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This is an excerpt from an actual letter received from a writer whose identity shall remain shrouded with a justly deserved veil of anonymity:

“We acknowledge your recent correspondence and attachment of the 29th instant with thanks, same being forwarded herewith to our client for reference and review, with the writer confirming our telephone conversation of the 19th, and your undertaking not to take steps to the detriment of our client without ample prior notice to the contrary being first given to the writer, [client] presently being in the process of retaining litigation counsel to deal herewith, with service being endorsed herewith on the true copy as requested.”

Instant? No one has used that for ‘of the current month’ since about 1870. Three instances of herewith in one sentence?? And it’s not entirely clear what the third one is referring to…  Same?! Ugh, ugly commercialese – and, logically, it refers here to thanks not correspondence and attachment (which the writer presumably had in mind). And the writer??!! You’re a lawyer, not Queen Victoria – so there’s no need to refer to yourself in the third person.

I fear this lawyer also writes to clients in the same vein …

Here’s a proposed translation, which may not be much shorter – but at least it’s clearer and doesn’t sound like something drafted by some scrivener in a novel by Dickens:

“Thank you for your letter and attachments of [month] 29, which we have forwarded to our client. We remind you of your undertaking, when we spoke on the 19th, to give notice before taking any steps which may adversely affect our client. Our client is now seeking litigation counsel. We have received your client’s statement of claim and return the signed copy you requested.”

Less egregious, but equally Dickensian (in a bad way):

  • please find attached/enclosed (even in the days of physical letters the please find business was weird and archaic; you can simply say I have attached the X or refer to the X, which is attached)
  • please do not hesitate to … (the reader is a grown-up and can figure whether he or she wants or needs to do that; this is meaningless and faintly patronising)
  • this is to acknowledge (just say thank you for whatever it is; by doing that, you’ve acknowledged it)
  • govern yourself accordingly (the worst kind of wannabe Perry Masonism; it should be clear from your letter, if you’re writing to a lawyer, that the recipient should be on notice about something – and if you aren’t writing to a lawyer, it sounds even more cheaply menacing)
  • we appreciate your consideration herein (another gem from Steven’s correspondent; herein usually means ‘contained in this document’, so the meaning is unclear; but you’re better not even to go there)

Please avoid these (and other) worn-out phrases, which have altogether too much of the inkwell and the quill pen about them.

Next tip: between and among

Neil Guthrie (@guthrieneil)

 

Tracing the legislative history of an act can be challenging, and even more so if the act you are looking at is the Income Tax Act. Here are some things to keep in mind when tracing the legislative history of the Income Tax Act:

  • The Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) maintains the section numbering from the previous version, rather than being renumbered.
  • The Income Tax Act, R.S.C. 1970, c. I-5, although published in the revision, never came into force due to the major changes proposed by the bill that later became S.C. 1970-71, c.63.
  • Although S.C. 1970-71-72, c. 63 was an amending act, it repealed and replaced almost all of the Income Tax Act, R.S.C. 1952, c.148, so you periodically see references to “the Income Tax Act, S.C. 1970-71-72, c.63”.

Susannah Tredwell

 

The fourth in a series.





Next week: please don’t tell me you write letters like this

Neil Guthrie (@guthrieneil)

 

Me and others, in fact: these are largely submissions by loyal readers.

Alright
No, you are thinking of almost. It’s all right – two words, always.

Anyways
A word that used to be used to mean ‘in any way, in any respect, at all’. Witness the Book of Common Prayer (1560): ‘ all those who are anyways afflicted, or distressed, in mind, body, or estate’ (btw, English prose doesn’t get much better than the BCP).

More recently, anyways has come to mean ‘in any case, at all events, anyhow’ – but in usage that is variously described as ‘informal, ‘colloquial’, ‘dialectical’ or (ahem) ‘illiterate’.

The better way, in both speech and writing, is anyway.

Asking questions that aren’t questions
Just because you use a word that can pose a question doesn’t mean you’re necessarily asking one. The question mark in this blog post is wrong: When Three Rights Make a Wrong? – this is a statement, not a question. Reframe it as ‘When do three rights …’ and you can add your question mark.

The problem often arises in student memos: The first issue is whether a motion for summary judgment would succeed? Wrong again; statement, not question.

The disconnect
This should have been included in the tip on weak nouns formed from verbs.

I am so sick of hearing about the disconnect! Please say disconnection, disjuncture, failure (not fail), communication failure, gap – anything but the disconnect.

Firstly, lastly
These have a ring of circa 1875 to them: you’d be better not to use them.

