidential information. Make sure metadata are scrubbed from attachments (they may not be when you use a mobile device).
Think about who needs to be copied (and who does not).
You represent your firm and yourself in every e-mail sent to third parties.
The ‘subject’ field should contain a brief but meaningful summary of the content of the message. This helps the recipient find the relevant e-mail later, when it’s buried amidst the other thousand things in the in-box. It’s also helpful to summarise the message in the first line or two of the message itself.
One subject per e-mail (this makes them easier to file and retrieve later). Short sentences, short paragraphs, short e-mails. Headings are useful.
Attachments can be annoying (especially if they are other e-mails containing their own attachments).
Use the ‘high priority’ flag very sparingly, if at all.
Be responsive, even if it’s to acknowledge receipt and say you’ll respond later at greater length.
Know when e-mail is not appropriate. If the senior partner calls you on the phone, respond in kind.
Don’t use your mobile device in meetings. It’s rude. If you have to check e-mail or deal with something, step outside.
Think about timing: don’t send and then vanish. Also remember that many people sleep with a mobile device on the bedside table. Your 4 a.m. ping may wake a sleeping client or partner.
Don’t ask recipients to check a box acknowledging that they’ve read your e-mail: it’s passive-aggressive and annoying.
Always set an ‘out of office’ message when you’re not around; this helps to manage expectations. Remember to turn it off as soon as you’re back.
Emoticons and emojis
Tone can be difficult to convey in an e-mail. What you intended as light-hearted banter can be interpreted by the recipient as a snarky comment. So, you might be tempted to resort to one of those cute little pictures that proliferate in your text messages, in order to indicate that it’s all intended in fun.
Don’t succumb to this temptation if (a) the recipient of your e-mail is older than you are, (b) the exchange is professional rather than personal or (c) both (a) and (b). Use smiley faces all you want with your assistant, your friends at another firm or the other associates in your group (but only when you’re scheduling after-works drinks, not when you’re talking about a file).
Otherwise: NO emojis.
In a business setting, e-mail can be a bit more casual than a letter or opinion, but you may want to clothe it in more formal dress when providing advice or replying in a thoughtful way. One-word or one-sentence replies are one thing, but if the message or the recipient is important, your e-mail should be more like a traditional letter.
Always use proper punctuation, capitalisation and grammar. Professional e-mail is no place for LOL, LMFAO, WTF and the like.
‘Hi Dave’ may be an appropriate opener when you’re writing to your peer at another firm, but probably not when it’s some crusty senior partner at McCarthys. ‘Dear So-and-so’ may seem a bit weird in an e-mail, but fear not that it may suggest that an affectionate relationship is being claimed.
Don’t experiment with fonts and formatting. Stick to a standard template – and always include your signature block (with a link to your LinkedIn profile and Twitter feed, if appropriate).
Taming the in-box
Create folders, arranged by client or subject. Save e-mail to your document-management system, if you can. Ruthlessly delete the unnecessary. I never have more than 10 messages in my in-box, if I can help it.
Next time: your queries answered, part 2
–Neil Guthrie (@guthrieneil)
Deciphering Citations for the English Reports
Every so often someone comes to the library with what looks like a particularly odd citation for a case. Odd citations are often a tip-off that the case comes from the English Reports.
The English Reports, also known as the ERs, are a collection of judgments from a number of different English reporters. Because they have been republished, they have a minimum of two citations, e.g. Chudleigh’s Case can be cited both as Jenk. 276 (the original report) and 145 ER 199. The original judgements are known as “nominate reports” because their names generally come from the surname of the original reporter (e.g. Jenk for Jenkins). The abbreviations of the names are what results in the odd citations (e.g. Lush. Adm. is an abbreviation for Lushington’s Admiralty Reports).
The English Reports can be found on CommonLII, HeinOnline and Justis, in addition to other databases. JustCite has a helpful list of abbreviations for the various English Reports.
(If you enjoy catty commentary on law reports, I highly recommend the Wikipedia entry for Espinasse’s Reports.)
— Susannah Tredwell
Singular or Plural?
It’s surprising that people routinely get things wrong here.
If there are two subjects to your sentence, separated by or, the verb should take the number of the subject that is closest to it: Mother or children are to die BUT Is the mother or the children to die? You could also rewrite the sentences to avoid the issue: Mother or children must die, Must mother or children die?
Is it The committee is or The committee are? There are two schools of thought.
In the US, words like committee, firm and board are invariably treated as singular: the entity not its constituent parts.
There is a good case to be made, however, that these words can take a plural verb when you want to emphasise the members of the group over the totality: The [individual members of the] jury are casting votes BUT The jury [the body] reached its verdict; The board has agreed on most issues BUT The board are unable to reach consensus on the thorniest question.
Fowler’s Modern English Usage supports this view, with these examples: The Cabinet is divided (on the grounds that the whole logically precedes division) but The Cabinet are agreed (because it takes two or more individuals to agree). Fowler notes that the distinction can be ‘delicate’, and is one that few will bother to make; ‘any attempt to elaborate rules would be waste labour.’
