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

technology  research  practice

All Our Research Tips

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

 

It’s surprising that people routinely get things wrong here.

Alternative subjects
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?

Collective nouns
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

None
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.

Red herrings
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 criteriaAssociates 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
BicepsLatin 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)

 

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]

 

Multiple negatives
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, nejamais, 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.

Nor
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)

 

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

 

 And/or
The construction and/or is criticised by grammarians, prose stylists and many legal drafters (both contractual and statutory). There are good reasons for this.

H.W. Fowler called and/or an ‘ugly device’. It looks as though you couldn’t take the time to think things through and express yourself other than by way of a fairly crude (if expedient) short form. And/or also has an air of the commercial purchase order to it.

There are other reasons to avoid and/or, and they relate to the meaning (and ambiguity) of words.

Disjunctive and, conjunctive or
We usually think of and as being conjunctive – that is, grouping things together – rather than disjunctive (separating things or presenting alternatives). Similarly, or is usually disjunctive. This is largely true, but not always.

Consider these examples:

The Minister of Finance may do X and Y [he can do both X and Y, but he is also free to do only one of them or neither – so and is not only conjunctive but also potentially disjunctive]

The Minister of Justice may do X or Y [here again, she could do either one or neither, but she could also do both – a conjunctive or is one possible interpretation]

To avoid confusion, you are better to say one of the following:

  • both A and B
  • A or B, but not both
  • either A or B
  • A or B, or both

Otherwise, your fate may be like that of the New Jersey judge in this recent case, where repeated use of and/or rendered her jury instructions so ‘hopelessly ambiguous’ that a new trial was ordered.

In contractual (and legislative) drafting, you probably want to avoid any ambiguity that might arise from and/or; in other kinds of legal writing, and/or just isn’t elegant.

Next tip: accentuating the negative

Neil Guthrie (@guthrieneil)

 

This is part 3 of a series on questions you should ask about any electronic research source. Did you miss parts 1 & 2? Find them here and here.

3. What is the Search SYNTAX?

Know your operators – every search is different. Until you know the basic commands for a site – AND, OR, Phrase, etc. – you should consult the “search tips” or “connectors” every time. Many sites include a link to their search tips, operators, connectors, or “search help.” Some, like Saskatchewan Cases, display the operators right on the search page. In CanLII, scroll over the question marks at the end of the command lines for basic commands, and from there click on help page for more detail.

A closely-related and equally crucial question (and the fifth in the list, if you think the thumb is a finger) – what is the default operator? How will the search interpret two words beside each other in the command line without any connector between them? For our Law Society research databases, it is always a phrase – the search will look for those two words in the same order. That’s a bit unusual. Many search engines default to AND, and some to OR.

Increasingly common, though, is a type of hybrid where the search engine looks for the words (1) together in order (phrase), (2) both included but not necessarily together (AND), and (3) either word (OR) – then an algorithm sorts out the order for you, so the most relevant documents are at the top. Yes, for these types of sites maybe you can ignore everything I’ve said about operators and still get somewhat useful results. Fine. But don’t assume that’s the case – I’m talking to you, Millennials!

Stayed tuned for the 4th and final part of this series.

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

 

A reader’s suggestion, this. Good idea, even though it’s more of a contractual drafting or opinions point than a general legal writing tip.

Shall, will and must
The difference is to a large extent idiomatic – that is, subject more to instinct and feel than hard-and-fast grammatical rules. Usage has also changed over the centuries, and varies between North America and Britain. What follows is a distillation, as best I can manage.

In classic usage, shall is used in the first person (I, we) to indicate a wish or ‘mere futurity’. To say I will or we will indicates an element of intention, volition or choice. So, I shall probably be there but I will never do that.

In North America, I shall and we shall are less commonly heard in the ‘mere futurity’ sense, leaving will to perform both that function and to express stronger intention. This gives rise to ambiguity, because we lose the potential distinction between will  and shall. (And shall sometimes performs for us the classic will function, as in We shall overcome.)

In the second person (you) and the third (he, she, it, they), shall takes on the function of command, menace or refusal: You shall repent! or He shall never have any, if I have anything to do with it. Also, Thou shalt not steal, to use the old singular second person (equivalent of tu in French or du in German, as opposed to the plural (or formal singular) vous and Sie.)

In legal drafting, shall is usually used to express a third party’s positive or negative obligations: the Purchaser shall assume all liabilities … Here, shall is synonymous with ‘is obliged to’ or ‘has a duty to’ – command or menace at work. There are arguments that will, if used consistently, would also work: it’s hard to see much of a difference if you said the Purchaser will assume all liabilities – except that shall sounds a bit bossier. But convention (and traditional grammar) are on the side of shall here.

In common parlance must is close to shall in meaning: you must not hit your brother, you shall do this or that. And yet they are not synonymous; in contractual drafting, for example, must often takes on a conditional character: the Borrower must satisfy the following – that is, must do so in order to do something else, but need not.

