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A friend, who is originally from the UK and not a lawyer, asked me why we call our trainees articling students.

The articling element comes from the articles (provisions, clauses) of the agreement by which a mediaeval apprentice was bound to his (it would have been his in the Middle Ages) principal.

In full it was always articles of clerkship for would-be lawyers, clerk being an old word for anything kind of scribe-y. My late, very old-school father would refer to articled clerks (and pronounce the second word to rhyme with larks not lurks).

In British Columbia, the technical term is articled student; in Ontario and other provinces, it is the rather unlovely articling student, which I suspect dates from the 1960s.

Both come from the verb to article, meaning to be in a formal legal apprenticeship under the supervision of a lawyer.

In England, trainee accountants also article – and there, one is generally articled to someone specific. In Canada, one just articles in a general way, as the first Canadian usage listed in OED suggests: He articled as a student-at-law in September of 1912 (from the Manitoba Free Press, 1918).

The at-law bit is an old fashioned way of saying ‘in relation to the activity of law’; one is also at the bar or a barrister-at-law once called to the bar.

The bar being the railing or other physical barrier surrounding the judge in a courtroom, not one of the cocktail variety – although lawyers are often no strangers to those. By extension, the practice of advocacy itself.

Most of this would baffle an American legal practitioner, who typically does a brief stint as a summer associate (what we would call a summer student), then writes the bar exam and immediately becomes an attorney (in a firm, with the tile of associate, as here).

Neil Guthrie (@guthrieneil)

 

Last Thursday, CanLII unveiled its newest endeavour: the CanLII Manual to British Columbia Civil Litigation. The resource consists of nine “pathfinders” dealing with specific areas of the law, a guide to civil procedure at the BC Supreme Court, and annotated rules of court for both the BC Supreme Court and the Court of Appeals.

There is a lot of very useful information in this publication but there was one particular resource I wanted to highlight: the annotated rules of court. Lawyers frequently want to consult an annotated rules but up until now there has been nothing available freely online for British Columbia. And because this is an online resource, the annotations link to the relevant cases on CanLII, making it a seamless experience.

Susannah Tredwell

 

The error in the title is deliberate, for two reasons.

First, it’s important to proofread everything, including titles, recipient names in a memo, captions for diagrams or pictures (see below), footnotes. It’s particularly embarrassing if you spell your client’s name incorrectly or your managing partner’s.

Second, prof for proof is a play on words, prompted by the experience of students at the Faculty of Law at the University of Toronto.

A certain law professor (who will not be named here – but who is identified in the original story) copied and pasted exam questions from a previous year. He seems to have failed, however, to ensure that references to parties and other details in the recycled portions matched up with the newer part of the fact-pattern. Exam questions were ‘so poorly written they were incomprehensible’. It sounds like there were problems of composition and editing, as well as proofreading issues.

Problems like this often occur when you adapt a precedent, or cobble together something new from multiple templates: defined terms that aren’t defined or are never used, inconsistent terminology, cross-references that don’t synch, problems with formatting and numbering.

There is software that will help with this (Contract Companion comes to mind) – but it won’t spot that error in the managing partner’s surname. 

Neil Guthrie (@guthrieneil)

 

 Annoying little things that have crossed the radar.

Air on the side of caution

Uh, no. It’s err.

But, as the poet said, to err is human, to forgive divine.

Just desserts

Those who grew up in Toronto in the 1980s may remember a restaurant of this name, which served nothing but cakes and fruit pies.

The moniker was a play on the phrase just deserts, which (with the emphasis on the second syllable of deserts) means ‘due recompense’.

With the emphasis on the first syllable of deserts, the phrase would mean ‘solely arid wastelands’.

Re- plus back

In the space of two days I saw both return back and reply back.

The back is redundant, as it’s built into the re­- prefix already.

Renumeration

This is heard fairly often and seen as well, but it’s an error for remuneration, if the meaning is intended to be ‘compensation’ or ‘payment’ rather than ‘renumbering’.

It’s a very old and persistent error, however: the OED cites examples from the early fifteenth century to the present.

It probably arose as a typo or, in speech, as an example of what’s called metathesis.

That’s a fancy word for transposing the initial letters of two words or syllables (e.g., Cake Blassels for Blake Cassels). A colloquial name for this is a spoonerism, named after the Revd William Archibald Spooner (1841-1930), an Oxford cleric who was apparently apt to metathesise in sermons, with unintentionally comic effect. (Most of the examples attributed to him are probably apocryphal, however; concocting spoonerisms became something of a late Victorian parlour game.)

Neil Guthrie (@guthrieneil)

 

Yet more.

Above-captioned
This is a truly awful way to describe anything.

Substitute this or a concise description of the subject of your e-mail or letter and it will read oh, so much better.

Action item
Plain old task will do nicely, thank you.

And please don’t action anything; it’s not a verb.

Ecosystem
If something isn’t a space (the derivatives space, the cannabis space, the cryptocurrency space), it’s an ecosystem – or, indeed, its own ecosystem.

Meaning (I think), subject to its own set of rules, like those of a particular jurisdiction. So, not really an ecosystem. Rather, a régime, a scheme, a system, a jurisdiction.  

Value-add
This has three strikes against it.

First, it’s a horrible cliché.

Secundo, it’s one of those ugly and unnecessary nouns-from-verbs.

And finally, it’s a redundancy. Just say value or benefit. The ­–add bit is superfluous; and there isn’t such a thing as a value-subtract. Not yet, anyway…

Neil Guthrie (@guthrieneil)

 

There are two principal and related uses of ellipsis (…), both based on their function to indicate that something has been left out (ellipsis means ‘omission’ in Greek).

