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A short tip today to remind you that you can deep link to a specific paragraph for most judgments on CanLII. This is helpful when you want to bring a colleague’s attention to specific paragraphs in a judgment.

Each decision on CanLII has a permanent URL, which will look like this:

http://www.canlii.org/en/ca/scc/doc/2016/2016scc18/2016scc18.html

To create a link directly to paragraph 21 of this decision, just add #par21 after this permanent URL. The link to paragraph 21 of the decision would look like this:

http://www.canlii.org/en/ca/scc/doc/2016/2016scc18/2016scc18.html#par21

I often use this when I’m sending a list of relevant case law to a colleague and want them to be able to dive into the most relevant excerpts, as opposed to flipping back and forth to my email to double check which paragraph I mentioned. For example, if I wanted to share some recent judicial consideration of section 8 of the federal Interest Act, I might send them the following linked list.

My thanks to Frédéric Pelletier, of Lexum, who wrote about this on the CanLII blog back in 2011. He included a caveat to his post, which I will reproduce below:

Please note that many older decisions do not have numbered paragraphs and so this tip will not work [for them]. Also, since this feature is the result of automated processing, there will always remain a small proportion of decisions which numbered paragraphs can’t be properly tagged.

Bronwyn Guiton (@BronwynMaye)

 

By this, I don’t mean where partners spend their week-ends. Instead, I have horrors like these in mind:

herein

therein

wherein

hereinafter

thereinafter

heretofore

herewith

therewith

aforementioned [or (shudder) its bastard progeny, ‘above-referenced’]

thereof

thereto

whereas

whereof

whereupon

hitherto

inasmuch as

notwithstanding

As Richard Wydick puts it, these words ‘give writing a legal smell, but they carry little or no legal substance. When they are used in writing addressed to non-lawyers, they baffle and annoy. When used in other legal writing, they give a false sense of precision and sometimes obscure a dangerous gap in analysis’ (Plain English for Lawyers, 5th ed (2005), 58).

Avoid that bad legal smell and don’t use words like these in your client piece – and think about ways to avoid them in legal drafting too.

Next time: your queries answered

Neil Guthrie (@guthrieneil)

 

Certain questions come up time and time again. You can save time by keeping a list of the most frequently asked questions and their answers; each time one of the questions on the list gets asked you can just cut and paste the answer.

FAQs can also work as a knowledge management tool. Although you may answer certain questions frequently, other staff members may not. One solution is to have these questions and answers saved centrally so they are accessible to all library staff.

To get even more bang for your buck, put these questions and answers on your intranet or website so your end users can easily find them. For example, Courthouse Libraries BC has a list of Asked and Answered questions on its website; based on a list that was originally developed as a private tool for Courthouse Library staff.

 

The law, for starters – but there is a bit more to it than that.

Here are some suggestions, adapted from the Law Society of Upper Canada’s Guide to Business Development for Women Lawyers (January 2013). They are equally applicable to men.

  • Choose your topic carefully
    • write about something you actually practise, know about or want to develop as an area of specialisation
    • you don’t want people to think you’re an expert on the basis of one article
  • Recycle old work
    • a memo for a file could be the basis of a client piece
    • but be careful to remove any information that could identify your client
    • strip out technical terms, footnotes, citations
    • make sure you bring things up to date
    • the same piece can (within reason) be published in more than one place, often with only minor adjustments
  • Get your piece in front of the right audience
    • a legal journal, magazine or newspaper may be read by other lawyers but not by businesspeople
    • think about industry/trade publications or general news outlets – you have a better chance of being read by non-lawyer clients
  • A descriptive piece on recent developments in a particular area of law is always good
    • also easy to write and can get broad readership
  • Other ideas
    • what challenges are your clients facing? how do other industries cope with similar challenges? tell a story based on real examples
    • what are the current trends in an industry or area of law you know about?
    • what kinds of questions have you been getting from clients or readers?
    • what have you read lately, and what can you add? (but don’t be catty about other people or present law as a world of insiders commenting on each other)
    • what interests you about your practice area? (but remember that not everyone may share your enthusiasm for the law of drainage – you may have to make that interesting for other people, or at least explain why it might actually be important to them)
    • what mistakes have you made and what did you learn? (careful with this one, though; don’t alarm a client or your insurer)
  • Be timely
    • publish as quickly as you can on breaking developments
    • but don’t sacrifice care in thinking, writing, fact-checking, vetting by someone more senior, editing, proof-reading
  • Include a picture and brief bio
    • your piece should be accompanied by a professional headshot wherever possible
    • include a short bio (short!); bonus marks if you can be distinctive without being gimmicky
    • link to appropriate social media (LinkedIn profile, maybe your Twitter handle; not Instagram or Facebook)
    • if you’re writing for an external publication, add a disclaimer that the views expressed are your own and not necessarily your employer’s