Should and would
Should is the conditional form of shall. Its use in the first person has all but disappeared from North American usage, but it is classically correct to say I should like to go as a mere expression of desire, and as distinct from the imperative would (I would go, but I can’t).

When used in relation to other people, should is less bossy than shall; it means ‘ought to’, as in you should wash your hands after travelling on the subway. Not dictatorial, if perhaps a bit passive-aggressive.

Should, in opinion-writing, is seen as more qualified than would (this should work as opposed to this would work). William Estey suggests, however, in his book on opinions, that it’s unfair to place the burden on a client to figure out the shades of meaning between the two (and all the other ways we lawyers hedge our own bets). Fair point?

There is also should in this type of construction: Should you wish to leave a message, please do so after the tone. Not incorrect, but fusty – or perhaps fancy for the sake of being fancy. If can always replace should in these instances. Better yet: Please leave a message.

May and might
These can mean the same (or almost the same) when they express possibility:  I may go to the party, I might go to the party.

May also expresses permission: ‘You may not go to the party’, the parent told her teenager.

Because of this dual use of may, caution is advised. Avoid using it for negative obligations, since may not could mean either ‘is not permitted to’ or ‘might not’. Better: shall not.  In contractual drafting, confine may to the meaning ‘reserves the right to’.

Next time: and/or, and, or.

Neil Guthrie (@guthrieneil)

 

In training sessions we always advise articling students to start off their research using secondary sources. While there are instances where it is appropriate to start off research by searching case law and legislation, using secondary sources generally is far more time-efficient since it usually tells you what the relevant legislation and leading cases are. However once you’ve found a reference to a case that appears to be on point, you should not just rely on the summary, but actually read the case. We’ve run into more than one instance where the summary said something quite different from what the case actually said.

Susannah Tredwell

 

First off, the verb is quote and the noun really should be quotation – but I would be fighting a pointless rearguard action in trying to stop people from talking about a quote.

Single and double quotation marks
In the UK, single quotation marks (usually called ‘inverted commas’) are the default, with anything quoted within a quotation going in double quotation marks, like so: She said, ‘The bus driver told me, “You can’t bring such a large animal onto the bus, madam”, but in the end he let me.’

In the US, the position is reversed: double quotation marks to start, single for internal quotations.

Take your pick, but be consistent.

Punctuation
Here again, the Atlantic is the great divide. In the US, all punctuation goes inside the quotation marks, whether it forms part of the quotation or not. In the UK, punctuation goes inside only if it is an actual part of the words quoted (see the example in the previous section).

Quotation marks for special terms
Quotation marks can also be used to ‘to signal that a term is being used in a non[-]standard, ironic, or in another special sense’ (Chicago Manual of Style (2010)).

They can, for instance, be a substitute for so-called: For ‘lunch’, we were given some stale crusts and a glass of flat ginger ale.

Quotation marks are also often used where the term is (or is seen to be) newfangled, a bit slangy. By way of example, I hear that the young people are ‘tweeting’, whatever that means.

Do all of this very, very sparingly – and avoid the trap of thinking that metaphors somehow require quotation marks. There is no need to write The judge ‘pierced the corporate veil’.  Even persons of fairly limited intellect will understand that we aren’t talking about an actual veil here. It might be better, in any event, to educate a non-lawyer about disregarding the separate legal personality of a corporation, but without using insider terminology.

For examples of the overuse of quotation marks, see this highly entertaining blog.

US law reviews seem to think that quotation marks for special terms should be single, to differentiate them from actual quotations (which go in double quotation marks), but I can find no real basis for this. This looks like a case of editors creating rules for the sake of it.

Block quotations
If your quotation is long (more than, say, 40 words?), offset it as a centred block of text with wider margins than the main text. Because you have done this, there is no need for quotation marks around the quoted excerpt: you’ve already indicated that it’s a quotation.

Don’t assume anyone will actually read your long excerpt, however. The tendency is, in fact, to skip over big chunks like this (and, perhaps, for the reader to think you were just too lazy to paraphrase or summarise). You therefore need to explain what is to follow.

And don’t end your paragraph or section or piece with a block quotation – it’s usually more effective wrap up in your own words.

Square brackets
1L students quickly learn to do this, when quoting part of a sentence: ‘[A]ctions speak louder than words’ (‘actions’ not having a  capital A in the source, but needing one in the writer’s sentence). Only lawyers do this, and 99 times out of a hundred it’s unnecessary. Especially in a client piece.

Square brackets are useful to supply missing things (punctuation, words), make editorial comments (‘[that is, disregard the separate legal personality of a corporation]’) or indicate omissions (‘[…]’) – but you could omit the brackets and just use the ellipsis). Try not to use square brackets too much; they are hard on the eye and may disrupt the flow.

Next: shall, will, should, would, may, might, must

Neil Guthrie (@guthrieneil)