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Does the subject of your sentence do something (She said that), or is something done to the subject (That was said by her)? The first is an active construction, the second a passive one.

The active voice is much more effective. It tends to be shorter and simpler, more natural and direct, more engaging.

Lawyers, who are often accused of being verbose and overly complicated, unnatural, indirect and anything but engaging, favour passive constructions.

Which is more forceful? I love you (active) or You are loved by me (passive)? We recommend the chocolate mousse (active) or The chocolate mousse is recommended by us (passive)? No points for getting the right answer: it’s too obvious.

With good reason, Theodore Blumberg Seven Deadly Sins of Legal Writing (2008) calls passive constructions the first deadly sin of legal writing.

There are some occasions when the passive is the better choice, but not many:

  • the responsible party is irrelevant or unknown (The summons was served)
  • result > responsible party (Mission accomplished)
  • you want to deflect blame (Mistakes were made, as opposed to Our client made mistakes)
  • for emphasis (He was shot) – although it’s easy to deaden rather than heighten effect with the passive
  • to improve flow between two sentences (Bupinder is a model associate. He is consistently praised by partners.)
  • to vary sentence structure? trust me (note the active voice there), the passive rarely works
  • sounds better? doubtful; see examples above
  • to create ambiguity and uninteresting prose? for sure

Next tip: that and which

Neil Guthrie (@guthrieneil)

 

Since 1986 almost all federal Canadian regulations have included a Regulatory Impact Analysis Statement (RIAS) following the text of the regulation.

Why should you read the RIAS? Unlike acts, you will not find a discussion of new regulations in Hansard. The RIAS tells you what the rationale was for a given regulation and what it was expected to achieve. A RIAS is usually divided into five sections: issue and objectives; description and rationale; consultation; implementation, enforcement, and service standards; and contact information.

Another benefit of Regulatory Impact Analysis Statements is that they are written for a range of readers. The target readers for the RIAS are “parliamentarians, ministers, TBS officials, members of the legal community, affected parties, and interested members of the public”. As a result, the instructions for writing a RIAS emphasize the use of clear language, stating that it should “be understandable to anyone who may wish to read it.”

Susannah Tredwell (@hannasus)

 

In many ways we’d be better off without the apostrophe, judging by the frequency with which it’s incorrectly used, its functions misunderstood.

Here’s a handy guide.

Possessive

  • singular possessor: John’s book
  • singular possessor ending in S: James’s is preferable to James’, but both are OK; and the possessive form of many biblical and classical names traditionally leaves out the additional S (Jesus’, Claudius’)
  • plural possessors: the Singhs’ house is next to the Joneses’ house [not the Jones’ house – or, heaven forfend, the Jone’s – but the Jones house (non-possessive) would be fine (see ‘Is it plural or possessive?’, below)]
  • no apostrophe: possessive pronouns (his, hers, ours, yours, theirs, whose and the sometimes troublesome its, not to mention mine)

Contraction

  • it’s (it is); also what’s up, let’s (let us), who’s who, don’t, you’re (that is, you are; never to be confused with the possessive your) etc.
  • note, however, that some contractions take a period (‘Mr.’, ‘St.’ for ‘Saint’) – although they could usefully lose that, as they have in the UK

Plural

  • don’t go here! but people do; I saw this apostrophe catastrophe in a publication from one of the Seven Sisters: the legislature’s intention to provide substantial protections to franchisee’s [it’s the second apostrophe that’s wrong, I hasten to add]
  • this is the dreaded ‘greengrocer’s apostrophe’ (tomato’s, bean’s …)
  • traditional to pluralise some things with an apostrophe (dot your i’s and cross your t’s)
  • better to use capitals and drop the apostrophe (cross your Ts)
  • this may help you avoid the temptation to use an apostrophe when you absolutely must not (see franchisee’s above)

Is it plural or possessive?

  • some things could go either way: British Bankers’ Association (possessive) and Canadian Bankers Association (plural, adjectival noun) are both correct; similarly, shareholders’ agreement/shareholders agreement
  • some things probably could not: Keep out, police dog’s working

Law firm names

  • apostrophes have been creeping in (e.g. Gilbert’s LLP, which to me has the somewhat unfortunate ring of ‘Gilbert’s very own little LLP’)
  • confusion with the plural at work here?
  • but be careful with that too: Torys is correct (two Torys founded it), Stikemans is not (only one Stikeman)

Up next: take a pass on the passive.

Neil Guthrie (@guthrieneil)

 

Many lawyers and legal researchers keep a mental note to look out for new regulations under specific Acts or new proclamations bringing into force an Act of interest. As Shaunna Mireau pointed out in this October 2011 tip though, if you’re only keeping an eye on new issues of the relevant Gazettes, you’ll be days or even weeks behind those who are also keeping an eye on orders in council. Remember, most regulations, proclamations, and orders begin life as orders in council. Then, if required, the OIC is later published in either part of the Gazette. So, stay on top of new regulations by looking at orders in council first.

I’ve compiled a handy reference list below for the jurisdictions I work in most often. Chime in the comments if you have a tip to share about your own early warning system for your province’s regulations or proclamations.

