advice you can use — short and to the point — every Tuesday, Wednesday & Thursday

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All Our Research Tips

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)

 

Administrator’s note: thanks to Wendy Reynolds, Manager, Accessibility, Records and Open Parliament at the Information Services Branch, Legislative Assembly of Ontario for this guest tip!

Libraries track reference questions for many reasons. Primarily, we capture information about transactions – who we did work for, how long it took, and how difficult it was. A simple spreadsheet or piece of paper on the ref desk will suffice for this most common kind of tracking.

Some libraries go beyond the transactional. My employer, for example, relies on an Oracle database to collect questions, triage work, and record the answers sent to clients. We do this because so many of the questions we get are complex, and re-using a similar or previous answer is a much more efficient way to proceed. We also rely on three different groups of subject-matter experts to answer questions, and we need a way to distribute tasks while ensuring that all of the elements of the question remain together.

I was asked recently to inquire of my CALL-eagues how they track reference transactions. The variety of responses was interesting, and share-worthy.

  • Several responding libraries use custom databases built in house.
  • Two libraries use helpdesk software, and one of the respondents commented that this is an option that is worth exploring.
  • Specialized web-based reference trackers also received a number of mentions. Quest, LibAnswers and Gimlet were all mentioned.

Before selecting a solution, think about how you plan to use the product. Is this going to be a knowledge repository, or are statistics the goal of your implementation? If you’re building a knowledge repository, make sure it has capacity for large attachments or long answers.

Don’t collect more data than you use – if you make people input information that they don’t then see in use, they’ll stop using the tool.

Wendy Reynolds
Manager, Accessibility, Records and Open Parliament
Information Services Branch, Legislative Assembly of Ontario

 

If you are carrying out due diligence on an individual or company, the BC Securities Commission has produced a very useful online resource on the subject called Conducting Background Research. The guide does note that there is “no set template for a good background search. … You will need to use your judgment for each research decision, including the choice of sources to search and research strategies to employ.”

Susannah Tredwell

 

In the first year of law school, students pick up many bad writing habits. Perhaps the chief of these is to use previously unfamiliar phrases that have a (specious) lawyerly appearance.

An example is at first blush, which is not commonly used outside the law; and because it’s used so much within it, it ought to be avoided as an over-used cliché. You could just write at first, without the blushing (‘This case seems, at first, to be uncomplicated …’)

On its face has a venerable legal pedigree (at least as far back as 1632, according to the OED), and referred originally to the words as they appeared on the face of a document – but, like the blushing business, it’s a worn-out expression that could happily be dropped.

If the previous two constructions are merely old and tired, the use of facially for on its face is recent, lazy and deplorable. I cross it out in student work-product, and wish I could do the same with the 408,000 occurrences in Canadian blog posts (according to Slaw’s Canadian Law Blogs Search Engine).

Neil Guthrie (@guthrieneil)

 

John Laskin, late of the Ontario Court of Appeal, suggests in his ‘Forget the Wind-up and Make the Pitch’, that although ‘this advice may cause mutiny among lawyers and judges’, you should avoid writing sentences containing ‘The fact that …’

It’s much more effective just to state the fact, rather than to state the fact that the fact is a fact. So, not ‘The fact that my client has accepted your offer ..’ but ‘My client’s acceptance of your offer …’ The latter is direct, clear, less wordy.

Similarly, eschew notwithstanding the fact that in favour of the plain English although, and the dreadful due to the fact that for good old because. As Laskin notes, The fact remains that can simply be omitted; it adds nothing but verbosity.

I’m not sure why The reality is … bothers me as much as it does, but it does. Like The fact remains…, it’s useless. Just state what the current state of affairs is, without the pointless preface. And, please, don’t ever say or write The reality is, is that …

Neil Guthrie (@guthrieneil)

 

WestlawNext Canada includes an excellent Citing References tool. Today’s tip will help you in situations where you are dealing with a long list of citing references for a major case. My example relates to evidence law, but the technique will work with any legal topic.

I’ve recently learned that the law of evidence mostly originates in criminal law, and is transplanted, as needed, to civil law. Thus, most of the citations in Cudmore’s Civil Evidence Handbook are criminal cases. So, if you are a civil litigator, you may wonder from time to time how a criminal law authority on evidence has been applied in civil matters.

Take, for example, R. v. Cloutier 1979 CarswellQue 15, a case that rules that there must be a probative relationship between a fact introduced as evidence and the facts at issue in the matter. Start by pulling up that case in WestlawNext. Now find the Citing References tab and select “Cases and Decisions.” There are 207 references, and at a glance, most of them are criminal cases.

Is there an easy way to filter out the criminal case, and view the civil ones?

Look at the left-hand panel of the results screen. First, make sure you are only viewing Cases and Decisions, not all document types. Most of the filters are exclusive to case law. Going down the screen, you should see “Search within results,” Date, Depth of Treatment, Jurisdiction, Court Level, Treatment Type, Abridgment Topics, and Citation Frequency. Any of these can be used to limit the results to parameters of your choosing.

Note that the search runs immediately as you select a parameter unless you press the “Select Multiple Filters” button – which allows you to choose more than one filter at a time. Most of the time it is best to choose a single filter and see what the results are before adding another.

For the present example, the filter we want is “Abridgment Topics.” Go ahead and press the “Select” button beneath that heading.

A box appears listing possible Abridgment Topics in alphabetical order. When you select a topic, it appears in the right-hand panel of the box under the heading “Your Selections.” In this case, you might select only Civil Practice and Procedure, or to get a broader range of non-criminal cases, you could select a few other topics as well.

