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The proof is in the pudding
This kind of makes sense, perhaps if you grew up in a culture where it is common to put a coin or other prize in a festive dessert (like the English at Christmas or the French on the jour des Rois).

But that isn’t the origin of the phrase. In its full, correct form, it’s the proof of the pudding is in the eating.

In other words, you don’t know what the thing is going to taste like until you actually sample it. Also applied metaphorically to any situation or thing that needs to be tested before you can say it worked.

For all intensive purposes
A friend suggested I include this, but I didn’t think people actually said it – until I heard it recently at a meeting. Cringe.

A malapropism for for all intents and purposes, of course.

This begs the question
Often used by someone who wants to say, ‘This raises another issue …’ – but it’s not quite what the phrase means.

To trot out some Latin (never to be used again), the original expression is petitio principii, a rhetorical term for a statement containing circular reasoning.

That is, a statement that offers, as proof of its truth, another statement that itself requires proof: for example, ‘God is great because He is the Supreme Being.’

Sooner than later
This is now frequently heard (thank you, Drake). While it does make some sense, it lacks the elegance and completeness of thought of the original phrasing: sooner rather than later.

Is confusion with sooner or later at work?

I could care less
We’ve had this one before: see Accentuating the negative.

Pedants and other word nerds love to criticise I could care less, when it’s used to express lack of interest in something.

If you think about it, it actually means you do care about whatever it is, because it would be possible to care to a lesser degree. You should say you couldn’t care less if you don’t care at all.

The devil is in the details
Misused if you take the view that it’s a later variant of the original God is in the details.

They both mean the same thing: you cannot fully understand or appreciate something unless you look at the inner workings, the fine print, the subtleties. In the one version, those details will send you to perdition if overlooked; in the other, they are sublime.

Often attributed to the architect Ludwig Mies van der Rohe (1886-1969), but probably older.

Out of pocket
I didn’t realise people misused this until I went to a meeting at an accounting firm (where management-consulting-speak is much in evidence).

The person at the meeting used it to mean ‘unavailable, out of the office, out of the picture, inaccessible’. What it actually means is to have disbursed money from one’s actual or metaphorical pocket: I am out of pocket by about 20 bucks because I paid for everyone’s coffee.

Hell hath no fury
Completed by most with like a woman scorned, but this is a misquotation. The original (from William Congreve’s Mourning Bride (1697)):

Heav’n has no Rage like Love to Hatred turn’d,

Nor Hell a Fury like a Woman scorn’d.

But that brings us to a more important point. The ‘scorned woman’ business is more than a bit sexist, and most of the other phrases in today’s list (with the possible exception of I couldn’t care less) are decidedly shopworn.

You’d be better to avoid hackneyed expressions and tired old proverbs, in favour of wording that is direct and original.

Next week: helpful (but unreliable) software tools

Neil Guthrie (@guthrieneil)

 

HeinOnline is a popular full-text journal database available in the Law Society Library’s Members’ Section. Your firm’s library may also have a subscription.

Did you know that HeinOnline has an excellent blog?  Here are some recent research tips from their blog:

We encourage you to consider subscribing to HeinOnline’s blog!

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

 

A short primer on what is called ‘point first’ writing.

You might be tempted to keep your reader in suspense about your conclusion or even the very subject of your blog post or client update, but that would be a mistake – you aren’t aiming to write a mystery novel or a cliff-hanging thriller.

Like most people, your client is busy and has a short attention span – so get to the point.

Point-first writing is also effective in memos, factums and letters.

Start with your conclusion and then explain how you got there. Begin by expressing the general rule, and then explain the exceptions. Open with the general, then give the specifics.

This will tell the reader what your piece is about, up front. He or she can then decide to read on, in order to get the details or the nuances. The reader can also decide to come back to your piece later (or not at all).

A clear sense of direction right from the opening line guides the reader: the last thing you want to do is force the reader to ask, ‘What’s this all about and where is it going?’

It’s also helpful to wrap up at the end with a restatement of your general point, to make sure the reader hasn’t lost the plot in the mean time.

It’s hard to improve on what Justice Laskin of the Ontario Court of Appeal has to say in Forget the Wind-up and Make the Pitch:

Of all of my suggestions, I consider point-first writing the most important. Point first writing, more than anything else, will improve the clarity and persuasive of your writing.

State your point or proposition before you develop or discuss it. Do not write your factum like a mystery novel in which the conclusion is revealed only in the final paragraph, if at all. In other words, give the context before discussing the details. Indeed, point first writing puts into practice the principle of context before details. Point first writing should be used throughout your factum, both in the facts part and in the law part, and within those parts, in every section and in every paragraph. Whenever you are about to dump detail on the reader, give the reader the point of the detail first.