  • Federal: Federal orders in council are posted to the Privy Council Orders in Council database as they are signed throughout the week. Do a date-limited blank search for the past two weeks in this database so see the latest OIC’s.
  • British Columbia: New regulations are listed in the BC Regulations Bulletin every Thursday and orders in council are posted to the BC Laws website as they are signed throughout the prior week.
  • Alberta: Orders in council are posted to the Alberta orders in council webpage on the day or the day after they’re signed throughout the month.
  • Ontario: Regulations are posted to e-Laws, here, as they are filed, and extracts from proclamations are listed in the e-Laws Proclamations table as each OIC is signed. (My thanks to the very helpful Susan Merdzan, Manager of e-Laws with the Ontario Attorney General, for confirming this order of operations.)
  • Northwest Territories: Registered regulations and orders are not made available in advance. (Thank you to Bev Speight of the NWT Department of Justice Library and her colleagues at the Legislation Division at GNWT for confirming this for me.)
  • Nunavut: OIC’s are not made available separately in advance, however often the Government will put out a press release with a heads up if a regulation or proclamation is going to have effect before the next issue of the Gazette is published. (My thanks to Jenny Thornhill, Manager of Court Library Services for the Nunavut Court of Justice for the tip about press releases.)

Bronwyn Guiton (@BronwynMaye)

 

The novelist Graham Greene – a master of lean, mean prose – called adverbs ‘beastly’. (In spite of the -ly ending, that’s an adjective.)

Think of the adverb ‘quite’, which is either ambiguous or weak: ‘quite good’ can mean ‘better than expected’, ‘something a bit less than good’, ‘actually good’, ‘very good’. In any case, it lacks oomph.

Or indeed ‘very’, which the nineteenth-century newspaper editor William Allen White called ‘the weakest word in the English language’. Very true.

In legal writing, adverbs are often used as qualifiers or fillers. I’m thinking of words like ‘generally’, ‘clearly’, ‘unfortunately’.

In opinions, ‘generally’ may have a valid place as a signal of potential uncertainty in the law (although even there it can be overused, when it’s a substitute for actual analysis). In an article or blog, try to eliminate ‘generally’. You’re not writing an opinion (and there will be a boilerplate disclaimer saying that your piece is not to be taken as legal advice anyway), so all it does is soften your impact.

If you have to say ‘clearly’, odds are the point isn’t clear at all. The word is just filler – or an attempt to make the best of a bad job.

Even worse is ‘unfortunately’, which I see a lot in student memos (‘Unfortunately, there appears to be no case law on point …’). It’s not unfortunate, it just is.

And please don’t misuse ‘literally’ as mild form of emphasis. It means ‘as opposed to figuratively’. It would be correct to say ‘I literally have to run’ if the starting gun for your 10-km race is about to go off; incorrect if all you mean is ‘I must go’.

As linguistics prof Geoffrey Nunberg puts it, ‘Adverbs tend to show people at their worst – posturing, embellishing, apologizing, or just being mealy-mouthed.’

Next tip: apostrophe catastrophes.

Neil Guthrie (@guthrieneil)

 

Most CanLII users know that CanLII provides point-in-time versions of legislation. However, one feature of CanLII that is less well known is that it allows users to compare two versions of an act.

It is straightforward to compare two versions of an act on CanLII:

  1. Find the act you wish to compare the versions of.
  2. Underneath the name of the act is a list of point-in-time versions of that act. Select the two versions you want to compare. (They don’t have to be consecutive.)
  3. Click on COMPARE.

The older of the two acts will be on the left hand side of the page and the newer will be on the right. Text removed from the act is highlighted in red; text added to the act is indicated in green. Use the arrow keys on the top right of the page to move through the changes.

Note that this does not work for longer British Columbia acts (such as the Motor Vehicle Act) because the Queen’s Printer splits them into multiple parts.

Susannah Tredwell (@hannasus)

 

What do I mean by this? Pairs of words that lawyers routinely use together, but would be better not to.

These pairs may once (in the late Middle Ages?) have had distinct meanings but now really don’t.

And even in the Middle Ages they may not have: many of these ‘coupled synonyms’ (in Richard Wydick‘s phrase) join an English word with its (Old) French equivalent, in a belt-and-suspenders manoeuvre.

Like ‘free and clear’, which combines the synonymous Old English freo and the Old French cler.

Examples:

Null and void [how about ‘of no effect’?]
No force or effect [ditto]
Save and except [one or the other, not both]
Full and complete [same comment]
Unless and until [this drives me crazy]
Separate and apart [except as a term of art in family law]
Cease and desist [plain old ‘stop’ will do just fine]

These formulations are redundant and inelegant, they don’t reflect how normal people (like clients) actually speak, and they make your writing look fussy.

Next: avoid the adverb.

Neil Guthrie (@guthrieneil)

 

ChangeDetection.com is a tool I recommend to help you monitor webpages and be notified automatically if they’ve been updated. No one wants to be sitting around refreshing a web page until that important agreement gets uploaded and goes public. This tool will watch the page for you and email you when it’s updated. Being the first one to share that sort of update with a colleague or client often pays off with new work or with increased trust and respect.

If I wanted to be notified of updates to a Government of BC page listing all current agreements between them and, for example, the Stó:lo Nation, I would plug the page URL into ChangeDetection.com and set it to email me whenever there is a change to the page. Another example of a webpage that may be of interest to monitor is this federal Ministry of Finance page of all open consultations with the public (which could lead to new legislation). Typically, ChangeDetection.com checks pages once per day for changes.

Of course, many websites already have an email subscription feature that emails you when a new document is added. ChangeDetection.com offers no particular benefit in cases like that. For example, the BC Government press release website has a great email subscription for notification of new press releases. However, there are also many sites where the email subscription option is difficult to find or absent altogether. (I’m looking at you, Federal Court practice directives.) In those cases, I don’t hesitate to copy the URL into my account on ChangeDetection.com.

So, next time you come across a webpage and think “I should bookmark this and check on it from time to time”, consider also adding it to ChangeDetection.com. Few of us have the follow through to actually go back and check that page regularly, so why not let ChangeDetection.com do it for you? Just set it and [you won’t] forget it!

My sincere thanks to Debbie Millward who first shared this site with me.

Bronwyn Guiton (@BronwynMaye)

Post-script for techies:
ChangeDetection.com isn’t just an RSS reader with a push notification feature for when a blog has been updated. That sort of notification of new pages is fairly common. ChangeDetection.com actually maintains a log of recent changes to an existing page and allows you to see the difference between any two versions of it. Since any and all changes to the page will be detected, occasionally this makes for some irrelevant notifications. I fondly recall the day last summer when the Government of BC changed every last “and” to “&” on their website menus. These are the little changes that you’ll still get notified about and it’s up to you to decide how much of this noise is worth the convenience of being the first to hear about a relevant new agreement or initiative.

 

Just as blogs get more readers than e-mails, articles with catchy headlines and enticing openers are more likely to be looked at than, well, boring ones.

Here is a post from LinkedIn that illustrates the point:

A recent case from the ONSC clarifies the law on whether municipalities can regulate boathouses and whether the Building Code Act applies to same, finding that (i) municipalities have jurisdiction to zone Ontario lakes and apply zoning by-laws to lakes, regulating construction of boathouses and other structures; and (ii) the Building Code Act applies to such structures, where not otherwise prohibited by the by-laws and the Public Lands Act.

Descriptive and relatively clear (despite the legalese) – but so dull! Especially when the underlying facts are so good: Toronto lawyer objects to a neighbouring cottager’s rogue boathouse, municipality and province refuse to step in and regulate, lawyer sues governments, judge clarifies ‘murky waters’ (his phrase) of planning rules for boathouse construction.

Or consider these examples from Lexology, which tell the reader nothing and provide little incentive to find out more:

US Board of Governors of the Federal Reserve System approves final rule amending Regulation D
Shearman & Sterling LLP
On June 18, 2015, the Board of Governors of the Federal Reserve System adopted a final rule amending Regulation D (Reserve Requirements of Depository…

“Reasonable time” in FRCP 60(b) is measured between notice and filing.
Jenner & Block
In Bouret-Echevarría v. Caribbean Aviation Maintenance Corp.,784 F.3d 37 (1st Cir. 2015) (No. 13-2549), the First Circuit addressed the…

Ironworkers Dist. Council of Phila. & Vicinity Ret. & Pension Plan v. Andreotti, C.A. No. 9714-VCG (Del. Ch. May 8, 2015) (Glasscock, V.C.)
Potter Anderson & Corroon LLP
In this memorandum opinion, the Court of Chancery granted a motion to dismiss Plaintiff’s derivative complaint under Court of Chancery Rule 23.1, and…

Probably nothing could save that one from Jenner & Block, but you get the point. Lexology just shows a headline and the opening words of your piece, so make them enticing.

And let’s rewrite the Ontario update along these lines: Judge clears up ‘murky waters’ – you can’t just build a boathouse wherever and however you want.

Next tip: gruesome twosomes.

Neil Guthrie (@guthrieneil)

 

Legal citations like to pack the largest amount of information in the smallest amount of space. However, if you are not familiar with the abbreviation for a specific law journal or reporter, it can be tricky figuring out what is being referred to from a few scant letters. Adding to the confusion is that one journal may be referred to by different abbreviations and the same abbreviation may be used for multiple law reports. (For example, does the B in B.L.R. refer to Business or Building or Burma?)

Fortunately there are a number of resources to assist in deciphering these abbreviations.

Donald Raistrick’s Index to legal citations and abbreviations, 4th ed. (London : Sweet & Maxwell, 2013) provides an extensive (if not exhaustive) list of legal abbreviations.

Appendix C of the McGill Guide lists the most common abbreviations for law journals.

If you are looking for an online resource, the Cardiff Index to Legal Abbreviations lists legal abbreviations for publications from over 295 jurisdictions.

Susannah Tredwell (@hannasus)