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

technology  research  practice

All Our Research Tips

On a recent Canada Day, someone on LinkedIn referred to O’Canada, which is clearly wrong. (O’ is confined to Irish surnames, where it is the anglicised version of the Gaelic Ó or Ua, meaning ‘descendant of’; M(a)c [or M’], as for the Scots, means ‘son of’).

But is it O Canada, Oh! Canada or what?

O, not followed by punctuation and closely linked in sense to what follows, is what’s called a vocative – and is correct in things like national anthems or hymns.

Oh is usually followed by punctuation and is more like a stand-alone exclamation tacked on to the rest: Oh, hell! Oh! what a scoundrel! Oh, no you don’t!

Usage of O and Oh has not always been consistent, however (think back to the revue Oh! Calcutta! if you’re old enough).

But O’Canada has never been OK.

Neil Guthrie (@guthrieneil)

 

Absent
Odds are, the only way you used this word before you went to law school was to describe physical absence: I was absent from school that day because I had the flu.

Then, all of a sudden, in 1L you started saying things like absent evidence to the contrary because it made you sound all, like, lawyer-y.

Please revert to your pre-law ways. Without or even in the absence of will strike your non-lawyer readers as normal.

And that’s a good thing.

In a position …
You aren’t in a position to do X, Y, or Z?

Just say I can’t do X, Y or Z, which is more direct and avoids suggestions of awkward body poses.

Indicate
This is an example of three syllables where one or two would suffice: show, say, suggest are all shorter – and actually clearer.

Upon
The lawyer said (pompously): Upon my return to the office …

 Please, just When I return or On my return. Or even When I get back.

Neil Guthrie (@guthrieneil)

 

Based on a discussion on the CALL listserv – many thanks to Martha Murphy for all the information.

One of the services typically offered by law libraries is legislative tracking. Examples of this service include tracking a bill from First Reading to Royal Assent (and beyond) and alerting users to proposed changes to an existing piece of legislation. 

Depending on how much legislation they need to track, librarians can either check the source (e.g. LEGISinfo or legislative website) on a regular basis or they can set up an alert for any legislative changes. The federal government and some provinces (such as Nova Scotia and Quebec) offer RSS feeds that can be used to track legislation. CanLII also has an RSS feed.

Recently a question came up on the Canadian Association of Law Libraries listserv as to what tools people used. The following is a list of resources to track Canadian legislation that were suggested by CALL-ACBD members:

  • Codify Legal Publishing allows users to set up alerts, with the first three feeds being free 
  • GovtMonitor allows users to track and monitor federal and provincial (Ontario and Alberta) legislation, regulations, Hansards etc.
  • LexisNexis’s Canadian Legislative Pulse allows users to monitor the progress of bills as well as notifying them of any proposed changes to legislation
  • LexBox includes an add-on for free CanLII alerts
  • Optimize Employment and Optimize Pensions offer legislative tracking
  • Quickscribe allows users to set alerts for any changes to BC Statutes and Regulations; users can also set up keyword alerts for BC Hansard ad Orders in Council 
  • Thomson Reuters’ Canada Statute Service
  • WestlawNext’s Legislative Watch “allows you to track individual bills or bills relating to specific statutes for deeper, more efficient research.” 
  • WestlawNext Canada and Lexis Advance Quicklaw allows users to set up alerts

Susannah Tredwell

 

We’ve covered a(n) historical already: an before an H word is, essentially, a historical holdover we can do without; but do it if it makes you feel better.

We have, however, safely abandoned the an that used to go before words like eulogy, one, unique and unit.

A reader has asked a related question about abbreviations. Is it an LLB or a LLB? A LCBO outlet or an LCBO outlet?

I think the classical rule was to use whichever form of the indefinite article would be appropriate if the abbreviation were spelled out in full: a LLP for a limited liability partnership..

In speech, however, people naturally began to say things like an MP – and you can do this in writing too, especially where the abbreviated form is more commonly used than the full version.

Neil Guthrie (@guthrieneil)

 

Remanded back
I heard this on the CBC, and I’m hoping it hasn’t made its way into criminal lawyers’ writing: The suspect was remanded back into custody.

The re­- prefix means ‘back’, so it is just remanded (and usually in custody, sometimes to, but not into).

Similarly, not refer back – just refer.

Ditto revert etc.

The reason why
Lord Tennyson may be to blame for this one (or C.V. Wedgwood): ‘Theirs not to reason why, theirs but to do or to die’ (The Charge of the Light Brigade).

It’s a pretty awful poem, but it’s worse to say The reason why the defendant did this is…; it’s just The reason the defendant did this is…

And please, never the reason is because or, worse, the reason why is because (the latter something also heard on the CBC).

The reason is that … can work, however.

Still remain
If something remains, it’s still there – so still is a tautology.

Which is to say, unnecessary.

Neil Guthrie (@guthrieneil)

 

If you are unfamiliar with this writer, head to the nearest independent bookstore (Ben McNally would be an excellent choice in Toronto) and buy her unusual and compelling novels Speedboat (1976) and Pitch Dark (1983), both recently reissued under the New York Review of Books imprint.

What have they got to do with legal writing?

After completing her doctorate at the Sorbonne, Adler received a JD from Yale but never practised law.

Her training in law (and linguistics) must have prompted this perceptive observation of a lawyerly or that is more conjunctive than disjunctive: ‘And I’ve found, I think, the strongest “or” in language anywhere. It’s the lawyers’ phrase: as he then well knew or should have known. The strongest or.’

