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Conflict of laws, also known as private international law, is a topic concerning the rules governing what happens when two or more legal systems clash in a private dispute. Pitel & Rafferty’s text on Conflict of Laws identifies three key questions: (1) whether a court has jurisdiction, (2) what law the court will apply, and (3) whether a judgment from another jurisdiction will be enforced. Unlike public international law, conflict of laws is not the same everywhere, but is particular to each jurisdiction.

As such, some people have asked about developing a Saskatchewan-specific resource for conflict of laws. While most of the issues discussed the textbooks are internationally-based, there are some areas, such as estates law and family property law, where inter-provincial jurisdictional issues become critical. So a Saskatchewan-based resource might be a good idea – we’ll look into it!

Nationally, the most often-cited text is Castel & Walker’s Canadian Conflict of Laws. The current (6th) edition is a two-volume looseleaf published by LexisNexis, which is available at our libraries in Regina and Saskatoon. For a more concise text, try the aforementioned Pitel and Rafferty, a volume in Irwin’s Essentials of Canadian Law series, which are available to Saskatchewan lawyers online through the Members Section of our website. Also available through the Members Section, and our shelves, is the Canadian Encyclopedic Digest volume on Conflict of Laws, which is cross-referenced to related case law in the Canadian Abridgment.

Internationally, the library maintains the current edition of the classic Dicey Morris and Collins book on The Conflict of Laws, published by Sweet & Maxwell in London. At a glance, I wasn’t sure how relevant this text is to Canadian legal disputes (unless they involve the British jurisdiction specifically), but it has been cited by Canadian courts over 400 times in CanLii, including in recent decisions by the Saskatchewan Court of Appeal and Supreme Court of Canada, so apparently it still carries some authority.

If you have any questions about the above, or have any recommendations about sources we should acquire or develop, please add your comments below, or otherwise contact us.

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

 

Oh, Microsoft, Apple and your ilk! You think you’re being helpful when you release new tools and updates, but you generally wreak more havoc than you bring clarity and certainty.

Herewith some views on some various writing ‘solutions’ (to use the lingo of Silicon Valley).

Auto-correct
I am a terrible typist, so in some ways a feature that automatically corrects obvious typos is a blessing.

But also a curse. The auto-correct feature that you get with the standard Microsoft products was not devised by lawyers, nor is it set up to work in a Canadian setting. It can also defy common sense and good English.

Microsoft Word thinks that tortious (relating to a civil wrong) must be tortuous (twisty), dislikes honour, offence and the like, assumes I mean paragraph © not paragraph (c), and insists I want 5th when I actually want 5th (the superscript is incorrect in legal citations, by the bye).

You can reset the language from US English to Canadian (or Caribbean, or Australian, or UK…) English, but that’s a bit fiddly to do – and what dictionaries are they relying on? If the word ‘Oxford’ isn’t in the title, it’s not a proper dictionary, to my mind.

The auto-correct feature that comes with Apple’s version of Microsoft is even more aggressive. And texting is worse: no wonder there is a website dedicated to frustrating (and funny) iPhone auto-correct failures.

Auto-fill
How many times have you sent an e-mail to the wrong person because some other name was automatically pulled out of your contacts or your list of previous recipients?

Often this isn’t really an issue (although your mother may wonder why you’re asking her to join the gang for drinks on Friday night), but if you’re a lawyer it can be very scary indeed.

Many a privileged e-mail has wound up with the wrong party as a result of the auto-fill feature, and that is clearly A Bad Thing.

Spell-check
Same comments as for auto-correct. No, I don’t mean cheese when I type cheque

In a legal document, you’ll end up with lots of wavy lines under technical terms or regional spellings which Word just doesn’t recognise. And your humble scribe hasn’t managed to figure out how to add a (correct) spelling to spell-check’s dictionary.

Use this feature with caution – it’s never a substitute for printing off a hard copy and doing some proper proofreading.

Microsoft Word Proofing
This is a bit buried. Go to the Review tab in the top toolbar in Microsoft Word, then Review > Language > Language Preferences > Proofing.

You’ll get a menu that allows you to select your auto-correct options (you can turn off the automatic correction of (c) to ©, for example).

You can also run a check of grammatical and stylistic problems or errors, including misused words, run-on sentences, sentence fragments, clichés, colloquialisms, gender-specific language, passive constructions, unclear phrasing and overly long sentences.

Another option is to get readability statistics – and I bet you most lawyers will get high scores for the number of passive constructions (which isn’t good).

A lot of subjectivity there, but at least you can accept or reject the suggested changes. It’s doubtful that the software is attuned to legal terminology, but it may help you avoid some obvious problems.

WordRake
This one isn’t free, but it may also be helpful. WordRake says it ‘tightens, tones, and clarifies your writing’ (like calisthenics for prose?), aiming for both ‘clarity and brevity’. By clicking  ‘the “rake” button … the in-line editor ripple[s] through your document, suggesting edits to remove clutter and improve unclear phrasing, just like a live editor.’

Sounds great! In a recent demo with a real lawyer’s document, WordRake picked up a lot of boring, passive constructions and suggested more concise alternatives to verbose phrasing. But it failed to pick up the (ghastly) facilitative and didn’t always handle idioms well. It won’t catch grammar and spelling errors.

Like all the other tools, helpful as far as it goes, but unreliable.

Next time: noun-fatigue

Neil Guthrie (@guthrieneil)

 

Today’s SLAW tip is short and sweet. If you’d like to see an overview of the current status of federal bills, the Parliament of Canada website has a handy table: http://www.parl.gc.ca/LegisInfo/LAAG.aspx.

