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All Our Research Tips

wordsthatdont

Next: confusing pairs, part 1

Neil Guthrie (@guthrieneil)

 

Here’s a tip I always mention when I’m introducing students to the legal research process: you will save time if you start by consulting the leading secondary sources on your topic, rather than going straight to the legislation or case law.

Ludmila B. Herbst, Q.C., wrote the following about the importance of starting with secondary sources in her 2006 CLE BC course paper “Effective Legal Research”:

A vast array of material is available in which authors (both learned and not so learned) have assembled and synthesized the case law and statutory materials applicable to particular issues. Make use of these where possible. Both the commentary and the footnotes may direct you to applicable case law, legislation and other secondary sources and may suggest analogous areas of law to research. In addition, secondary sources set out principles on which your answer may ultimately need to be based if primary authority cannot be located.

But where to start when you’re unfamiliar with the the leading texts? CanLII’s LegalResearch.org (formerly Cathie Best’s The Best Guide to Canadian Legal Research) advises researchers to start with a library catalogue:

As you gain experience, you will become familiar with the leading texts in various areas. If you do not know of a good text on the subject you are researching, the traditional approach is to conduct a keyword search in the library catalogue.

Not all library catalogues will cover all topics though, and if you’re just starting out it’s difficult to know which source is considered to be the most authoritative on a given topic. Fortunately, LegalResearch.org has gone through the work of creating lists of suggested leading texts. And if you need to dig a little deeper into your topic, use the checklist below to ensure you haven’t missed a thing!

This checklist, which was inspired by LegalResearch.org’s more exhaustive version, can also be downloaded as a Word doc here. You are welcome to edit it and repurpose it.

  • Encyclopedias
    • Canadian Encyclopedic Digest (CED) on Westlaw or in print
    • Halsbury’s Laws of Canada on LexisNexis Quicklaw or in print
  • Leading texts
    • Check your library’s catalogue, which will include both print books and ebooks
    • Suggested textbooks from CanLII’s LegalResearch.org
    • Suggested textbooks from Legaltree.ca. Use the topics down the left side of the page to navigate.
    • “Selected Secondary Sources” from the back pages of each Halsbury’s volume
    • Research guides from other law libraries. Bora Laskin Law Library currently offers the strongest lists of suggested texts.
    • “Selective Topical Bibliography” from The Practical Guide to Canadian Legal Research by Nancy McCormack. This starts on page 503 of the 2015 ed.
  • Journals and seminar papers, which may be useful when encyclopedias and leading texts are outdated or don’t provide enough detail about your jurisdiction or topic.
    • Local CLE resources, such as BC’s CLE Online course materials
    • Journals on HeinOnline
    • Journals on Westlaw
    • Journals on LexisNexis Quicklaw
    • Articles found via Google Scholar
    • Local specialized indexes, such as Courthouse Libraries BC’s BC Legal Literature Index
  • Memorandums and factums on the same topic
    • Your organization’s internal knowledge management database
    • Prior advice from the same legal file
    • Documents from colleagues who have worked in the area before

Bronwyn Guiton (@BronwynMaye)

 

You’ve drafted a client piece – now what?

Heed the words of Samuel Johnson:  ‘What is written without effort is generally read without pleasure.’

In other words, go back and edit; your text could always use some polishing.

Here are some specific tips.

  • sleep on it – you will spot things the next morning that were not apparent the night before, especially if the midnight oil was burning (typos, spelling and grammar errors, stylistic things)
  • get a second opinion – this will help with correctness, readability, errors you just aren’t seeing because you’re too familiar with your text (even after sleeping on it)
  • translate – is it in plain English that a businessperson would understand or Latinate, jargon-ridden legalese? if it’s in the latter, you need to change that
  • watch for repetition – is there a way to avoid using the same word or phrase excessively, but without making it look as though you are straining to find alternatives?
  • check the flow – do the paragraphs or sections follow each other logically, with nice transitions? or do you need some headings to impose order?
  • visual appeal – can you break up the text? (shorter paragraphs, headings, bullet points, graphics)
  • wield the axe – remember Blaise Pascal’s famous line: ‘I would have made this shorter, but did not have the time’ (or as the kids now say, ‘TL; DR’)
  • paranoia check – have you said anything about a client, or about an issue that a client might object to? had the piece vetted for correctness? checked names, titles, facts, quotations and citations (if any)?
  • print it off – proof-reading is more effective from a hard copy than on the screen
  • read it aloud – this will reveal incoherencies, overly long sentences, convoluted phrasing and clunky style in a way that reading silently to yourself will not
  • read it backwards – an old proof-reading technique; effective because it counteracts your brain’s tendency to make your eyes gloss over errors
  • don’t rely on spell-check – it misses things and makes silent corrections (tortuous appears in a million legal documents where tortious was intended; form for from is another frequently missed error)*
  • make sure you proof-read everything – including the title, headings and author information (errors can occur where you don’t think to look for them, and it’s embarrassing to have an obvious mistake in the first things people look at (like your name))
  • sleep on it again
  • run it by a second pair of eyes for final review