Next: lawyerly compounds

Neil Guthrie (@guthrieneil)

 

My sincere thanks to my fellow law librarian Diane Crossley, and to the judicial staff at the BC Superior Law Courts for collaborating with me on this column.

In a recent tip about what’s on CanLII, we learned that “Most routine matters aren’t written up in decisions, so the information related to them is not generally publicly available online. This means that the information available on CanLII (or any source of caselaw) for subjects like sentencing is mostly for unusual matters and outcomes.”

In today’s tip, you’ll learn more about when and how criminal conviction and sentencing decisions are made public. I’m from BC so these details are specific to my jurisdiction.

The first thing to remember is that jury decisions will never include reasons for the conviction or acquittal; reasons for conviction are only prepared in a trial where an accused is being tried by judge alone.  If a trial ends in a conviction, the judge must then sentence the offender so there will be a sentencing decision from a judge. If you are lucky in your legal research, these decisions may be found on the court’s website, or on CanLII, Westlaw, or Quicklaw. However, judges most commonly issue their sentencing decisions orally, and the decision may not get transcribed or published for you to find.

In the BC Provincial Court, oral sentencing decisions are not automatically transcribed and published.

In the BC Supreme Court, although all oral reasons for judgment on sentencing are transcribed, and most are published on the Court’s website, each judge does have the discretion to decide whether they will publish their sentencing reasons.  Sometimes the judge will edit their sentencing reasons to remove certain information (i.e. identity of complainants or witnesses) in order to publish their reasons while still complying with publications bans. In cases where the judge has not allowed their reasons to be published, a copy of the reasons is in the court file and is available to the public if it is not subject to a sealing order.

In BC Supreme Court, criminal procedural reasons (i.e. voir dire) are sometimes published, but only at the conclusion of the trial.  Whether these reasons have been given orally or in written form, the judge has the discretion to decide if and when these reasons are published.  

In order to obtain copies of unpublished sentencing decisions in BC, researchers need to know that the court file exists (i.e. know the file number and court level) and then pay for a transcription of the decision from an authorized third party transcription company.

A common quandary for criminal law researchers is determining whether the courts have ever weighed in on a specific fact pattern and assigned a sentence. While the first step is to consult published decisions and a textbook on the topic, we also recommend looking at news archive databases for stories about court proceedings where decisions may not have been published. Newspapers will write stories on alleged crimes without reference to whether the eventual decision is published. If the news story seems promising for your fact pattern and includes the name of the accused, you can take that name to the likely local court registry and ask them to search for the file using that name. This approach to criminal justice legal research has served us well and regularly turns up helpful decisions that would otherwise be forgotten in the registry archives.

If you are interested in learning more about what the BC Courts say on this topic, I recommend the following pages:

 

The infinitive of a verb is the form with ‘to’ in front of it. As in, to be or not to be.

A split infinitive is a verb in this form, but with something stuck between to and the main bit: to not be, by way of example.

People (OK, grammar nerds) have been getting their knickers in a twist about split infinitives for ages.

Writing back in 1926, H.W. Fowler divided the world into (1) those who neither know nor care about split infinitives, (2) those who don’t really know what they are, but think they’re bad, (3) those who know and condemn them, and (4) those who know and distinguish.

Ever since ‘to boldly go’ flashed across people’s TVs screens in the 1960s, the world has largely fallen into category (1).

Herewith (not a word you should use in a client piece, by the bye), a plea to put yourself in category (4).

