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Remanded back
I heard this on the CBC, and I’m hoping it hasn’t made its way into criminal lawyers’ writing: The suspect was remanded back into custody.

The re­- prefix means ‘back’, so it is just remanded (and usually in custody, sometimes to, but not into).

Similarly, not refer back – just refer.

Ditto revert etc.

The reason why
Lord Tennyson may be to blame for this one (or C.V. Wedgwood): ‘Theirs not to reason why, theirs but to do or to die’ (The Charge of the Light Brigade).

It’s a pretty awful poem, but it’s worse to say The reason why the defendant did this is…; it’s just The reason the defendant did this is…

And please, never the reason is because or, worse, the reason why is because (the latter something also heard on the CBC).

The reason is that … can work, however.

Still remain
If something remains, it’s still there – so still is a tautology.

Which is to say, unnecessary.

Neil Guthrie (@guthrieneil)

 

If you are unfamiliar with this writer, head to the nearest independent bookstore (Ben McNally would be an excellent choice in Toronto) and buy her unusual and compelling novels Speedboat (1976) and Pitch Dark (1983), both recently reissued under the New York Review of Books imprint.

What have they got to do with legal writing?

After completing her doctorate at the Sorbonne, Adler received a JD from Yale but never practised law.

Her training in law (and linguistics) must have prompted this perceptive observation of a lawyerly or that is more conjunctive than disjunctive: ‘And I’ve found, I think, the strongest “or” in language anywhere. It’s the lawyers’ phrase: as he then well knew or should have known. The strongest or.’

And she decries the overuse/misuse of literally and presently in a passage on the ‘assault mode’ of cinema reviewers:

‘“Literally,” in every single case, meant figuratively; that is, not literally. This film will literally grab you by the throat. This book will literally knock you out of your chair. “Presently” always meant not soon but now.’

Neil Guthrie (@guthrieneil)

 

The question came up recently on the CALL listserv about how to cite online looseleafs, specifically those available on Thomson Reuters’ ProView platform.

The McGill Guide suggests citing print looseleafs as follows:

Author, Title (publication information) (Loose-leaf revision, supplement number or date), pinpoint.

However the McGill Guide does not address the question of how to cite a looseleaf that’s been accessed online. Extrapolating from section 6.2.1 of the McGill Guide (“Books”), it makes sense to add the online source at the end, e.g.

Author, Title (publication information) (Loose-leaf revision, supplement number or date), pinpoint (WL Can).

Note that Appendix E of the McGill Guide lists a number of abbreviations for online services, but not ones for Lexis Advance or ProView. 

Many thanks to Esther Bélanger of Fasken Martineau DuMoulin who provided the following information:

[Thomson Reuters] are recommending this form :

Donald MacOdrum, Fox on the Canadian law of patents (Consulted on 29 August 2019), (Toronto: Thomson Reuters), ch 14 at 10 (Thomson Reuters eLooseleaf Library).

It is probably more practical to follow the McGill Guide’s lead and cite the revision number/date rather than the date it was consulted.

Esther also noted that Thomson Reuters sensibly recommends “looseleaf titles, whether in print or electronically … should be cited to chapter and section number/heading, not to page or paragraph numbers.”

Susannah Tredwell

 

Broach/brooch
You broach a subject when you raise it with someone: The partner
broached the issue of missed deadlines with the hapless associate
.

A brooch is a piece of jewellery typically pinned to the upper breast: The Queen always wears a large diamond brooch on her coat or dress, but her ancestor James I preferred to pin one to his hat.

The two words are pronounced in the same way (like broach).

Mortgagee/mortgagor
This shouldn’t need to be mentioned, but you’d be surprised – shocked, really – by the number of lawyers who have said to me that they sometimes get confused about which is which.

One gives a mortgage to a lender, perhaps to the point of being mortgaged to the hilt. So, if you like, think of the mortgagee as the donee in this scenario.

That is, the bank or some other lender who takes security for the loan (although this person is the giver (donor) rather than the recipient of credit).

The mortgagor, then, is the giver of the mortgage (but the taker of credit).

Shined/shone
They mean the same thing, but people get confused about which one to use.

The verb shine has two forms in the past, shined and shone.

Research yields a general rule of thumb: shined tends to be used where the verb has an object (I shined my shoes but The moon shone brightly).

This isn’t invariably the case. It is more natural to say She shone her flashlight into the dark cellar or The inquiry shone a light into the dark world of cryptocurrency.

I am led to believe that Americans pronounce shone to rhyme with tone not gone. Shudder.

Neil Guthrie (@guthrieneil)

 

Do you lend someone money or do you loan it?

You can do either, in fact. (The noun is always loan.)

The verb lend, in the sense of granting someone else temporary possession of something in the expectation of its eventual return, is an old one: Ælfric used it in his Grammar more than a thousand years ago.

Loan as a verb isn’t much more recent, going back at least as far as the early thirteenth century. In modern usage, however, the OED says it is ‘chiefly US’.

How we use the two verbs in this northern part of North America is, I think, idiomatic – with loan more frequent (but not universal) in a transactional setting.

Can you lend me ten bucks?

I will lend you the book, but please return it.

She lent me a hand when the going was tough.

The room doesn’t lend itself well to groups of more than ten.

Banks lend money at interest.

The finance company loans money at exorbitant rates.

The National Gallery loaned/lent the painting to the travelling exhibition.