Current practice in the UK probably goes further than what Fowler had in mind, with results that have some logic but which look outlandish to North Americans. Recent examples from the British press: The digital music giant [Apple Inc.] are unlikely to be impressed by the demand [from Adele to have hard copies of her new album available in Apple stores); Australia [the Australian rugby team] deserve to win the final.
Whichever way you go, make sure you are internally consistent: don’t say During their time in office, the Government has …
This is singular or plural, depending on the context. I looked for books on this subject in the library, but there were none BUT I asked for a volunteer, but none was forthcoming. I would say None of the partners is attending, on the assumption that none is a proxy for not one.
Don’t let extra words throw your sense of number off.
This sort of thing is wrong (but very common): One in five kids who grew up with the internet believe all of it is true (from Quartz). So is this (from the Globe & Mail): Wave of refugees show Europe’s disarray in tackling the crisis… (the verb must be shows, unless you’re taking the position that wave is a plural collective).
There is, there are
There may seem like a singular subject in constructions like There is no excuse for getting this wrong, but it’s not the subject of the sentence (excuse is, actually). There is, in grammatical terms, an expletive (but not the NSFW kind).
As a result, whether it’s there is or there are depends on what follows. So, There is no excuse but There are many things to consider.
Things that aren’t singular
Criteria: We get this from Greek. Singular criterion, plural criteria. Associates are evaluated according to these criteria …
Data: Latin. Singular datum, plural data. The economic data indicate …, as the Financial Times would correctly say. (And it’s best pronounced DAY-ta not DAH-ta.)
Media: More Latin; plural of medium. The medium is the message, and social media are proving that point.
Phenomena: Greek again. This is plural; the singular is phenomenon.
Things that aren’t plural
Biceps: Latin again. Routinely treated as a plural, but it’s not. The correct plural is bicipites, but your trainer is unlikely to understand that; bicepses is better (although it may still attract funny looks).
Kudos: Those pesky Greeks. It means ‘praise’ (singular), so it’s incorrect to say kudos go to so-and-so; and the second syllable rhymes with ‘loss’ not ‘rose’.
Quadriceps: See biceps.
Shambles: Something is a shambles or in a shambles not in shambles (shambles is singular; it means slaughter-house; figuratively, a scene of disorder or devastation).
Triceps: See biceps.
Things that could be either
Forceps: Both singular and plural.
Innings: Both singular and plural. The US singular form inning is a semi-barbarous back-formation.
Lots: There is lots to do in New York BUT There are lots of things to see there.
Things that don’t have a singular form without –s (or don’t usually)
Amends, cahoots, clothes, glasses (in the sense of spectacles), loggerheads, pants, scissors, shenanigans, shorts, smithereens, spectacles (in the sense of glasses).
Trousers is not generally seen without a final S, but one does say trouser-leg, trouser-pocket and trouser-press; and thank-offering is a survival of the obsolete singular thank (a grateful or kindly thought).
Next: e-mail pointers for the millennial generation (and others).
–Neil Guthrie (@guthrieneil)
4 Questions to Ask About Any Database (Part 4)
This is the fourth and final part of a series on questions you should ask about any electronic research source. Catch parts 1-3 of this series here, here and here.
4. How are the results ORDERED?
Don’t assume relevance ranking. Our databases, for example, always order the results in reverse chronology (newest to oldest). These days, many databases offer ranking options (usually in a drop-down menu). So if you are looking at a case law database, think about if you want your results by relevance, date, court level or number of cites. If there are a large number of hits (and you can’t think of how to reduce them), then relevancy may be best. For a small number, level of court or number of citations may be better.
Increasingly, searching filters, such as a menu allowing you to limit to documents from only a single jurisdiction, court level, or date span, can be applied after the search – whereas traditionally they were applied beforehand. CanLII and WestlawNext are two good examples from the Canadian legal world. Filtering search results is a very useful feature – it enables you to search broadly, then gives you considerable control over how the results are displayed and what types of records are visible.
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
Accentuating the Negative
In grammar, the general rule is that you shouldn’t use two negatives. It’s incorrect to say I didn’t see no one, although people will know what you mean. The correct thing is, obviously, I didn’t see anyone.
Contractual drafters like to avoid double negatives because they give rise to ambiguity. The concern isn’t so much over a sentence like I didn’t see know no one, but with repeated use of not or other negatives in a long, complicated sentence where the net effect may be uncertain.
Not all languages are averse to the double negative. Think of French: ne … pas, ne … jamais, ne … rien. And in Greek, negation is piled on negation to create a multi-layered expression of dissent, refusal or denial (something the Greeks have been doing a lot of in recent years).
There are times in English when a double negative can express a subtle shading of doubt or negativity, without outright contradiction. To say I don’t disagree is a bit less certain than the categorical I agree, and that may be a desirable effect. I’ve always wanted to throw this one into conversation, just to see the reaction: I’m not sure that I don’t disagree with you. How’s that for hedging?