The first is what we might call the technical use. Here, ellipsis shows that a specific word or larger portion of text has been omitted from a quotation: ‘I did … have sexual relations with that woman …’ (Bill Clinton, 1998).

Be careful when doing this, as in the Clinton example. There, the second ellipsis marks the missing name ‘Miss Lewinsky’, which hardly needs to be supplied; but the first one radically distorts the (intended) meaning of the original.

Sometimes it’s hard to say whether distortion of meaning through omission is inadvertent or deliberate.

Counsel in a recent New York case received a stern reprimand from the judge where the use of ellipsis looked a lot like making a false statement to the court. The judge threatened the lawyer with a fine for contempt, a public reprimand and possible suspension or disbarment: see Colonial Funding Network Inc v Epazz Inc, 16 Civ 5948 (SDNY, 14 April 2017), Stanton USDJ.

The second use of ellipsis is what might be called the rhetorical, where the writer includes the three periods and lets the reader fill in the blank, or wishes to indicate a pause in thought, an ambiguity. Use this device sparingly (if at all) in formal legal writing – it may suggest too casual a tone, a failure to think something through or a meaning you did not intend.

Neil Guthrie (@guthrieneil)

 

In a previous tip, I referred very briefly to the fact that the Canadian federal government and some provinces offer RSS feeds that can be used to track the progress of legislation. 

The federal RSS legislative feed is very flexible, allowing you to choose exactly what information you want to track. You can set up your feed to monitor the progress of specific (or all) bills, let you know when legislative amendments are proposed for specific acts, or see what acts have received Royal Assent. 

If you’re interested in creating your own custom RSS feed, you’ll find a box on the left hand side of the Parliamentary website with various RSS feed options (“Legislative Activities”, “Legislative Summaries”, “Create a custom RSS feed”, and “Parliament–Session”). If you click on “Create a custom RSS feed”, this will bring you to a page with a slew of options. For example, if you wanted to be alerted any time there are proposed legislative changes to the Copyright Act, you could enter “Copyright Act” in the Text search and then select “Title and Content”. You then need to choose which “bill events” you are interested in, e.g. First Reading and Royal Assent.

Once you’ve set up your feed, you probably will want to add them to a RSS reader. I use Manzama (which requires a paid subscription) since it allows me to include multiple RSS feeds in one news alert which is then emailed to me.

Susannah Tredwell

 

Oh, so many pitfalls. Here are a few more that have crossed the radar recently.

Credible/creditable

The first means ‘believable’, as in Inconsistencies in the witness’s testimony led inevitably to the conclusion that her evidence was not credible.

The second is sometimes (erroneously) used for credible, perhaps by writers who think that an extra syllable adds weight or effect. Creditable really means ‘reputable’ or ‘bringing credit to’: Irwin Law is a highly creditable publisher of legal titles.  

Presumptive/presumptuous

Clearly from the same root, like presume, and sometimes used interchangeably – but best not.

Presumptive should be used when you mean ‘based on inference’ or ‘giving reasonable grounds for belief’, as in Seeing his tax returns might provide presumptive evidence of collusion with Russia.

Presumptuous is usually reserved for situations where you are suggesting that someone is ‘unduly confident’ or ‘impertinent’: It was presumptuous of the junior associate to take a place at the head of the table, where the managing partner usually sits.

Presumptive also has a technical meaning in reference to an heir or heiress whose rights will be displaced by the birth of a nearer heir: During the lifetime of her father, the Queen was only heiress presumptive (not heir apparent) because it was always theoretically possible that her mother might give birth to a son (male primogeniture then being the rule of succession).

Wary/weary

This is one I hear, but have yet to see on paper or on screen (give it time, though).

To be wary is to be cautious or leery: I was wary on entering the dive bar; it looked dark and dangerous.

Weary, on the other hand, just means tired: The judge was clearly weary of hearing the long-winded lawyer.

Surprising that they get confused, but they do.

Neil Guthrie (@guthrieneil)

 

If something isn’t a conversation these days, it’s a situation.

An extreme weather situation. Or, on public transport in Toronto, any number of the following in service announcements on ttc.ca: an emergency situation, a power-off situation, a flooding situation, even a full-throttle situation.

All can be recast without the situation bit: extreme weather, an emergency, a power-outage, a flood – although admittedly a substitute for the full-throttle thing doesn’t come readily to mind.

I’d even avoid situation on its own, as there are less tired expressions: incident, circumstance, event, occurrence

Worse, though, than any of these situations is a win-win situation. This expression is done to death! In contract negotiations, NAFTA negotiations, M&A deals …

Why not just say a good outcome, a positive result for everyone involved, or a good compromise?

It’s unlikely everyone got everything they wanted without making any concessions, so win-win probably overstates the case in any event.

Neil Guthrie (@guthrieneil)

 

Many people do, like the drafters of a contract at issue in an Indiana case brought to our attention by Ross Guberman in a LinkedIn post.

The contract made one party responsible for ‘the periodic repair of damages to said Easement area caused by vehicular traffic (i.e. potholes)’.

That party argued it was therefore not responsible to repaint lines in the area in question (a parking lot) after normal wear and tear from traffic not causing potholes.

The trial court held that potholes were but one example of damage to the parking lot. The Indiana Court of Appeals reversed, taking a typically US literalist view of contract interpretation: i.e. means ‘that is’, not ‘for example’, so the responsible party was required to fix potholes, and only potholes.

See Speedway Corp v Wilson Real Estate II LLC, Memorandum Decision 67A01-1709-SC-2089 (Ind CA, 18 April 2018).

A Canadian court might take a more contextual approach to arrive at the opposite result, but the Indiana case is a useful reminder that you’re better off using English if your Latin is rusty (or non-existent).

Neil Guthrie (@guthrieneil)