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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)

 

Deep links are links that take you directly to content within a website or database, rather than to the website’s home page. The advantage of deep links is that they allow you to send users directly to content of interest, rather than having to navigate through the menu system. An example of a deep link is http://www.lexisnexis.com/ca/legal/api/version1/toc?csi=386929 which takes you to a volume of Halsbury’s Laws of Canada on Quicklaw.

It is helpful to use deep links in the library catalogue as well as in online research guides. They can also be included in research reports (so that the end user can more easily find the materials being referred to) or when recommending specific resources online.

Keep in mind that not all database services allow you to create deep links to materials, and some make the process easier than others do. Some services have an icon or link that allows you to create deep links automatically; others may require you to derive a deep link by editing the URL.

One final tip: before sending a deep link off to another user, it is good practice to test it in another browser to ensure there are no problems with the link.

 

This was my grade-10 English teacher’s expression for useless verbiage. Other ways to say it: throat-clearing, filler, circumlocution, BS.

Examples (and what to say instead):

a number of   some, many
as a means of   to
as prescribed by   in, under
as to whether    if, whether
at the present time   now
by means of   by, with
concerning   about, on [and don’t misuse ‘concerning’ for ‘of concern’, ‘disturbing’, ‘troubling’]
due to the fact that   since, because
during the time that   during, while
for a/the period of   for
have an adverse effect on   hurt, set back, impair
including but not limited to        including [the ‘but not limited to’ bit doesn’t actually add anything, does it?]
in an orderly fashion   [I can’t think why you’d want to say this in the first place]
in a timely manner   promptly, on time
in accordance with   by, following, under
in addition   also, too
in order for   for
in order that   so
in order to   to
in other words   [remove and rephrase whatever you said before so you don’t then have to clarify it]
in/with regard to   about, on
in relation to   about, to, with
in sum   [a lawyerism that people picked up in 1L; lose it and just summarise/conclude]
in the event that   if
in the process of   [leave it out and don’t replace; it adds nothing]
in view of   because, since
it is interesting to note that   [if you have to say this, it probably isn’t interesting; just leave it out]
pertaining to   about, of, on
please find enclosed/attached   I enclose/attach OR the [whatever it is] is enclosed/attached [even in the days of snail mail, was it really ever a challenge to locate the extra thing in the envelope with the letter? be gone, nineteenth-century nonsense!]
provides guidance to   guides
pursuant to        under, according to
put another way   [see ‘in other words’; you might also want to rethink ‘for greater certainty’, even in contractual drafting]
regarding   about, on
relative to   about, on
set forth in   in
the fact that   [omit and rephrase, so that ‘The fact that the borrower defaulted …’ becomes something like ‘The borrower’s default …’]
the question as to whether   if, whether, the question whether
until such time as   until
with reference to   about
with respect to   about
with the exception of   except

De-clutter your prose by eliminating verbose (and hackneyed) words and phrases.

Next: however

Neil Guthrie (@guthrieneil)

 

I recently sat down with CanLII’s Manager of Content and Partnerships, Sarah Sutherland, to learn what’s new and to ask some common CanLII questions I get from my own users — chief among them being “Are there any decisions I should know about that aren’t on CanLII?”

There’s no one single tip here today, but in the spirit of SlawTips, this is a short read that we hope will be informative and help you work smarter!

Bronwyn Guiton (@BronwynMaye)

Q (Bronwyn Guiton): What sorts of decisions would readers be surprised to learn aren’t actually available on CanLII?

A (Sarah Sutherland): 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.

Q: Are there areas of CanLII’s decisions collections that readers might be surprised to learn about the depth or breadth of?

A: We have content going back to the 19th century and are regularly adding more historical content.

Q: CanLII just added Federal and Quebec annual statutes to the site. What do you see as the value added there?

A: This is content that people are already looking for on CanLII, so adding it makes the site more complete. When annual statutes are passed they are added to CanLII, but as the sections that amend other acts come into force they are removed from the acts they came from in the consolidated legislation collections and only appear in the amended acts. Adding annual statutes allows researchers to find this content more easily.