One of the oddities of traditional English style is enumerating as follows: First, Secondly, Thirdly … Last. Firstly appears, in fact, to be a nineteenth-century invention that has always sounded fussy.

In modern writing, you could even go with second and the like over  the –ly form, which has the advantage of being consistent with both first and last.

Pre
Why do people tack on this prefix where it really isn’t necessary?

Please don’t preheat your oven, just heat it – this requires prior action before you can cook, so pre- is redundant.

Similarly, pre-arrange, pre-book, pre-build, pre-chilled, pre-cooked, pre-existing, pre-owned (just say used or second-hand), pre-plan, pre-prepare (an absurdity of the first order), pre-qualify, pre-select and pre-set can all lose the pesky prefix and suffer no loss in meaning. The concept of priority is built into all of them.

Pre-drinking as a concept has its uses, however – even if, linguistically, it also fails the logic test.

Stating the perfectly obvious
You really, really don’t need to write Gurpreet Singh (‘Singh’) if he’s the only Singh you mention in your client update or blog post. This isn’t contractual drafting.

Similarly, there is no need to say two (2) months (or whatever unit you’re talking about). Everyone knows what two means, and no amount of ‘for greater certainty’ is necessary. Even in contractual drafting.

Next: confusing pairs, part 4

Neil Guthrie (@guthrieneil)

 

 

Nouns can be used in ways that tire the reader. Here are some things to watch for.

Noun chains
Richard Wydick, author of the excellent Plain English for Lawyers (5th ed, 2005), observes that long chains of nouns used as adjectives don’t make for vigorous prose.

As Wydick puts it, ‘noun chains create noun chain reader strangulation problems’. (See GWWT 42 for the contrasting German approach, which is fine with noun-accumulation.)

Writers of headlines in a certain kind of newspaper love noun chains: ZIKA VIRUS HEALTH CRISIS WARNINGNAZI MYSTERY GOLD TRAIN DISCOVERYDEATH CRASH POLICE OFFICER RELEASEHOLLYWOOD STARLET DRUG SCANDAL SHOCKER.

So (perhaps oddly) do drafters of legislation and other bureaucrats: a glance at federal regulations beginning with A yields (among other gems) the Animals of the Sub-family Bovinae and their Products Importation Prohibition Regulations and the Alberta Sex Offender Information Registration Regulations.

This is OK in the interests of concision on the front page or in a legislative table, but in other kinds of writing the effect is deadening – or downright confusing. Example: business process outsourcing strategy.

Remove some nouns, insert some verbs, make a sentence not a verbal car-crash.

Noun phrases (aka nominalisations)
Here, noun combines with verb (and some other stuff), in order to make what could usually be a straightforward verb. Another way to describe it is with the awful noun nominalisation (making a noun out of something else, basically).

Examples (with their preferable, simple verb alternatives in parenthesis):

  • make a recommendation (recommend)
  • provide assistance to (help or assist)
  • make a decision (decide)
  • provide advice to  (advise)
  • this is to acknowledge receipt of (we received)

Etc., etc. – you get the drift. The problem with these constructions is that they make your sentences longer, flabbier, less direct. Surely you’d rather be concise, toned and vigorous (in your prose, at the very least)?

Weak verbs from nouns
Another tendency of dull legal prose is to use verbs that are derived from nouns (like nominalise).

Other examples: facilitate, operationalise, utilise. Why not the simpler (and more lively) help, launch and use?

Weak nouns from verbs
Please avoid the temptation to turn verbs into nouns, especially when there are perfectly serviceable nouns already. Examples (with their better, existing nouns): ask (request); spend (expenditure, cost), value-add (benefit, advantage).

Next up: miscellaneous little things that annoy me, part 3

Neil Guthrie (@guthrieneil)

 

Conflict of laws, also known as private international law, is a topic concerning the rules governing what happens when two or more legal systems clash in a private dispute. Pitel & Rafferty’s text on Conflict of Laws identifies three key questions: (1) whether a court has jurisdiction, (2) what law the court will apply, and (3) whether a judgment from another jurisdiction will be enforced. Unlike public international law, conflict of laws is not the same everywhere, but is particular to each jurisdiction.

As such, some people have asked about developing a Saskatchewan-specific resource for conflict of laws. While most of the issues discussed the textbooks are internationally-based, there are some areas, such as estates law and family property law, where inter-provincial jurisdictional issues become critical. So a Saskatchewan-based resource might be a good idea – we’ll look into it!