Then click the “Filter” button at the bottom of the box. With only Civil Practice and Procedure selected, we go from 207 hits to 15, a very manageable number – and likely to give us a good look at how that evidence rule has been applied in civil courts across Canada.

But don’t forget you have many other possible filters to work with – you can limit the results to recent cases, cases from a particular province, higher court cases, depth or type of treatment, any number of other Abridgment topics, or any combination of the above. So play around, but always being aware what each filter does to your results before adding more.

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

 

For anyone looking a good guide to legal research, Catherine Best’s “Best Guide to Canadian Legal Research” has been updated by a team of legal research experts (Melanie Bueckert, André Clair, Maryvon Côté, Yasmin Khan and Mandy Ostick) and added to CanLII’s commentary section.

The revised Canadian Legal Research and Writing Guide is divided up into 13 sections (including “Step-By-Step Legal Research Process”, “Use Commentary to Define and Understand the Issues”, “Guidelines for Online Research”, “Researching Canadian Federal and Provincial Legislation”, “Searching Canadian Case Law”, “Stare Decisis and Techniques of Legal Reasoning and Legal Argument”, “Preparing a Legal Memorandum”, and “Legal Citation”) and includes lots of practical advice.

 

As I’ve suggested previously, odds are if you insert the word clearly in your sentence you are trying to impose clarity on something that isn’t clear at all. If something really is clear, you don’t need to say so.

In the same vein is the phrase highly anticipated (‘This highly anticipated decision from …’; ‘The release of the OSC’s highly anticipated rule on …’). The phrase gets used a lot: according to Slaw’s Canadian Law Blogs Search Engine, it occurs approximately 5,080,000 times in Canadian blog posts.

That sure sounds like over-use – or, in other words, a reason not to use a hackneyed expression.

Not only hackneyed, but also far from the truth. What it usually means is ‘highly anticipated by a single law nerd or small group of them who need to make this blog post sound more important than it probably is’.

You can and should do better in your blogging: show your reader why something is important or interesting; don’t merely assert.

Neil Guthrie (@guthrieneil)

 

Not a question that arises in connection with drafting a contract or pleadings (one hopes), but certainly in composing e-mail.

Both are recognised forms.

On the traditional assumption that the expression was originally shorthand for all correct (rendered in humorous, dialectical or unschooled US English as oll (or orl) korrect), OK has the merit of being closer to the source.

There is something fishy-sounding about that etymology, I’ve always thought, but the OED and Fowler repeat it. The latter gives some other possible origins and a case reference to Nippon Menkwa Kabushiki Kaisha (Japan Cotton Trading Co Ltd) v Dawsons Bank Ltd [1935] 51 Ll LR 147 (PC (Burma), 1935), where Lord Russell of Killowen calls it a ‘commercial barbarism’ but accepts its usage in business transactions (even if, on the facts of the case, writing O.K. on an invoice did not give rise to an estoppel).

The older usage citations in the OED have OK (the first is from 1839), with okay appearing later in the nineteenth century, so OK also appears to have age on its side. Spell with or without periods (I prefer to omit them).

Okeh is a variant (and the name of a jazz record company founded in 1918 by Otto K.E. Heinemann, as an obvious play on his initials and the popular expression). Okey-doke and okey-dokey emerged in the 1930s, Ned Flanders’s okely-dokely circa 1990.

Neil Guthrie (@guthrieneil)

 

We’ve covered bad business jargon in this space, but other fields of endeavour are guilty of polluting the language with their specialist lingo.

Human resources (itself a piece of HR jargon; it used to be personnel or, in a more sexist age, manpower) comes to mind. Here are some examples of HR jargon to avoid; there are many more.

Diverse
Americans often refer to a diverse attorney when they want to describe a lawyer (as we would typically say in Canada) from a background that is other than white, male, straight, middle class. But in a room full of brown lesbian barristers, there is no diversity (at least on the basis of race, sexual orientation or area of practice). We are diverse only in relation to others and collectively.

What the adjective means in diverse lawyers is, less concisely but more accurately, historically disadvantaged or underrepresented in the legal profession. That’s a bit of a mouthful, so perhaps diverse in this context serves a purpose.

But I still don’t like its imprecision.

Feedback
Originally, feed-back; and used to describe the return of electrical output from one segment of a circuit or amplifier to an earlier stage of input – like the feedback from the speakers when you’re rocking out on an electric guitar.

From about the 1940s, the word began to be applied metaphorically to a response to any kind of process, often in relation to the kind of behavioural conditioning associated with the American psychologist B.F. Skinner.

More recently, and in HR-speak, feedback has come to mean commentary on someone’s job performance.

Given the origins of the term in circuitry and behavioural science, where feedback is involuntary or automatic, rather than thoughtful or considered, its extension to performance reviews is somewhat unfortunate. Couldn’t we just ask for comments, views or a review? But this is a losing battle; feedback in its HR sense is here to stay.

Proactive
This is a recent coinage, much loved by those who give (but perhaps not receive) performance reviews.

It was invented as an opposite for reactive, a quality which is perceived as a weakness and in need of a forward-looking alternative (even though reacting is often all one can do when events are unforeseen or unforeseeable, as they often are).

Even those with foresight don’t proact, they simply act; and if one is both thinking ahead, one anticipates. Seen in a positive light, proactive means thoughtful or careful; more neutrally, merely fortunate in predicting an outcome (or in making it look as though one saw it coming).

Either way, proactive is overused HR jargon that is best avoided.

Team
This is another piece of weary HR-ese, with unpleasant overtones of organised fun, forced collegiality and top-down decision-making (Andrea and her team just makes me think it’s all about Andrea, somehow).

Or maybe I’m just not a team-player.

Neil Guthrie (@guthrieneil)