All Our Research Tips
The Fact That … and the Reality Is …
John Laskin, late of the Ontario Court of Appeal, suggests in his ‘Forget the Wind-up and Make the Pitch’, that although ‘this advice may cause mutiny among lawyers and judges’, you should avoid writing sentences containing ‘The fact that …’
It’s much more effective just to state the fact, rather than to state the fact that the fact is a fact. So, not ‘The fact that my client has accepted your offer ..’ but ‘My client’s acceptance of your offer …’ The latter is direct, clear, less wordy.
Similarly, eschew notwithstanding the fact that in favour of the plain English although, and the dreadful due to the fact that for good old because. As Laskin notes, The fact remains that can simply be omitted; it adds nothing but verbosity.
I’m not sure why The reality is … bothers me as much as it does, but it does. Like The fact remains…, it’s useless. Just state what the current state of affairs is, without the pointless preface. And, please, don’t ever say or write The reality is, is that …
–Neil Guthrie (@guthrieneil)
Use Abridgment Topics to Refine Citing References in WestlawNext
WestlawNext Canada includes an excellent Citing References tool. Today’s tip will help you in situations where you are dealing with a long list of citing references for a major case. My example relates to evidence law, but the technique will work with any legal topic.
I’ve recently learned that the law of evidence mostly originates in criminal law, and is transplanted, as needed, to civil law. Thus, most of the citations in Cudmore’s Civil Evidence Handbook are criminal cases. So, if you are a civil litigator, you may wonder from time to time how a criminal law authority on evidence has been applied in civil matters.
Take, for example, R. v. Cloutier 1979 CarswellQue 15, a case that rules that there must be a probative relationship between a fact introduced as evidence and the facts at issue in the matter. Start by pulling up that case in WestlawNext. Now find the Citing References tab and select “Cases and Decisions.” There are 207 references, and at a glance, most of them are criminal cases.
Is there an easy way to filter out the criminal case, and view the civil ones?
Look at the left-hand panel of the results screen. First, make sure you are only viewing Cases and Decisions, not all document types. Most of the filters are exclusive to case law. Going down the screen, you should see “Search within results,” Date, Depth of Treatment, Jurisdiction, Court Level, Treatment Type, Abridgment Topics, and Citation Frequency. Any of these can be used to limit the results to parameters of your choosing.
Note that the search runs immediately as you select a parameter unless you press the “Select Multiple Filters” button – which allows you to choose more than one filter at a time. Most of the time it is best to choose a single filter and see what the results are before adding another.
For the present example, the filter we want is “Abridgment Topics.” Go ahead and press the “Select” button beneath that heading.
A box appears listing possible Abridgment Topics in alphabetical order. When you select a topic, it appears in the right-hand panel of the box under the heading “Your Selections.” In this case, you might select only Civil Practice and Procedure, or to get a broader range of non-criminal cases, you could select a few other topics as well.
Then click the “Filter” button at the bottom of the box. With only Civil Practice and Procedure selected, we go from 207 hits to 15, a very manageable number – and likely to give us a good look at how that evidence rule has been applied in civil courts across Canada.
But don’t forget you have many other possible filters to work with – you can limit the results to recent cases, cases from a particular province, higher court cases, depth or type of treatment, any number of other Abridgment topics, or any combination of the above. So play around, but always being aware what each filter does to your results before adding more.
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
CanLII Adds the Canadian Legal Research and Writing Guide
For anyone looking a good guide to legal research, Catherine Best’s “Best Guide to Canadian Legal Research” has been updated by a team of legal research experts (Melanie Bueckert, André Clair, Maryvon Côté, Yasmin Khan and Mandy Ostick) and added to CanLII’s commentary section.
The revised Canadian Legal Research and Writing Guide is divided up into 13 sections (including “Step-By-Step Legal Research Process”, “Use Commentary to Define and Understand the Issues”, “Guidelines for Online Research”, “Researching Canadian Federal and Provincial Legislation”, “Searching Canadian Case Law”, “Stare Decisis and Techniques of Legal Reasoning and Legal Argument”, “Preparing a Legal Memorandum”, and “Legal Citation”) and includes lots of practical advice.
Highly Anticipated? Hah!
As I’ve suggested previously, odds are if you insert the word clearly in your sentence you are trying to impose clarity on something that isn’t clear at all. If something really is clear, you don’t need to say so.
