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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)

 

At work we are frequently asked how to cite a source using the McGill Guide. While most questions are fairly easy (“how do I cite Delgamuukw?”) the McGill Guide doesn’t always have an answer, e.g. “how do I cite an unreported tribunal decision?” or “how do I cite a type of government document [that isn’t listed in McGill]?” 

It can be helpful to search CanLII (or other case law database) to see if the source we are trying to find a citation for has been already been referred to. If it has, we can just copy the citation (or copy and tweak the citation).  We do keep in mind that it is more important that the person reading the citation be able to find the material we’re referring to than the citation be in perfect McGill format.

Note that a number of courts specify a citation format that differs from the McGill Guide. They include:

Susannah Tredwell

 

Alternate/alternative

As a verb, alternate means ‘to succeed in alternation’ (The two speakers alternated in answering questions form the audience); as a noun, ‘a substitute (I can’t attend the conference, but we’re allowed to send an alternate); as an adjective, ‘occurring by turns’ (The cake consists of alternate layers of cake, whipped cream and fruit filling)

Alternative involves a choice between two options: An alternative choice to cake is fresh fruit.

Forceful/forcible

Forceful means ‘powerful, effective’; forcible is ‘using force or violence’.

The lawyer made a forceful plea for clemency on behalf of the accused; The complainant alleges that her treatment by the mall’s security guards amounted to forcible confinement.

 Militate/mitigate

The first is to ‘lend support, have force’; the second, to ‘alleviate, make less severe, moderate.

The totality of the circumstantial evidence militates in favour of a finding of guilt; The youth of the accused and her lack of a previous criminal record are mitigating factors that should be considered in sentencing her.

 Complex/complicated

These are interchangeable, both meaning (1) involved or intricate and (2) made up of different elements, compound.

We tend, I think, to say complex litigation but a complicated problem.

 Every one/everyone

Two words in the ‘each and every’ sense, one where you could substitute everybody.

I ate every one of the sandwiches BUT Everyone ate a sandwich.

In spite of/despite

Actually, no difference in meaning.

Despite (shortened from the earlier in despite of) perhaps sounds a little more old-fashioned?

Although or even though would also work.

Neil Guthrie (@guthrieneil)

 

Judicious use of repetition can be a very effective rhetorical device, especially in written and oral advocacy. Judicious use, mind you.

Winston Churchill made memorable use of repetition: We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills.

Lawyerly writing, on the other hand, tends to repeat things because the writer doesn’t want to allow an iota of uncertainty by substituting a pronoun like it or that, or a synonym – or because the writer hasn’t taken the time to edit.

Ask yourself, for example, whether you really need to repeat a defined term ad nauseam. You may in contractual drafting, for the sake of certainty, but in a case comment or client update the context may make things clear without dull duplication. If you’re careful, it or that can work just fine.

If you read your piece aloud, you will be more likely to spot the kind of repetition that makes your prose leaden rather than lively.

Neil Guthrie (@guthrieneil)

 

This doesn’t exactly count as legal research, but I periodically get asked for to confirm that a given person was the source of a quote. Most of the time, it’s fairly easy to track down, but in other cases, I end up using https://quoteinvestigator.com. It’s a wonderful resource for those situations where the quote you’ve been given might have been said by a number of different people and not in those precise words. Note that you will need to scroll down a little bit before you find the search box on the left hand side.

Susannah Tredwell

 

Deck
Can you flip me the deck?

No, but I’ll happily send you the slides.

Page-flip
When people talk about doing a page-flip through a document, it always make me think it will be a superficial job.

Let’s be less casual, more thorough and less jargon-y: read, review or go through that document.

Skill up
Using skill as a verb is unobjectionable in constructions involving its past participle, skilled: Nancy is a skilled practitioner of municipal law.

But that’s really the only verb form you should be using. Don’t skill up; instead, be trained, get training, learn skills.

Time-frame
This can usually be avoided by merely using some formulation with time or when.

Not What’s your time-frame? but simply When do you need it? Or perhaps What’s your timing? Instead of within this time-frame, just during this period (or time).

Touch base
Apparently this derives from baseball.

It is used in business English to mean something along the lines of ‘make brief contact with someone, in order to gauge a reaction or just to say hi’.

Useful as shorthand for that, but definitely a business cliché. Try to avoid.

And it now has a NSFW definition you may not wish to invoke.

Neil Guthrie (@guthrieneil)