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Basis is, basically, bad. Why, you ask? It’s one of those words that lawyers love to use, but one that renders their prose flabby and verbose. Instead of on a temporary/permanent/daily/whatever basis, just write temporarily, permanently, daily etc. While adverbs are not a hallmark of vigorous prose, a single word is better than four.

A related word is based: Where are you based?, people ask; I’m based in Toronto. Doesn’t this sound affected? Why can’t it just be live? Perhaps based sounds more cosmopolitan and jet-setty (put another way, pretentious)?

More along the lines of basis are manner and fashion. Only a lawyer would ask for a memo to be delivered in a timely manner (promptly or even soon would be plainer and better). And in an orderly fashion? Please trim the fat and just say something like in order, neatly, regularly …

Neil Guthrie (@guthrieneil)

 

Counsel is an ancient term for one’s legal advisers as a body (The accused did not have the benefit of counsel when he was interrogated) or for a single legal adviser (Maria acted as counsel to the federal government, for which she was made Queen’s Counsel).

A judge will address a Canadian barrister as Counsel (if not by name); in the US, it would more usually be counselor (with a single American L).

The OED says counsel is ‘rarely’ pluralised; ‘should never be’, in my view (and Fowler’s), but I see it.

As a job title, legal counsel is a redundancy. Just counsel (although investment counsel might disagree).

In US firms, many (typically grey-haired) professionals are described as being of counsel – that is, still practising, but no longer a partner and too senior to be an associate. As a description, that’s fine – but as a job title it is not (How many Of Counsels does your firm have? Yuck.)

Counsel and council were historically to some extent interchangeable; over time, council came to mean a board or assembly and its members councillors (Privy Councillors, municipal councillors) – although the members of such a group could also be one’s counsellors if they offered advice, whether legal or general.

Thanks and a request

Since publishing Guthrie’s Guide to Better Legal Writing, I’ve received many comments and suggestions from readers. Thanks!

I’ve used a lot of them in these post-book blog posts, and I hope they’ll find their way into a second edition of the Guide (that’s a hint, Irwin Law!)

Until that time, I’d like to acknowledge these readers in particular: Matt Aleksic, Ari Blicker, Jim Frank, Matthew Helfand, Anne Marie Melvie, James Reed, Angela Swan, Douglas Tsoi and Lionel Tupman.

If there are things I haven’t covered that you’d like me to, drop me a line on Linkedin or at the e-mail address given in the front matter of my book. I also check the comments here at Slaw Tips.

Neil Guthrie (@guthrieneil)

 

One of the best headlines of 2018 was ‘Stormy Daniels’ Attorney Wants to Depose Donald Trump’. He’s not the only one …

Of course the CBC was using depose in its US legal sense, which is to examine a witness for the purposes of discovery or a later trial. Most Canadian non-lawyer readers would, however, have interpreted depose as overthrowing a bad king.

In Canada, we would not depose a witness or take a deposition – we would examine a witness for discovery.

Neil Guthrie (@guthrieneil)

 

Baked in
This is (regrettably) now used to mean something like integral.

Does it have its origin in that vacuous remark by the sometime MP Belinda Stronach about baking ‘a bigger economic pie’ (whatever that was intended to mean)? I don’t know, but please stop talking about things being baked in; you’re a lawyer, not a baker.

C Suite
This was once, I suppose, a fresh way to describe senior management at a company. It is now past its sell-by date.

Flip
Not as in flip your lid but rather flip me an e-mail.

I’ve never liked its suggestion of haste and lack of thought.

Just send (or maybe forward, although I’m not sure it’s that important to make the distinction).

Impactful
No, no, a thousand times no! Use something like forceful or effective instead.

Relatable
Not sure this is a term from the business world, but it’s certainly jargon.

It is used to mean ‘easy to relate to’ (as in My job as an actuary may not be very relatable, but I find it interesting) – so why not just say ‘easy to relate to’?

Relatable is better used to express, neutrally, the ability to be narrated (related), brought into relation with something else or to possess mutual relation.

Stakeholder
This one always makes me think of Dracula.

It’s terribly shopworn – although admittedly a less tired one-word synonym doesn’t come easily to mind.