In the same vein is the phrase highly anticipated (‘This highly anticipated decision from …’; ‘The release of the OSC’s highly anticipated rule on …’). The phrase gets used a lot: according to Slaw’s Canadian Law Blogs Search Engine, it occurs approximately 5,080,000 times in Canadian blog posts.
That sure sounds like over-use – or, in other words, a reason not to use a hackneyed expression.
Not only hackneyed, but also far from the truth. What it usually means is ‘highly anticipated by a single law nerd or small group of them who need to make this blog post sound more important than it probably is’.
You can and should do better in your blogging: show your reader why something is important or interesting; don’t merely assert.
–Neil Guthrie (@guthrieneil)
Is It OK or Okay?
Not a question that arises in connection with drafting a contract or pleadings (one hopes), but certainly in composing e-mail.
Both are recognised forms.
On the traditional assumption that the expression was originally shorthand for all correct (rendered in humorous, dialectical or unschooled US English as oll (or orl) korrect), OK has the merit of being closer to the source.
There is something fishy-sounding about that etymology, I’ve always thought, but the OED and Fowler repeat it. The latter gives some other possible origins and a case reference to Nippon Menkwa Kabushiki Kaisha (Japan Cotton Trading Co Ltd) v Dawsons Bank Ltd  51 Ll LR 147 (PC (Burma), 1935), where Lord Russell of Killowen calls it a ‘commercial barbarism’ but accepts its usage in business transactions (even if, on the facts of the case, writing O.K. on an invoice did not give rise to an estoppel).
The older usage citations in the OED have OK (the first is from 1839), with okay appearing later in the nineteenth century, so OK also appears to have age on its side. Spell with or without periods (I prefer to omit them).
Okeh is a variant (and the name of a jazz record company founded in 1918 by Otto K.E. Heinemann, as an obvious play on his initials and the popular expression). Okey-doke and okey-dokey emerged in the 1930s, Ned Flanders’s okely-dokely circa 1990.
–Neil Guthrie (@guthrieneil)
Bad HR Jargon
We’ve covered bad business jargon in this space, but other fields of endeavour are guilty of polluting the language with their specialist lingo.
Human resources (itself a piece of HR jargon; it used to be personnel or, in a more sexist age, manpower) comes to mind. Here are some examples of HR jargon to avoid; there are many more.
Americans often refer to a diverse attorney when they want to describe a lawyer (as we would typically say in Canada) from a background that is other than white, male, straight, middle class. But in a room full of brown lesbian barristers, there is no diversity (at least on the basis of race, sexual orientation or area of practice). We are diverse only in relation to others and collectively.
What the adjective means in diverse lawyers is, less concisely but more accurately, historically disadvantaged or underrepresented in the legal profession. That’s a bit of a mouthful, so perhaps diverse in this context serves a purpose.
But I still don’t like its imprecision.
Originally, feed-back; and used to describe the return of electrical output from one segment of a circuit or amplifier to an earlier stage of input – like the feedback from the speakers when you’re rocking out on an electric guitar.
From about the 1940s, the word began to be applied metaphorically to a response to any kind of process, often in relation to the kind of behavioural conditioning associated with the American psychologist B.F. Skinner.
More recently, and in HR-speak, feedback has come to mean commentary on someone’s job performance.
Given the origins of the term in circuitry and behavioural science, where feedback is involuntary or automatic, rather than thoughtful or considered, its extension to performance reviews is somewhat unfortunate. Couldn’t we just ask for comments, views or a review? But this is a losing battle; feedback in its HR sense is here to stay.
This is a recent coinage, much loved by those who give (but perhaps not receive) performance reviews.
It was invented as an opposite for reactive, a quality which is perceived as a weakness and in need of a forward-looking alternative (even though reacting is often all one can do when events are unforeseen or unforeseeable, as they often are).
Even those with foresight don’t proact, they simply act; and if one is both thinking ahead, one anticipates. Seen in a positive light, proactive means thoughtful or careful; more neutrally, merely fortunate in predicting an outcome (or in making it look as though one saw it coming).
Either way, proactive is overused HR jargon that is best avoided.
This is another piece of weary HR-ese, with unpleasant overtones of organised fun, forced collegiality and top-down decision-making (Andrea and her team just makes me think it’s all about Andrea, somehow).
Or maybe I’m just not a team-player.
–Neil Guthrie (@guthrieneil)
Has an Act Come Into Force?
