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There are many reasons to pity Melania Trump (although maybe she knew what she was signing up for and got what she deserved – hard to say, really).

Mrs T got into some linguistic hot water with the slogan for her campaign for children’s health and happiness, launched in May 2018: Be Best.

As Tim Hill has pointed out in The Guardian, this doesn’t hold up to what he calls ‘the laws of English grammar’ (I’d soften that a bit and call them rules; English is more flexible than laws would suggest).

One can be good and one can be better, but one really ought to be the best, not just best. That said, it would be idiomatic (and correct) to say It would be best not to do that.

The origin of Melania’s little solecism? Her not always grammatically correct husband, perhaps. Or a desire to outdo, with a superlative, Michele Obama’s exhortation in 2016 for men to be better. Or possibly a staffer’s subtle mockery of the First Lady’s somewhat shaky command of English and its use of definite articles (which are foreign to her native Slovenian).

Not, by any means, the greatest failing of the reign of Trump, but worth noting.

Neil Guthrie (@guthrieneil)

 

Summons is one of those odd nouns that ends in –s in its singular form; so the plural is summonses.

Odder still is the use of summons as a verb, meaning to command someone’s appearance in a court of law by way of a summons. Verbs don’t typically end in –s either.

Not everyone is happy with this state of affairs: Glanville Williams wrote in Learning the Law, 11th ed. (1982) that ‘the horrible expression “summonsed for an offence” (turning the noun “summons” into a verb) has now become accepted usage, but “summoned” remains not only allowable but preferable’.

A little digging in the dictionary (Oxford, of course) shows, however, that summons is older than Williams suggests – if not entirely reputable.

The usage citations in OED go back as far as 1780, with a quotation from Martin Madan’s Thelyphthora: ‘A woman had but to summons her seducer before the judges’. Madan (1726-1790) was a barrister (and a clergyman), but a controversial one; Thelyphthora scandalised its readers in advocating polygamy as a remedy for the ‘female ruin’ brought about by what he called whoredom, fornication and adultery. Perhaps not the best authority, then?

Next in the citations comes a line from Dickens’s Nicholas Nickleby (1828), where the sadistic schoolmaster Whackford Squeers (oh, those Dickensian names!) ejaculates, ‘Say another word and I’ll summons you for having a broken winder’. The dialectical winder may suggest that summons, too, is non-standard.

And the final example is from the novels of Marie Corelli, a forerunner of Barbara Cartland and EL James (so not exactly an exemplar of great literature): ‘You can summons me … if you feel so inclined’ (God’s Good Man (1904)).

All in all, not an impeccable pedigree for the verb summons, but it isn’t as newfangled a word as Glanville Williams suggests. I agree, though, that to summon is the better way to go.

Neil Guthrie (@guthrieneil)

 

A very quick tip today: if you’re trying to print out a readable version of a web page, but the website doesn’t provide the content in a print friendly format, try using https://www.printfriendly.com to remove any extraneous information.

 

Let’s talk about Legal Information Institutes (LIIs). Every Canadian legal researcher knows about CanLII (I least we hope you do). But there is also LII (that’s the USA one), BaiLII (Britain and Ireland), AustLII (Australasia), AsianLII, HKLII (Hong Kong), PacLII (Pacific Islands), SAFLII (Southern Africa), WorldLII, and many others, all of which are part of the larger Access to Law Movement.

LIIs provide free access to current, primary law in their jurisdiction. But they do not always contain comprehensive collections of historic materials (in all cases, I assume, they are working on it). In the English-speaking world, the most earnest attempt to fill in the historical gaps is CommonLII, which covers the world of common law (assuming there is a high correlation between commonwealth countries and common law countries, that is).

Recently, CommonLII enhanced their historical vision with the Foundations of the Common Law Library (1215-1914). No, 1215 is not a typo. In addition to the Magna Carta, the site includes many obscure statutes from the thirteenth century and forward, including, for instance, the Treason Act of 1351.

The collection of English Reports goes back to 1220, but seems a bit patchy when compared to the statute law, as there are hundreds of cases tagged January 1220, but then nothing more until the year 1457. Despite being “reports,” many of these records are no more than what we would today call summaries or digests – an example from 1491:

Conusee. –A man had lands of ancient demesne in extent for debt, and they were recovered from him by the sufferance of the vouchee, whereby he was ousted ; in this case he shall be holpen here. Morton, Chancellor ; per Assent, Bryan, and Hussey, Justices (7 H. 7. 11 [1491-921).

It might require a historical legal scholar to determine in what way the debtor was “holpen” (helped) in this case, but it appears that people in 1491 got themselves into similar situations that many of us do in the 21st Century.

“Foundations” is perhaps an overused metaphor. Is the modern law really built upon these judgments, in the way that a courthouse is built upon concrete footings? In reviewing the above ruling and a few others, I am more inclined to think of them as the infancy of the common law. The law was smaller, simpler, and by appearances, more innocent. The modern law grows out of it, rather than resting upon it. In any event, to invoke yet another overused metaphor, this is the fresh spring that over time will become the mighty river that is the common law.

What else does this collection include? It’s a bit of a mixed bag. In the case of Canada, it includes only a link to the complete Supreme Court of Canada judgments on CanLII. For Australia, who led in the development of CommonLII, there are law report series for all provinces, each going back to the 19th Century or earlier. There are also collections for Uganda, Southern and Western Africa, Hong Kong, Burma, India, Pakistan, Sri Lanka, Jamaica, Bahamas, and ever other country in the Commonwealth with a significant collection of reported case law.

So the next time you see a citation for a very old British judgment, or one from any common law jurisdiction, or you just feel like exploring the cracks and fissures in the footings beneath modern jurisprudence, remember to revisit CommonLII.org and return to the Foundations.

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

 

 

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]