We see far too many factums that contain long meandering paragraphs, in which the point of each paragraph is never stated, or almost as bad, is stated three paragraphs later. This is not reader-friendly advocacy. You can fix this problem in these ways. At the beginning of the paragraph, tell the reader what topic or idea you are going to discuss in the rest of the paragraph. Try to restrict each paragraph to one main idea or topic. Then, in the first sentence or two of each paragraph, articulate the point of the paragraph, usually your conclusion or submission on the issue. The remainder of the paragraph will discuss the submission, elaborate on it, support it, or qualify it. This is point first writing.

Unfortunately, too many factums contain either point-last writing or no-point-at-all-writing.

Equally applicable to other kinds of legal writing.

To recapitulate: point first; explain; conclude.

Next time: phrases we love to misuse

Neil Guthrie (@guthrieneil)

 

Searches that look for all variations of a word can be helpful, but sometimes you need to search for a word or phrase exactly as spelled.

How you do this differs from database to database. In CanLII, use EXACT( ) around the word you are searching for, e.g. EXACT(AIDS). CanLII usually searches for variants of the word, but using EXACT will force it to search for exactly what you have specified.

Quicklaw and WestlawNext Canada both default to searching for both the singular and plural of a search term, rather than all the variants; this means you won’t get as many false hits as on CanLII. However, if you do want to search for an exact term, use singular ( ) or plural ( ) in Quicklaw (e.g. plural (AID) for AIDS) and use #term in WestlawNext (e.g. #AIDS). In Lexis Advance just use quotation marks (e.g. “AIDS”).

Susannah Tredwell

 

With pronouns, that is.

A pronoun is a word that stands for a noun. Example: ‘The guy [noun] I was talking to is a third-year associate; he [pronoun] works in the corporate department’.

That and who
These pronouns have distinct uses: that refers to things and who to people.

So don’t write this: ‘Thanks to all that came to the event’. It’s ‘all who came to the event’ (unless they were robots).

An entity is an it
Not a they. Thus, ‘The bank was subject to a class action alleging that it had overcharged its customers for foreign-exchange transactions’.

They
You may have read that the ‘singular they’ is now a thing. It’s a thing, all right, but it’s sloppy and incorrect (unless you’re referring to a specific transperson who prefers to be called they; that’s cool).

They must otherwise always refer to two or more persons or things. Where there is only one, and the sex of the person is unknown, logic and grammar demand he or she – or else some gender-neutral but grammatically sound construction.

For example: ‘The company is seeking a new marketing director. Anyone interested in applying should submit his or her [OR JUST an] application by Friday and make himself or herself [OR JUST become, with no pronoun] familiar with the company and its competitors’.

Whose
This is what’s called a  relative pronoun, which tells us more about the noun it relates to (‘a lawyer whose time has come’) or asks a question about it (‘Whose book is this?’).

Ideally, whose should be used only in reference to a person, not a thing; of which is the logical construction for the inanimate. So, ‘the Securities Act, the purpose of which is to regulate …’ rather than ‘the Securities Act, whose purpose is to regulate …’

That can lead, however, to artificial and clumsy sentences: Fowler’s example in Modern English Usage is ‘The civilians managed to retain their practice in Courts the jurisdiction of which was not based on the Common Law’, which he says could usefully (and perfectly correctly) be changed to ‘whose jurisdiction’ (I’d also take the capitals off ‘Courts’ and ‘Common Law’, which are wholly unnecessary).

So if you haven’t always been using of which for the inanimate, you can relax a bit – but don’t get too casual.

Next: get to the point

Neil Guthrie (@guthrieneil)

 

Did you know that the Canadian Bar Association publishes toolkits in multiple practice areas? Today I want to tell you in particular about the Child Rights Toolkit that was launched just May 11 of this year.

This toolkit describes its four main parts as:

Fundamentals – provides the fundamental framework of child rights including where they come from, what they are, who is responsible and the status of child rights in Canada.

The System: Cross-Cutting Themes – outlines available systemic child rights supports and tools and in particular independent human rights institutions and child rights impact assessments.

The Child: Cross-Cutting Themes – highlights subjects that may be applicable to the child or a group of children you work with that transcend all areas of the law, such as Charter rights, best interests of the child, child participation, legal representation and freedom from all forms of violence.

Legal Areas – provides four steps to implement a child rights based approach in practice as well as child rights information and law in specific legal domains such as child protection, family law, youth criminal justice, and immigration.

Each of these opens up an in-depth commentary with labyrinth links to international conventions, federal and provincial legislation, major case law, policy documents, and articles.

Three years in the making, and developed by a long list of content experts, CBA staff, and steering committee members, this toolkit is well worth a good look for anyone involved in the rights of children in Canada or internationally.

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

 

This is intended mostly for the baby-boomers out there.

If you’re writing a client piece, it’s often tempting to jazz things up with a reference to sports, popular music, TV or movies.

This can be effective, both in conveying an image and in making the writer look human (which isn’t always easy in legal writing). There are some pitfalls, however.