While some acts come into force on Royal Assent, many require Proclamation or an Order in Council to do so. A number of provinces publish tables that let you see if a specific act has been proclaimed.
Federal: Go to LEGISinfo, find your act and then click on the link for Coming into Force information. You can also check the Table of Public Statutes and Responsible Ministers which lists all the coming into force information for the consolidated version of an act.
Alberta: Check Recent Proclamations and the Alberta Gazette, Part I (use the Proclamations section of the Table of Contents to find a specific act).
British Columbia: Go to the Regulations Bulletins and look under “Acts in Force” on the Cumulative Regulations Bulletin. As with the Alberta Gazette, you will have to do this year by year.
Newfoundland and Labrador: http://www.assembly.nl.ca/legislation/sr/lists/Proclamation.htm
Nova Scotia: https://nslegislature.ca/legislation/proclamations-nova-scotia-statutes
Nunavut: You can find in force dates in the Table of Public Acts.
Prince Edward Island: You can find in force dates in the Table of Public Acts.
Saskatchewan: The Saskatchewan Gazette, Part I lists both acts proclaimed that year and acts still waiting to be proclaimed.
(My apologies to New Brunswick: I wasn’t able to find a table of in force dates.)
— Susannah Tredwell
The Case of the Disappearing Comma
LinkedIn helpfully provides readymade comments on the updates that your connections post there. If your colleague Luisa has a new job, you can just click on a button below her update to post an immediate Congrats Luisa.
That should be Congrats, Luisa, however. To get technical, this is a vocative construction that traditionally requires a comma before the name of the person being addressed. Similarly, it should be Thanks, Denis and Hello, Yolanda.
In modern professional correspondence by e-mail (or LinkedIn posting), the vocative comma is rarely seen. I suppose I can live with that in the era of Hi Neil as a salutation (and I am one who drops the (non-vocative) comma after Dear Sir or Madam and Yours truly – even in a formal letter).
There are times when the vocative comma is essential, however: I know Ali and I know, Ali mean different things (which should require no explanation).
On a related point, there is some ambiguity in placing the sign-off Thanks, John all on one line; only when the name appears below the Thanks is it clear that it means With thanks from John rather than Thank you to you, John (although actual confusion may not arise in practice).
–Neil Guthrie (@guthrieneil)
Did you know that the Gallop Portal (Government and Legislative Libraries Online Publications Portal) provides free and convenient access to almost 500,000 electronic government publications from all levels of Canadian government?
Launched five year ago by the Association of Parliamentary Libraries in Canada (APLIC), the portal is intended to provide Canadians with an easy way to access, connect, and interact with Canadian government resources. Canadian Legislative and Parliamentary libraries are mandated to provide access to government documents by the Federal government’s Depository Services Program.
APLIC describes the portal as a “one-stop access point” to government publications. Users can search for documents across jurisdiction and language using a variety of filtering options and a straightforward search interface. The portal provides particularly high ease of use compared to other Canadian government websites.
We encourage you to check the Gallop Portal out at gallopportal.ca.
[This tip by Alan Kilpatrick originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
Guidance for the Reluctant Legal Blogger
In the distant past, lawyers used to send printed client updates by mail. Those days are long gone. Then came e-mail, rapidly reaching the saturation point.
You don’t want to clog up your clients’ email in-boxes more than you need to, so push things their way through a brief and punchy blog post.
Blog posts can be published on your firm’s public website and also distributed to a phenomenally big audience through aggregators of online content like Lexology, Mondaq and JD Supra.
Novice blogger? Fear not: here are some tips.
Don’t write about the law; write about how the law affects the people you serve
- Why should the reader care about this information?
A good way to think about blog writing is to consider it a proxy for speaking
- If you were asked about a particular topic in an elevator, what would you tell the person in 30 seconds?
To be engaging, your blog post should do some or all of the following:
- educate, inspire or entertain
- not be boring – no one wants a tedious and overly technical piece with dozens of footnotes
- have a specific client (or type of client) in mind
- share and initiate a conversation
- introduce why the reader should read the post (online content is judged largely by its headline, especially when readers usually see a list of headlines in their feeds)
- provide quick, practical information on how the content affects the reader
- make the reader want to ask you for further information
Blog-writing is a way of sharing your personality
Additional resources to help you:
–Neil Guthrie (@guthrieneil)