Q: These days, most barristers are comfortable submitting the CanLII PDF’s of decisions to court, but they still copy older decisions from print reporters. Do you see that changing at all as time goes on?

A: I think that as the legal profession generally gets more comfortable with electronic files and confident that others will be too, native electronic files will be more commonly used. Judges are in a strong position to influence this transition. In The Manufacturers Life Insurance Company v High Park Medical & Rehabilitation Centre Ltd, 2015 ONSC 5169, Justice Myers wrote “Scanning and emailing pdf copies of case law is one of the biggest wastes of the profession’s collective time.”

 

My thanks to Sarah Sutherland for answering these CanLII questions for SlawTips.

 

It’s astonishing how many people have trouble with personal pronouns.

Perhaps like Lorelei Lee in Gentlemen Prefer Blondes, they think it’s somehow inelegant to say me – so the heroine of that classic book says ‘A girl like I’. But (between you and me) that’s wrong: it should be ‘A girl like me’, of course.

Others, faced with the awful choice between I and me, opt for what they think is the safer ground of myself. This is less wrong (if that’s possible), but not ideal – and it leads to weird constructions like ‘Mohammed and myself went to the meeting’. Myself is best used reflexively (I asked myself) or for emphasis (I did it myself).

To refresh, I, you, he, she, we and they are subjects; me, you, him, her, us and them are objects.

Example: She did that to me not Her did that to I.

So, how to get it right every time? Five simple rules:

1. After a preposition

After at, between, from, in, of, on etc., the pronoun will always be an object (me, him, her, us, them NOT I, she, him, we, they) [you is easy – it’s both a subject and an object, so you’ll never get that one wrong].

So between you and me, it’s ‘a girl like me’.

2. Take out the extra person

When in doubt, take out the extra person.

If you think it might be ‘She invited Jacques and I to the meeting’, remove Jacques from the picture and you’re left with ‘She invited I to the meeting’, which obviously can’t be right.

3. Add missing words

Is it ‘she is older than him’?

No. What you’re saying is ‘she is older than he is‘, so it’s actually ‘older than he’ (although in colloquial speech, him  would be just about acceptable).

4. Subject is always ‘I’ (not ‘me’)

The subject of a sentence can never be me, him, her etc.

People routinely say ‘Mary and her went to the meeting’, but it’s wrong, wrong, wrong. Rule 2 will help you here too (‘her’ didn’t go, did she?).

5. ‘To be’ takes ‘I’ (technically)

If you’re a purist, the verb to be should always take I (subjective completion) not me (object).

This may sound a bit archaic in conversation, however, and your humble scribe won’t wince if you say ‘Hi, it’s me’. On the other hand, ‘It is I’ or ‘This is she’ can have a satisfyingly forbidding effect on cold callers who ask to speak to you by name.

To recapitulate:

  1. Preposition + me
  2. Take out the extra person
  3. Add the extra words
  4. Subject is always I not me
  5. To be takes I (except when it sounds fussy)

Neil Guthrie (@guthrieneil)

 

Summer students have just started at my firm. One of the things that we emphasize in training is that if they don’t understand what they have been asked to do, they need to go back to the lawyer and clarify the question. While it may be embarrassing to have to go back and ask, it’s far better than discovering that they’ve researched the wrong thing.

This principle doesn’t just apply to students. Library staff get asked questions that need to be clarified or elaborated on. Sometimes the person asking the question knows so much about the area, they assume everyone else does. Sometimes the problem is that the question is phrased too generally, so the resources we come up with aren’t relevant or specific enough. Sometimes the question is being asked by a student based on a question they have been asked by a lawyer, and crucial elements have been lost in translation. And sometimes the reason that we don’t understand the question is because the person who is asking the question doesn’t either. In those situations the process of clarifying the question often ends up answering the original question.