To give Gene Roddenberry his due, to boldly go where no man has ever gone before does have a good ring to it. To really understand is also fine, and sounds less stilted (at least today) than the classically correct really to understand. But to function fully is better than either to fully function or fully to function.

Routine splitting of infinitives can have a deadening effect. Compare:

I told you to not do it

I told you not to do it.

She resolved to never do it again

She resolved never to do it again.

In each case, the un-split infinitive is stronger; there is a kind of built-in pause for effect. Hamlet didn’t say to be or to not be, with good reason.

Think as well about what you actually intend to say (Fowler’s examples): our objective is to further cement and our objective is further to cement have slightly different meanings (the first, more cementing; the second, more objectives). A subtle distinction, but we’re lawyers – people pay us to make these.

Next time: so what should I write about?

Neil Guthrie (@guthrieneil)

 

My tip follows up on Bronwyn’s recent tip about noting up case law. Noting up legislation allows you to see how courts have interpreted a specific piece of legislation; generally the court refers to a section or sections of an act or regulation rather than the entire thing.

The fact that legislation is constantly changing does add some challenges to the noting up process. When noting up legislation, keep the following things in mind:

  • Legislation changes. Legislation is constantly being amended, and a section of an act may be dramatically different after an amendment. Check that the text of the section a case is referring to reads the same as the text of the section you are interested in.
  • Section numbers change from consolidation to consolidation. Acts are renumbered when a revised consolidation is produced. Section 27 of the R.S.C. 1985 version of an act may not refer to the same thing as section 27 of the R.S.C. 1970 version of that act. If you are noting up a previous version of an act, you will need to confirm that you are noting up the correct section number.
  • As with case law, use more than one database if possible.
  • Databases differ in what they cover. All electronic databases have scope and date limitations for noting up. If you are noting up older pieces of legislation, you may have to do a full text search in order to find older cases that the note up doesn’t catch.

 

Said
I think you’ll agree that ‘said’ (as in ‘the said party’ when you’ve previously referred to that party) is a little fusty-sounding, and has no place in your jazzy client-focused blog post or article.

And even in contractual drafting, it sounds more than a little antiquated. Said is an unnecessary archaism: be done with it.

Same
More persistent is ‘same’. To use an example from a few weeks back (emphasis added):

A recent case from the ONSC clarifies the law on whether municipalities can regulate boathouses and whether the Building Code Act applies to same, finding that (i) municipalities have jurisdiction to zone Ontario lakes and apply zoning by-laws to lakes, regulating construction of boathouses and other structures; and (ii) the Building Code Act applies to such structures, where not otherwise prohibited by the by-laws and the Public Lands Act.

Do we actually talk this way? Of course not. You would just say something like ‘whether municipalities can regulate boathouses and whether the Building Code Act applies to them’.

Ross Guberman (legal writing maven) has this to say about ‘same’ in this context: ‘archaic and awkward – a parody of legalese’. The Oxford English Dictionary agrees, suggesting that the word is ‘often merely the equivalent of a personal pronoun; he, she, it, they’.

Such
‘Such’ is another one in this category, also used in the boathouse example, where it’s used in the same way as ‘said’. Wouldn’t a normal (that is, non-lawyer) person simply say ‘these structures’ or ‘structures like this’?

Formulations like ‘we never received such’ are, in Bryan Garner’s words, ‘barbarous-sounding’. Thus to be avoided.

And then there is the dreaded phrase, ‘as such’. Dreaded (by me, anyway) because it’s so often misused as mere filler, rather than as a link to antecedent material. Correctly used, it means ‘in the capacity just specified’.

Here is a nice little explanation from Judith Fischer, Word Aficionado (great job title) at the Louis D. Brandeis School of Law in Louisville, Kentucky:

The phrase as such is sometimes misused as an all-purpose (but grammatically incorrect) transitional phrase. Such is a pronoun that must have an identifiable antecedent. If it doesn’t have one, its use is incorrect.

Example 1 (correct):

She is the board president. As such, she is responsible for scheduling the meetings.

Explanation: Here, the antecedent of such is president. It can replace such: She is the board president. As president, she is responsible for scheduling the meetings.

Example 2 (incorrect):

Congress intended to provide an exhaustive list of examples, and it did not mention websites. As such, the statute does not cover websites.