Neil Guthrie (@guthrieneil)

 

This is one of those words with a weird function confined largely to the world of law.

The ordinary current meaning of deem, according to the OED is, essentially, to consider, think or judge (in a non-judicial way).

But lawyers have a special meaning, where deeming means treating A as if it were B and not A. Creating a legal fiction, in other words (and that doesn’t mean John Grisham).

This comes up in my teaching, where the law school will occasionally stick a deemed Wednesday in the calendar, in order to make up for an actual Wednesday sacrificed for some reason like a holiday or special event.

It also comes up a lot in statutory drafting, where all kinds of things are deemed to be other things for legal purposes: the word deemed occurs 4141 times in the Income Tax Act (Canada), for example.

Oddly, the OED’s other definitions of deem, while they involve judgment of some kind, don’t quite capture the ‘treating A as if it were B’ meaning that is familiar to lawyers.

One legislative drafter says that the ordinary ‘consider’ usage should be avoided: ‘Phrases like “if he deems fit” or “as he deems necessary” are objectionable as deviations from common speech’ (GC Thornton, Legislative Drafting, 2d ed (1979), 83-4, cited in Black’s Law Dictionary).

It appears that the Dictionary would think the legislative use of deem is actually the departure from ordinary usage – but intelligent people can disagree.

This division of opinion may cease to matter. Ruth Sullivan suggests that modern legal drafters have already ditched deem in the ‘consider’ sense and are starting to say is considered or just is when they wish to create legal fictions (Sullivan on the Construction of Statutes, 6th ed (Markham, Ont: LexisNexis Canada, 2014), at §4.105).

Neil Guthrie (@guthrieneil)

 

When you are trying to find a source that has been cited online, it can be very frustrating to discover that the link no longer works. If you are looking for a website cited in a Supreme Court of Canada judgment, you’ll be happy to know that the Office of the Registrar of the SCC has archived the content of the majority of the online sources cited by the Court between 1998 and 2016

For 2017 on, any online source that was cited in the “Authors Cited” section in SCC judgments has been captured and archived. When a judgment cites such a source, an “archived version” link is provided. You can see an example of this in J.W. v. Canada (Attorney General), 2019 SCC 20.

Susannah Tredwell

 

A certain orange person to the south of us uses these a lot (Sad!).

You would probably never see one in a contract, but you might in a factum – but there only rarely, and, one hopes, judiciously.

Over-use of the exclamation mark is a hallmark of the uneducated or unpractised writer, says Fowler.

Experienced writers will confine them to:

  • interjections (Damn! Heavens! Oh!)
  • exclamations with what or how (What a disaster! How awful!)
  • wishes (Convention be damned!)
  • ellipses and inversions expressing emotion (If only I could! Fat lot of good you are!)
  • apostrophes (You miserable swine!)

Resist the temptation to add an exclamation mark to a mere statement, question or even a command. Save it for a time when it really adds something.

Ross Guberman notes twenty-one instances of the exclamation mark in United States of America v AT&T Inc (DC Cir, 2018), where they variously convey:

  • ‘exasperation in a youthful vernacular’ (Please! Go figure!)
  • wonderment, sometimes in a sarcastic way (Small wonder!)
  • ‘judicial modesty’ (That is no easy assignment!)
  • ‘supreme certainty’ (I have concluded that the answer to that question is no!)
  • spin-control (But the temptation … should be resisted by all!)

Each of the AT&T examples could have been as effective with just a period, probably. Adding an exclamation mark may be an admission that your phrasing inadequately conveys the desired tone.

A useful place for the exclamation mark is e-mail, where tone is notoriously difficult to capture. An unadorned Thanks may appear terse, even grudging; add the flourish of an exclamation mark and you will seem more clearly enthusiastic.

In any event, keep this form of punctuation to a minimum; writing that is peppered with exclamation marks is exhausting for the reader. And you may come across like a teenager rather than seasoned counsel.

That US decision is 172 pages long, so may not be overdoing it with twenty-one exclamation marks. More than one in a tweet, however …

Neil Guthrie (@guthrieneil)

 

These pomposities can always be replaced by something simpler and clearer.

Inasmuch as is just a fancy (and archaic) way of saying seeing that, since or because.

In so far as (sometimes insofar as) means much the same thing, or to the extent that.

They add nothing to your prose except flab (as does to the extent that).

Rephrase.

Neil Guthrie (@guthrieneil)

 

The origins of this phrase are a little obscure, but appear to be from the exhortation of sports coaches or more senior people in the army for the players/troops to look up from whatever is distracting them from the game/drill/war. (Their mobile devices, perhaps?)

Be on the alert or on the qui vive, in other words. There may also originally have been an element of buck up! to it.

Fair enough. But at some point people in business and government started talking about giving their underlings a heads-up [note the hyphen for the noun] – to the point now where it has become one of the most tiresome clichés.

I cringe whenever some passive-aggressive person says, Just wanted to give you the heads-up …

The expression also causes spelling issues for people: either they omit the hyphen in forming the noun (a no-no) or they insert apostrophes in strange places.

To avoid orthographical anxiety – and to keep me from cringeing – please stop using this expression.

And on the subject of cringeing, it’s better to spell that with an e so the soft g is clearly preserved; otherwise, you might be tempted to pronounce it to rhyme with singing (compare singeing). Same goes for bingeing on Netflix.

Neil Guthrie (@guthrieneil)