And she decries the overuse/misuse of literally and presently in a passage on the ‘assault mode’ of cinema reviewers:

‘“Literally,” in every single case, meant figuratively; that is, not literally. This film will literally grab you by the throat. This book will literally knock you out of your chair. “Presently” always meant not soon but now.’

Neil Guthrie (@guthrieneil)

 

The question came up recently on the CALL listserv about how to cite online looseleafs, specifically those available on Thomson Reuters’ ProView platform.

The McGill Guide suggests citing print looseleafs as follows:

Author, Title (publication information) (Loose-leaf revision, supplement number or date), pinpoint.

However the McGill Guide does not address the question of how to cite a looseleaf that’s been accessed online. Extrapolating from section 6.2.1 of the McGill Guide (“Books”), it makes sense to add the online source at the end, e.g.

Author, Title (publication information) (Loose-leaf revision, supplement number or date), pinpoint (WL Can).

Note that Appendix E of the McGill Guide lists a number of abbreviations for online services, but not ones for Lexis Advance or ProView. 

Many thanks to Esther Bélanger of Fasken Martineau DuMoulin who provided the following information:

[Thomson Reuters] are recommending this form :

Donald MacOdrum, Fox on the Canadian law of patents (Consulted on 29 August 2019), (Toronto: Thomson Reuters), ch 14 at 10 (Thomson Reuters eLooseleaf Library).

It is probably more practical to follow the McGill Guide’s lead and cite the revision number/date rather than the date it was consulted.

Esther also noted that Thomson Reuters sensibly recommends “looseleaf titles, whether in print or electronically … should be cited to chapter and section number/heading, not to page or paragraph numbers.”

Susannah Tredwell

 

Broach/brooch
You broach a subject when you raise it with someone: The partner
broached the issue of missed deadlines with the hapless associate
.

A brooch is a piece of jewellery typically pinned to the upper breast: The Queen always wears a large diamond brooch on her coat or dress, but her ancestor James I preferred to pin one to his hat.

The two words are pronounced in the same way (like broach).

Mortgagee/mortgagor
This shouldn’t need to be mentioned, but you’d be surprised – shocked, really – by the number of lawyers who have said to me that they sometimes get confused about which is which.

One gives a mortgage to a lender, perhaps to the point of being mortgaged to the hilt. So, if you like, think of the mortgagee as the donee in this scenario.

That is, the bank or some other lender who takes security for the loan (although this person is the giver (donor) rather than the recipient of credit).

The mortgagor, then, is the giver of the mortgage (but the taker of credit).

Shined/shone
They mean the same thing, but people get confused about which one to use.

The verb shine has two forms in the past, shined and shone.

Research yields a general rule of thumb: shined tends to be used where the verb has an object (I shined my shoes but The moon shone brightly).

This isn’t invariably the case. It is more natural to say She shone her flashlight into the dark cellar or The inquiry shone a light into the dark world of cryptocurrency.

I am led to believe that Americans pronounce shone to rhyme with tone not gone. Shudder.

Neil Guthrie (@guthrieneil)

 

Do you lend someone money or do you loan it?

You can do either, in fact. (The noun is always loan.)

The verb lend, in the sense of granting someone else temporary possession of something in the expectation of its eventual return, is an old one: Ælfric used it in his Grammar more than a thousand years ago.

Loan as a verb isn’t much more recent, going back at least as far as the early thirteenth century. In modern usage, however, the OED says it is ‘chiefly US’.

How we use the two verbs in this northern part of North America is, I think, idiomatic – with loan more frequent (but not universal) in a transactional setting.

Can you lend me ten bucks?

I will lend you the book, but please return it.

She lent me a hand when the going was tough.

The room doesn’t lend itself well to groups of more than ten.

Banks lend money at interest.

The finance company loans money at exorbitant rates.

The National Gallery loaned/lent the painting to the travelling exhibition.

Neil Guthrie (@guthrieneil)

 

This is one of those words with a weird function confined largely to the world of law.

The ordinary current meaning of deem, according to the OED is, essentially, to consider, think or judge (in a non-judicial way).

But lawyers have a special meaning, where deeming means treating A as if it were B and not A. Creating a legal fiction, in other words (and that doesn’t mean John Grisham).

This comes up in my teaching, where the law school will occasionally stick a deemed Wednesday in the calendar, in order to make up for an actual Wednesday sacrificed for some reason like a holiday or special event.

It also comes up a lot in statutory drafting, where all kinds of things are deemed to be other things for legal purposes: the word deemed occurs 4141 times in the Income Tax Act (Canada), for example.

Oddly, the OED’s other definitions of deem, while they involve judgment of some kind, don’t quite capture the ‘treating A as if it were B’ meaning that is familiar to lawyers.

One legislative drafter says that the ordinary ‘consider’ usage should be avoided: ‘Phrases like “if he deems fit” or “as he deems necessary” are objectionable as deviations from common speech’ (GC Thornton, Legislative Drafting, 2d ed (1979), 83-4, cited in Black’s Law Dictionary).

It appears that the Dictionary would think the legislative use of deem is actually the departure from ordinary usage – but intelligent people can disagree.

This division of opinion may cease to matter. Ruth Sullivan suggests that modern legal drafters have already ditched deem in the ‘consider’ sense and are starting to say is considered or just is when they wish to create legal fictions (Sullivan on the Construction of Statutes, 6th ed (Markham, Ont: LexisNexis Canada, 2014), at §4.105).

Neil Guthrie (@guthrieneil)