Those born before 1965 may have to come to the shocking realisation that there is a now a generation for whom The Beatles are just some old band their grandparents bore on about.

Trying to look hip can also backfire, as the current mayor of Toronto found out when he lauded Kanye West as a ‘proud product of our music industry’. Whatever his other foibles, the late Rob Ford probably wouldn’t have made the same mistake.

I know the day will come when my Advanced Legal Research and Writing class fails to recognise The Smiths. This is inevitable but regrettable, not only because they helped to define my late adolescence, but also because the band’s squabble over money is a such a nice illustration of basic principles of partnership law (see Joyce v Morrissey, (1998) All ER 556 (CA), and a rather different account of the facts in Morrissey’s Autobiography (2013)).

Sports references can be vivid, but also problematic. American writers make the mistake of assuming that the entire world loves baseball as much as they do. (The term ‘World Series’ appears to originate not from the sport’s purported global reach but from early sponsorship by the New York World newspaper.)

By the same token, Canadians may want to avoid too many hockey references if they have potential readers in Australia or Hong Kong – or Canadian readers who grew up in cultures in which the dominant sports aren’t hockey and (North American) football, but cricket or (what the rest of the world calls) football. Many Americans will not have played games that involve the offside rule, so using offside to describe improper behaviour may give rise to blank looks. Female readers may (but may not) be put off by sports analogies of any kind.

And we’ve all met that tiresome guy (and it is usually a guy) who can repeat whole episodes of Monty Python, Seinfeld, The Simpsons … Remember that not all who read your client piece will have seen the particular episode you find hilarious (or if they have, have found it hilarious).

It’s best to stick to references that everyone will get. No easy thing.

Next edition: let’s get personal

Neil Guthrie (@guthrieneil)

 

If you’re having difficulty finding the amendments made to an act by another act, make sure you’re consulting the original act rather than the consolidation. Consolidations generally omit amendments to other acts.

For example, the new British Columbia Societies Act made changes to a number of acts including the Business Corporations Act. If you wanted to see the text of those changes, you would need to look at the text of the Societies Act as it read initially rather than in its consolidated form.

Susannah Tredwell

 

Bi
H.W. Fowler refers in Modern English Usage to the ‘misshapen brood’ of bi– words that are used to describe the frequency of intervals: biannual, bi-monthly, bi-weekly and the like.

The problem with them is that they are ambiguous: bi-weekly, for example, can mean either twice a week or every two weeks. At least a biennial (like the Biennale art exhibition held in Venice) is always held every two years, not twice in one.

Careful drafters of contracts will obviously want to make things perfectly clear, especially when dealing with dates of payment obligations and the like. And even non-contractual writers may wish to avoid uncertainty.

There are some options to avoid the ambiguity of bi–. Semi-monthly is clearer than bi-monthly, if you want to say that something is to occur twice in any given month. But both words are what Fowler calls ‘ugly hybrids’. Fortnightly  is an option, if you’re OK with sounding very British. Or you could just say twice monthly, every two weeks or every other week. Fowler’s proposal to adopt half-monthly doesn’t appear to have gained much traction, but you could try it – and you wouldn’t be misunderstood.

Centuries
If you’re old enough, you’ll remember Canada’s centennial in 1967 and the bicentennial of US independence in 1976. In the UK, these would have been centenary (pronounced cen-TEEN-er-ee) and bicentenary (bye-cen-TEEN-er-ee).

When Toronto celebrated the 150th anniversary of its incorporation back in 1984, someone dredged up sesquicentennial, a word that doesn’t appear to be used all that much. It did engender a twee squirrel mascot called Seskwee (although it wasn’t black in colour like the characteristic Toronto rodent).

The federal government, wisely, did not try to figure out the Latinate term for the 125th anniversary of Confederation when that occurred in 1992. (The unwieldy quasquicentennial has been suggested.) Instead, the feds opted for Canada 125, universally called Canada one two five (perhaps a deliberate echo of the colloquial term for a case of beer). Canada 125 made up in clarity what it lacked in imagination – and, predictably, we are approaching what is officially being called Canada 150.

But perhaps we still have the dodransbicentennial, dodrabicentennial or possibly dequabicentennial  of Confederation to look forward to in 2042 – with Dodra or Dequa the beaver as mascot?

Millennial
Once every thousand years. Also, now, used to refer to the much-maligned generation that came of age around the dawn of the new millennium – although millennial  is often used for anyone born somewhere between the early 1980s and the early 2000s.

Note: spell millennial and millennium with two Ls and two Ns. Millennia (and centuries) begin in years ending in 1 (2001, not 2000), by the bye; there was no year 0.

Next: keep your cultural references current and universal

Neil Guthrie (@guthrieneil)

 

Did you know that the Canadian Bar Association (CBA) website provides a wealth of free practice resources?  We encourage you to check it out!

Here is a break down of the amazing resources provided by the CBA:

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