Neil Guthrie (@guthrieneil)

 

I forget where we are in the series. Part 8? Anyway…

Avert/advert
One averts one’s gaze from something unpleasant; one adverts (turns one’s attention) to other matters. The two have been confused since the Middle Ages.

Forgone/foregone
My friend Ross Guberman has noted Warren Buffet’s confusion of these two words: the Sage of Omaha wrote to this followers that ‘Investing is an activity in which consumption today is foregone in an attempt to allow greater consumption at a later date’.

A nicely expressed observation, but for the error; Buffet means forgone (‘relinquished’, ‘given up’) not foregone (‘preceding’, as in foregone conclusions or foregoing reasons). Historically, though, the two spellings were more or less interchangeable.

Both have nice past tenses one ought to see more of: for(e)went.

Led/lead
The first is the past tense of the verb to lead (She led an expedition to the South Pole); the second, as a verb, is the infinitive form (to lead) or the present tense in the first or second person (I now lead the derivatives group at my firm or You lead and I follow).

Mistaken use of lead as the past tense of to lead is said to be one of the commonest errors on CVs: http://www.businessinsider.com/common-spelling-mistakes-resume-2017-11

Pedal/peddle
You pedal your bicycle; Donald Trump peddles more fake news than the so-called Fake News he decries.

Someone who pedals is a pedaller (if you’re American, pedaler); who peddles, a pedlar.

 Tenet/tenant
I’ve heard these confused, but I don’t think I’ve seen the crime in writing. Yet, anyway.

A tenet is a doctrine or principle; a tenant is a renter of property.

Neil Guthrie (@guthrieneil)

 

There are many reasons to pity Melania Trump (although maybe she knew what she was signing up for and got what she deserved – hard to say, really).

Mrs T got into some linguistic hot water with the slogan for her campaign for children’s health and happiness, launched in May 2018: Be Best.

As Tim Hill has pointed out in The Guardian, this doesn’t hold up to what he calls ‘the laws of English grammar’ (I’d soften that a bit and call them rules; English is more flexible than laws would suggest).

One can be good and one can be better, but one really ought to be the best, not just best. That said, it would be idiomatic (and correct) to say It would be best not to do that.

The origin of Melania’s little solecism? Her not always grammatically correct husband, perhaps. Or a desire to outdo, with a superlative, Michele Obama’s exhortation in 2016 for men to be better. Or possibly a staffer’s subtle mockery of the First Lady’s somewhat shaky command of English and its use of definite articles (which are foreign to her native Slovenian).

Not, by any means, the greatest failing of the reign of Trump, but worth noting.

Neil Guthrie (@guthrieneil)

 

Summons is one of those odd nouns that ends in –s in its singular form; so the plural is summonses.

Odder still is the use of summons as a verb, meaning to command someone’s appearance in a court of law by way of a summons. Verbs don’t typically end in –s either.

Not everyone is happy with this state of affairs: Glanville Williams wrote in Learning the Law, 11th ed. (1982) that ‘the horrible expression “summonsed for an offence” (turning the noun “summons” into a verb) has now become accepted usage, but “summoned” remains not only allowable but preferable’.

A little digging in the dictionary (Oxford, of course) shows, however, that summons is older than Williams suggests – if not entirely reputable.

The usage citations in OED go back as far as 1780, with a quotation from Martin Madan’s Thelyphthora: ‘A woman had but to summons her seducer before the judges’. Madan (1726-1790) was a barrister (and a clergyman), but a controversial one; Thelyphthora scandalised its readers in advocating polygamy as a remedy for the ‘female ruin’ brought about by what he called whoredom, fornication and adultery. Perhaps not the best authority, then?

Next in the citations comes a line from Dickens’s Nicholas Nickleby (1828), where the sadistic schoolmaster Whackford Squeers (oh, those Dickensian names!) ejaculates, ‘Say another word and I’ll summons you for having a broken winder’. The dialectical winder may suggest that summons, too, is non-standard.

And the final example is from the novels of Marie Corelli, a forerunner of Barbara Cartland and EL James (so not exactly an exemplar of great literature): ‘You can summons me … if you feel so inclined’ (God’s Good Man (1904)).

All in all, not an impeccable pedigree for the verb summons, but it isn’t as newfangled a word as Glanville Williams suggests. I agree, though, that to summon is the better way to go.