Not enough negativity
Sometimes people underuse the negative.
A gaffe that grammarians love to point out is I could care less, when it’s used to express lack of interest in something. If you think about it, it actually means you do care about whatever it is, because it would be possible to care to a lesser degree. You should say you couldn’t care less if you don’t care at all.
A word or two about nor would be in order too. The correct construction is neither … nor (and either … or). By way of example: It is neither fish nor flesh, nor good red herring; either you understand this or you don’t.
As a general rule, don’t use nor if your previous negative is just not (or no). This is wrong: The Tenant agrees that it will not use nor permit the use of any asbestos, polychlorinated biphenyls … So is this (from Lexology): Discontinuing Free App is Not Unfair Competition Nor False Advertising under California Law. When more words pile up between not and what should be or, it’s easy to lose the plot and put a misplaced nor.
Exception: use nor to reinforce a previous negative statement, where nor is preceded by some punctuation (comma, semi-colon, colon, dash) and introduces a new clause. Example: I was not present at the scene of the crime, nor was I even aware that my friends were there.
In short, think about whether – and how – to negate. And remember the words of that immortal bard, Sir Tom Jones: It’s not unusual …
Next time: singular or plural?
–Neil Guthrie (@guthrieneil)
Creating a Complete History of Legislation
The easiest way to create a history of an act is to start with the most recent version of the legislation and work your way backwards. Going forward tends to be more complicated.
Depending on your jurisdiction and how far back you need to go, you may be able to do this entirely using electronic resources. Provincial historical legislation is now available on HeinOnline; check with your law society or library to see if you have access.
Let’s take the (now repealed) Bee Act, RSBC 1996, c 29 as an example. Using the Tables of Legislative Changes on BC Laws, you can see all the changes made to the act since 1996. (Alternatively, you could have used the Table of Statutes at the back of the annual statutes.) You can then look at the Historical Table for the Bee Act which provides a concordance between RSBC 1979 and 1996. Then, depending on what resources are available to you, you can finish the legislative research using HeinOnline or print resources.
The end result looks like:
Foul Brood Bees Act, RSBC 1911, c 18
Amended by SBC 1919, c 7; SBC 1923, c 2; SBC 1920, c 6.
NOTE: Renamed Apiaries Act by SBC 1919, c 7
Apiaries Act, RSBC 1924, c 12
Amended by SBC 1929, c 4, s 2; SBC 1930, c 3, s 2.
Apiaries Act, RSBC 1936, c 11
Amended by SBC 1947, c 5
Apiaries Act, RSBC 1948, c 14
Amended by SBC 1959, c 3
Apiaries Act, RSBC 1960, c 12
Amended by SBC 1963, c 2.
Repealed by S.B.C. 1975, c. 6
Bee Act, SBC 1975, c 6
Amended by SBC 1977, c 2, s 14; SBC 1977, c 75, s 10; SBC 1979, c 22, s 4
Bee Act, RSBC 1979, c 27
Amended by SBC 1980, c 29, s 10; SBC 1980, c 50, s 2; SBC 1988, c 31, ss 1-4.
Bee Act, RSBC 1996, c 29
Amended by SBC 2011, c 25, s 481, Sch (in force 18 Mar 2013); SBC 2007, c 14, ss 213, 215, Sch (in force 1 Dec 2007).
Repealed by SBC 2003, c 7, s 4, effective January 19, 2015 (BC Reg 3/2015)
The two most common challenges that you run into when creating legislative histories are that a) the act is repealed and replaced by another act and b) the act changes its name; both of these challenges are easier to deal with when you go backwards.
You can see from the legislative history of the Bee Act, that both these things happened. In 1975 the Bee Act replaced the existing Apiaries Act. Since I was going backwards I could see that section 32 (1) of SBC 1975, c 6 reads “The Apiaries Act is repealed.” so I knew that there had been an equivalent act to the Bee Act. Similarly in 1919, the name of the act changed from the Foul Brood Bees Act to the Apiaries Act. Since I was going backwards I could see that section 3 of SBC 1919, c 7 changes the short title.
What if you are trying to create a legislative history of a section of an act rather than the whole act?
Again, it is easier to trace it backwards rather than forwards. One challenge is that when acts are consolidated, the sections are renumbered. For example, section 68 of the Income Tax Act, RSBC 1996, c. 215 is not the same as section 68 of the Income Tax Act, RSBC 1979, c 190.
Use the RSBC to find what the equivalent section of an act was in a previous revision. Find the section of interest in the print RSBC volume; the legislative history will be at the bottom of the section.
One challenge that can arise when an act replaces (rather than revises) the previous act, since a legislative history is usually not given. In this situation you may find yourself having to read through the entire act to find the equivalent section. Sometimes (albeit infrequently) there may be a concordance between the two versions of the act. If a concordance doesn’t exist, Hansard can be helpful, since it may indicate what happened to a specific section.
My thanks to Stef Alexandru of Lawson Lundell for the inspiration for this tip.
— Susannah Tredwell