Next time: words that don’t mean what you think they do

Neil Guthrie (@guthrieneil)

 

Although most acts have a definitions section, usually at the beginning of the act, it is logistically impossible for an act to define all the words and terms it uses. If you are trying to find the meaning of a term that isn’t defined in an act, check that jurisdiction’s Interpretation Act. Definitions of terms that are used by multiple acts are quite often found in this act. For example, terms defined in the federal Interpretation Act include “herein”, “holiday” and “oath”. You will find Interpretation Acts in federal and all provincial legislation.

Interpretation acts are also useful when it comes to statutory interpretation. For example section 11 of the federal Interpretation Act distinguishes between the meaning of “shall” and the meaning of “may”.

 

 Since you asked…

Baffled on Bay Street wonders: What’s with ‘Esquire’? Does it have some special meaning in law?

In mediaeval England, an esquire was one rank above a gentleman and one below a knight; hence the variant ‘squire’ for a trainee knight.

While the precise class of chaps eligible to be an esquire is a matter of intense historical controversy, it seems that you had to be the younger son of a nobleman, the son or grandson of a knight, or an office-holder (possibly including a barrister-at-law). By the 18th century, ‘Esquire’ came to be used as a polite substitute for ‘Mister’ on an envelope (and the older use of  ‘Gent.’ after a name faded away). This usage persists in the UK and more traditional parts of the Commonwealth.

Americans used to use ‘Esquire’ in the same way, but by about (your humble scribe is guessing here) the 1940s, it was replaced by just plain ‘Mister’ on envelopes, except in diplomatic and legal circles (conservative, those). By about the 1970s, only lawyers were using it. As a result, ‘Esquire’ came to be viewed as synonymous with ‘attorney’ – and second-wave feminists who entered the legal profession wanted to be able to use it, like their male peers. To someone in the UK today, however, ‘Susan Jones, Esq.’ looks as bizarre as ‘Ms Neil Guthrie’ would.

Confused in Calgary writes: Can I begin a sentence with ‘And’ or ‘But’?

Contrary to what Mrs Snelgrove told you in grade 7, yes. But do it sparingly, for effect.

You can also start a sentence with ‘Because’, in constructions like this: ‘Because I forgot to set my alarm, I was late for the client meeting at 8.30.’

Exasperated in Edmonton enquires: How many spaces after the period at the end of a sentence? One or two?

Exasperated, you’ve got time on your hands if you’re fussing about this!

In the days of the Smith-Corona manual typewriter, two spaces were de rigueur. In the digital age, one seems to be the norm.

Troubled in Toronto asks: What’s the difference between ‘farther’ and ‘further’¸ and ‘less’ and ‘fewer’?

Less and fewer are straightforward (although frequently confused). Use less for things you can measure (money, time, substances), fewer for things you can count (people, objects).

Example: There are fewer people around in the summer, so there are fewer cars downtown and less traffic.

NEVER say less people.

The precise difference between farther and further is elusive, and the two words can be (and are) used more or less interchangeably. The consensus among language mavens is that farther is best used for actual distances, further where distance is conceptual or not part of the equation at all.

Examples: Edmonton is farther from Toronto than Calgary BUT Don’t go any further – I’ve had enough of your silliness.

And as for Vexed in Vancouver: I sometimes see in e-mails that that someone is going to ‘revert’ to me. What’s up with this?

This expression appears to have originated in business and legal circles in India in the 1970s, spreading from there to the UK and Australia. It’s a bit weird, because revert normally means to return to an original shape or form (The werewolf reverted to human form once the full moon had passed).

Your humble scribe would avoid the word in business correspondence (unless you mean it in the werewolf sense), and just say reply or answer (get back to you is a bit colloquial, methinks). Revert just seems fancy for the sake of being fancy, which is never desirable.

Next: the importance of editing and proof-reading

Neil Guthrie (@guthrieneil)

 

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: