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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)

 

In law and business, this now means an employee who snitches on bad practices by co-workers (especially the higher-ups) but who is protected from recrimination by legislative provisions like s 27 of the federal Digital Privacy Act and s 66.1 of the Competition Act, or, in the US, s 922 of Dodd-Frank.

Think Edward Snowden, but without the subsequent need to live as a fugitive.

All well and good (unless you’re Edward Snowden), but I’m weary of the word.

And it’s imprecise: in a sporting match, the whistle is blown not by a player, but by the referee – so by a neutral third party rather than someone in the scrum (or what have you). Or, if the word derives from policing, the blower of the whistle is a cop, not someone directly involved in the activity giving rise to the calling of a foul.

Whistleblower does have the advantage of sounding positive, in a way that alternatives like informant or informer probably do not (much less, snitch or rat).

And it’s certainly shorter than statutory formulations like ‘Any person who has reasonable grounds to believe that a person has contravened or intends to contravene a provision of …’

But it’s still shopworn.

Neil Guthrie (@guthrieneil)

 

Countless
If this word appears in your bio, please remove it immediately. (Search the website of a major Canadian law firm for the word and you’ll probably come across a silly example.)

It’s unlikely that Bob has authored countless case comments and articles. We could count them (if we wanted to).

And, while we’re at it, let’s change authored to written and admit that articling students did most of the work.

 Grab
This is frequently used in more casual e-mail correspondence (and in speech): Let’s grab lunch/drinks/coffee.

Isn’t it impolite to be grabby? Have or meet for would be nicer.

And I get very annoyed when the barista asks me, Can I grab your name? No, but you may have it.

Me thinks
One sees this occasionally as a jocular archaism.

Those familiar with Hamlet will know it should be one word, not two: Methinks the lady doth protest too much.

It would be nice to see the past tense methought now and then (Methought I was done for!)

No-one
This is seen, but it’s better to write no one, in part to prevent the inevitable drift from no-one to noone (which looks like an Elizabethan spelling of noon).

Neil Guthrie (@guthrieneil)

 

Slanted type like this, with a number of distinct uses.

Used in these posts to set off a word or phrase that is being discussed. Quotation marks would serve that purpose just as well, although things might look a bit cluttered and fussy.

More commonly, italics are used for emphasis. Go easy with emphasis of any kind: if everything is emphasised, the force is diminished.

In the old days of manual typewriters with only roman (non-italic) typeface, underlining stood in for italics. Underlining can still be used, especially where you’re quoting something that already contains italics but want to add your own editorial emphasis (indicate that in square brackets with something like underlining mine or underlining added).

Italics are also used to indicate foreign expressions. In these, the law abounds: ultra vires, sine die, cy-près, autrefois acquit, to mention but a few.

Two observations, though. First, you’re better off not (or perhaps that should be not) using dead languages at all if there is a good English equivalent. Secondly, after a certain point, foreign words and phrases become fully part of English and lose their italics. We don’t write etc.; it’s now naturalised and needs no italics.

In literary writing, there is a new movement to drop the italics for any ‘foreign’ word or expression, on the grounds that differentiating typefaces creates ‘a monolinguistic culture of othering’ that presupposes the primacy of English and fails to reflect the experience of bilingual and multilingual people: https://quartzy.qz.com/1310228/bilingual-authors-are-challenging-the-practice-of-italicizing-non-english-words/. That has yet to hit the law, however.

A final legal use of italics is in styles of cause, aka case names. Traditionally, these were rendered like this: Hadley v. Baxendale. The v for versus is NOT in italics because when you italicise something containing an element that already has italics, you convert that element to roman type. Because switching back and forth between typefaces was a bit of a pain, we now italicise everything and also drop the period after the v (both to the horror of traditionalists). By the bye, the traditional way to refer in speech to a case is Hadley AND Baxendale, not Hadley VEE Baxendale or even Hadley VERSUS Baxendale.

Neil Guthrie (@guthrieneil)

 

The Internet Archive Wayback Machine allows users to “capture a web page as it appears now for use as a trusted citation in the future”. I’ve mentioned it before since it can be a very useful tool to find information on a webpage that has subsequently changed or been removed.

You are not restricted to using it to access materials that other people have archived. If, in the course of your research, you identify a useful web page, you may want to consider checking if the page has already been archived by the Wayback Machine and—if it is not already there—adding the page. Adding a page is very easy: simply enter the URL into the form and click on “save page now”.

Once you’ve done this, you can use the URL generated by the Internet Archive (rather than the URL for the material you just archived) and you won’t have to worry about link rot.

Note that one drawback is that you can’t save a web page to the Internet Archive if the page is on a site that doesn’t allow crawlers.

Susannah Tredwell