Susannah Tredwell

 

The proof is in the pudding
This kind of makes sense, perhaps if you grew up in a culture where it is common to put a coin or other prize in a festive dessert (like the English at Christmas or the French on the jour des Rois).

But that isn’t the origin of the phrase. In its full, correct form, it’s the proof of the pudding is in the eating.

In other words, you don’t know what the thing is going to taste like until you actually sample it. Also applied metaphorically to any situation or thing that needs to be tested before you can say it worked.

For all intensive purposes
A friend suggested I include this, but I didn’t think people actually said it – until I heard it recently at a meeting. Cringe.

A malapropism for for all intents and purposes, of course.

This begs the question
Often used by someone who wants to say, ‘This raises another issue …’ – but it’s not quite what the phrase means.

To trot out some Latin (never to be used again), the original expression is petitio principii, a rhetorical term for a statement containing circular reasoning.

That is, a statement that offers, as proof of its truth, another statement that itself requires proof: for example, ‘God is great because He is the Supreme Being.’

Sooner than later
This is now frequently heard (thank you, Drake). While it does make some sense, it lacks the elegance and completeness of thought of the original phrasing: sooner rather than later.

Is confusion with sooner or later at work?

I could care less
We’ve had this one before: see Accentuating the negative.

Pedants and other word nerds love to criticise 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.

The devil is in the details
Misused if you take the view that it’s a later variant of the original God is in the details.

They both mean the same thing: you cannot fully understand or appreciate something unless you look at the inner workings, the fine print, the subtleties. In the one version, those details will send you to perdition if overlooked; in the other, they are sublime.

Often attributed to the architect Ludwig Mies van der Rohe (1886-1969), but probably older.

Out of pocket
I didn’t realise people misused this until I went to a meeting at an accounting firm (where management-consulting-speak is much in evidence).

The person at the meeting used it to mean ‘unavailable, out of the office, out of the picture, inaccessible’. What it actually means is to have disbursed money from one’s actual or metaphorical pocket: I am out of pocket by about 20 bucks because I paid for everyone’s coffee.

Hell hath no fury
Completed by most with like a woman scorned, but this is a misquotation. The original (from William Congreve’s Mourning Bride (1697)):

Heav’n has no Rage like Love to Hatred turn’d,

Nor Hell a Fury like a Woman scorn’d.

But that brings us to a more important point. The ‘scorned woman’ business is more than a bit sexist, and most of the other phrases in today’s list (with the possible exception of I couldn’t care less) are decidedly shopworn.

You’d be better to avoid hackneyed expressions and tired old proverbs, in favour of wording that is direct and original.

Next week: helpful (but unreliable) software tools

Neil Guthrie (@guthrieneil)

 

HeinOnline is a popular full-text journal database available in the Law Society Library’s Members’ Section. Your firm’s library may also have a subscription.

Did you know that HeinOnline has an excellent blog?  Here are some recent research tips from their blog:

We encourage you to consider subscribing to HeinOnline’s blog!

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

 

A short primer on what is called ‘point first’ writing.

You might be tempted to keep your reader in suspense about your conclusion or even the very subject of your blog post or client update, but that would be a mistake – you aren’t aiming to write a mystery novel or a cliff-hanging thriller.

Like most people, your client is busy and has a short attention span – so get to the point.

Point-first writing is also effective in memos, factums and letters.

Start with your conclusion and then explain how you got there. Begin by expressing the general rule, and then explain the exceptions. Open with the general, then give the specifics.

This will tell the reader what your piece is about, up front. He or she can then decide to read on, in order to get the details or the nuances. The reader can also decide to come back to your piece later (or not at all).

A clear sense of direction right from the opening line guides the reader: the last thing you want to do is force the reader to ask, ‘What’s this all about and where is it going?’

It’s also helpful to wrap up at the end with a restatement of your general point, to make sure the reader hasn’t lost the plot in the mean time.

It’s hard to improve on what Justice Laskin of the Ontario Court of Appeal has to say in Forget the Wind-up and Make the Pitch:

Of all of my suggestions, I consider point-first writing the most important. Point first writing, more than anything else, will improve the clarity and persuasive of your writing.

State your point or proposition before you develop or discuss it. Do not write your factum like a mystery novel in which the conclusion is revealed only in the final paragraph, if at all. In other words, give the context before discussing the details. Indeed, point first writing puts into practice the principle of context before details. Point first writing should be used throughout your factum, both in the facts part and in the law part, and within those parts, in every section and in every paragraph. Whenever you are about to dump detail on the reader, give the reader the point of the detail first.

We see far too many factums that contain long meandering paragraphs, in which the point of each paragraph is never stated, or almost as bad, is stated three paragraphs later. This is not reader-friendly advocacy. You can fix this problem in these ways. At the beginning of the paragraph, tell the reader what topic or idea you are going to discuss in the rest of the paragraph. Try to restrict each paragraph to one main idea or topic. Then, in the first sentence or two of each paragraph, articulate the point of the paragraph, usually your conclusion or submission on the issue. The remainder of the paragraph will discuss the submission, elaborate on it, support it, or qualify it. This is point first writing.

Unfortunately, too many factums contain either point-last writing or no-point-at-all-writing.

Equally applicable to other kinds of legal writing.

To recapitulate: point first; explain; conclude.

Next time: phrases we love to misuse

Neil Guthrie (@guthrieneil)

 

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

 

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)

 

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]

 

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)