Neil Guthrie (@guthrieneil)

 

A very quick tip today: if you’re trying to print out a readable version of a web page, but the website doesn’t provide the content in a print friendly format, try using https://www.printfriendly.com to remove any extraneous information.

 

Let’s talk about Legal Information Institutes (LIIs). Every Canadian legal researcher knows about CanLII (I least we hope you do). But there is also LII (that’s the USA one), BaiLII (Britain and Ireland), AustLII (Australasia), AsianLII, HKLII (Hong Kong), PacLII (Pacific Islands), SAFLII (Southern Africa), WorldLII, and many others, all of which are part of the larger Access to Law Movement.

LIIs provide free access to current, primary law in their jurisdiction. But they do not always contain comprehensive collections of historic materials (in all cases, I assume, they are working on it). In the English-speaking world, the most earnest attempt to fill in the historical gaps is CommonLII, which covers the world of common law (assuming there is a high correlation between commonwealth countries and common law countries, that is).

Recently, CommonLII enhanced their historical vision with the Foundations of the Common Law Library (1215-1914). No, 1215 is not a typo. In addition to the Magna Carta, the site includes many obscure statutes from the thirteenth century and forward, including, for instance, the Treason Act of 1351.

The collection of English Reports goes back to 1220, but seems a bit patchy when compared to the statute law, as there are hundreds of cases tagged January 1220, but then nothing more until the year 1457. Despite being “reports,” many of these records are no more than what we would today call summaries or digests – an example from 1491:

Conusee. –A man had lands of ancient demesne in extent for debt, and they were recovered from him by the sufferance of the vouchee, whereby he was ousted ; in this case he shall be holpen here. Morton, Chancellor ; per Assent, Bryan, and Hussey, Justices (7 H. 7. 11 [1491-921).

It might require a historical legal scholar to determine in what way the debtor was “holpen” (helped) in this case, but it appears that people in 1491 got themselves into similar situations that many of us do in the 21st Century.

“Foundations” is perhaps an overused metaphor. Is the modern law really built upon these judgments, in the way that a courthouse is built upon concrete footings? In reviewing the above ruling and a few others, I am more inclined to think of them as the infancy of the common law. The law was smaller, simpler, and by appearances, more innocent. The modern law grows out of it, rather than resting upon it. In any event, to invoke yet another overused metaphor, this is the fresh spring that over time will become the mighty river that is the common law.

What else does this collection include? It’s a bit of a mixed bag. In the case of Canada, it includes only a link to the complete Supreme Court of Canada judgments on CanLII. For Australia, who led in the development of CommonLII, there are law report series for all provinces, each going back to the 19th Century or earlier. There are also collections for Uganda, Southern and Western Africa, Hong Kong, Burma, India, Pakistan, Sri Lanka, Jamaica, Bahamas, and ever other country in the Commonwealth with a significant collection of reported case law.

So the next time you see a citation for a very old British judgment, or one from any common law jurisdiction, or you just feel like exploring the cracks and fissures in the footings beneath modern jurisprudence, remember to revisit CommonLII.org and return to the Foundations.

[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]

 

 

A regrettably continuing series.

Core
Almost as bad as key (when used, like core, as an adjective meaning ‘principal’ or ‘main’). Both have a distinct whiff of the 1990s to them.

My gut
Please, no one wants to imagine what your digestive tract is doing – much less what it is telling you.

Next steps
For the love of pity, can we stop talking about these at the end of every meeting? It’s not as though we can take previous steps at that point.

Action items would not be an acceptable substitute; it’s another piece of jargon. Tasks would work just fine, no?

Pivotal
Why, all of a sudden, are events deemed important now said to be pivotal? Besides being tiresome by its ubiquity, the word betrays an inherent teleological fallacy in assuming the inevitability of whatever resulted from a supposedly pivotal moment. This is rarely the case.

Please just say something normal like important or significant instead of this over-used piece of nonsense.

Scalable
Like a mountain, a fish that needs cleaning or a tea-kettle if your water is hard?

Better: adaptable, extensible, flexible, variable.

 Serial entrepreneur
Couldn’t this suggest someone who has left behind a trail of business failures masquerading as success? (A certain slum landlord turned real estate developer, TV personality and politician comes to mind …)

Neil Guthrie (@guthrieneil)