Explanation: Such has no antecedent here; it cannot be replaced with list or any other word in the first sentence. The writer of example 2 incorrectly used as such as a generic transitional phrase. The word therefore would be a better choice.

The following examples illustrate the above points.

Example 3

A plaintiff must prove damages in order to recover, but Smith has not done so here. As such, she has no claim.

Example 4

This is a question of law. As such, it is subject to de novo review.

Explanation: Example 3 is incorrect, because such has no antecedent. Replace as such with therefore. But in Example 4, question of law can replace such, so the sentence is grammatically correct.

Advice: If you are in doubt about whether as such is correct, you may want to choose other phrasing. The transitional terms therefore, thus, and as a result are often suitable replacements for an incorrect as such.

All three – said, same and such – are useless lawyerisms, even when correctly deployed. Avoid them (even when you can use them properly).

Up next: split infinitives; or, Star Trek, you have a lot to answer for

Neil Guthrie (@guthrieneil)

 

Today’s tip is to double check the way you are noting up decisions. Taking a few extra minutes to cross check your results will really strengthen your research!

When we’re noting up a decision, typically we want to know if a) the decision has been appealed (i.e. history), and b) if subsequent decisions have discussed it (i.e. citing references). The most effective way to do this is to enter the decision citation into the note up field on Westlaw or LexisNexis Quicklaw. There are two nuances to this process that I want to highlight to ensure you always get the most comprehensive note up results.

  1. Use both LexisNexis Quicklaw and Westlaw to note up the same citation. While we rarely see one of these sources miss a subsequent appeal of a decision, it’s common that the citing references will differ slightly. This isn’t a deal breaker on every occasion but there’s nothing worse than missing a key citing reference because you didn’t take the extra 5 minutes to cross check your note up.
    Also worth noting is that occasionally either QL or WL will have a slightly deeper case history for a decision. For example, noting up the Supreme Court of Canada decision Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 on QL reveals a case history dating back to 2003. However, the same note up on WL shows the litigation commencing  much later in 2011. A close reading of that 2011 decision on WL would have indicated to the reader that indeed prior litigation did exist. However, if the researcher takes the WL note up at face value, without cross checking against a second source, an incomplete picture of the litigation would emerge.
  2. If you’re doing a deep dive on a case or topic, note up each subsequent decision in a case history separately. QL & WL will (quite properly) only show you the citing references for a trial decision when you note up that trial decision. If you note up a subsequent appeal decision, you will only be shown citing references for that appeal decision, not citing references for the prior trial decision.
    In the same vein, but possibly for different reasons, QL & WL may show you different case histories depending on whether you note up the trial decision or a subsequent appeal decision. For example, noting up the Tsilhqot’in Supreme Court of Canada decision (2014 SCC 44) on QL reveals a concise case history of a 2007 trial decision and a 2012 appeal decision. However, if you also note up either of the 2007 or 2012 decisions on QL, you will see an extensive case history including 30+ procedural decisions dating back to 1999!

Have you ever come across quirks or discrepancies when you note up cases? Chime in with a comment below to share your experience!

[Today’s tip echoes the sentiments in Shaunna Mireau’s excellent tip from 2013 where she also recommended using two sources when noting up. Thank you Shaunna!]

 

Commonly misused.

First, as a conjunction, which it isn’t:

The Outside Directors and Officers Liability policy held by the firm on your behalf is set to expire on July 30, 2015, however your assistance is required in advance.

Don’t do this. It’s a bad run-on sentence, and just replacing the second comma with a semi-colon doesn’t fix it.

Segue to second misuse: at the beginning of a sentence (or after a semi-colon):

 However, Gross Negligence or Wilful Misconduct does not include…

Perhaps not incorrect, but inelegant. Doesn’t that initial however somehow have a Valley Girl’s rising intonation to it? Not quite what you want in your client piece (or your contract, for that matter).

‘However’, properly used, is what is called a post-positive; it needs to rely on a previous statement, like so:

Mention was made, however, of a continued intention to implement…

Be careful, however, not to place it too early. It would be a bit weird to phrase that last example as ‘Mention, however, was made …’

Next writing tip: said, same, such

Neil Guthrie (@guthrieneil)