Nationally, the most often-cited text is Castel & Walker’s Canadian Conflict of Laws. The current (6th) edition is a two-volume looseleaf published by LexisNexis, which is available at our libraries in Regina and Saskatoon. For a more concise text, try the aforementioned Pitel and Rafferty, a volume in Irwin’s Essentials of Canadian Law series, which are available to Saskatchewan lawyers online through the Members Section of our website. Also available through the Members Section, and our shelves, is the Canadian Encyclopedic Digest volume on Conflict of Laws, which is cross-referenced to related case law in the Canadian Abridgment.

Internationally, the library maintains the current edition of the classic Dicey Morris and Collins book on The Conflict of Laws, published by Sweet & Maxwell in London. At a glance, I wasn’t sure how relevant this text is to Canadian legal disputes (unless they involve the British jurisdiction specifically), but it has been cited by Canadian courts over 400 times in CanLii, including in recent decisions by the Saskatchewan Court of Appeal and Supreme Court of Canada, so apparently it still carries some authority.

If you have any questions about the above, or have any recommendations about sources we should acquire or develop, please add your comments below, or otherwise contact us.

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

 

Oh, Microsoft, Apple and your ilk! You think you’re being helpful when you release new tools and updates, but you generally wreak more havoc than you bring clarity and certainty.

Herewith some views on some various writing ‘solutions’ (to use the lingo of Silicon Valley).

Auto-correct
I am a terrible typist, so in some ways a feature that automatically corrects obvious typos is a blessing.

But also a curse. The auto-correct feature that you get with the standard Microsoft products was not devised by lawyers, nor is it set up to work in a Canadian setting. It can also defy common sense and good English.

Microsoft Word thinks that tortious (relating to a civil wrong) must be tortuous (twisty), dislikes honour, offence and the like, assumes I mean paragraph © not paragraph (c), and insists I want 5th when I actually want 5th (the superscript is incorrect in legal citations, by the bye).

You can reset the language from US English to Canadian (or Caribbean, or Australian, or UK…) English, but that’s a bit fiddly to do – and what dictionaries are they relying on? If the word ‘Oxford’ isn’t in the title, it’s not a proper dictionary, to my mind.

The auto-correct feature that comes with Apple’s version of Microsoft is even more aggressive. And texting is worse: no wonder there is a website dedicated to frustrating (and funny) iPhone auto-correct failures.

Auto-fill
How many times have you sent an e-mail to the wrong person because some other name was automatically pulled out of your contacts or your list of previous recipients?

Often this isn’t really an issue (although your mother may wonder why you’re asking her to join the gang for drinks on Friday night), but if you’re a lawyer it can be very scary indeed.

Many a privileged e-mail has wound up with the wrong party as a result of the auto-fill feature, and that is clearly A Bad Thing.

Spell-check
Same comments as for auto-correct. No, I don’t mean cheese when I type cheque

In a legal document, you’ll end up with lots of wavy lines under technical terms or regional spellings which Word just doesn’t recognise. And your humble scribe hasn’t managed to figure out how to add a (correct) spelling to spell-check’s dictionary.

Use this feature with caution – it’s never a substitute for printing off a hard copy and doing some proper proofreading.

Microsoft Word Proofing
This is a bit buried. Go to the Review tab in the top toolbar in Microsoft Word, then Review > Language > Language Preferences > Proofing.

You’ll get a menu that allows you to select your auto-correct options (you can turn off the automatic correction of (c) to ©, for example).

You can also run a check of grammatical and stylistic problems or errors, including misused words, run-on sentences, sentence fragments, clichés, colloquialisms, gender-specific language, passive constructions, unclear phrasing and overly long sentences.

Another option is to get readability statistics – and I bet you most lawyers will get high scores for the number of passive constructions (which isn’t good).

A lot of subjectivity there, but at least you can accept or reject the suggested changes. It’s doubtful that the software is attuned to legal terminology, but it may help you avoid some obvious problems.

WordRake
This one isn’t free, but it may also be helpful. WordRake says it ‘tightens, tones, and clarifies your writing’ (like calisthenics for prose?), aiming for both ‘clarity and brevity’. By clicking  ‘the “rake” button … the in-line editor ripple[s] through your document, suggesting edits to remove clutter and improve unclear phrasing, just like a live editor.’

Sounds great! In a recent demo with a real lawyer’s document, WordRake picked up a lot of boring, passive constructions and suggested more concise alternatives to verbose phrasing. But it failed to pick up the (ghastly) facilitative and didn’t always handle idioms well. It won’t catch grammar and spelling errors.

Like all the other tools, helpful as far as it goes, but unreliable.

Next time: noun-fatigue

Neil Guthrie (@guthrieneil)

 

Today’s SLAW tip is short and sweet. If you’d like to see an overview of the current status of federal bills, the Parliament of Canada website has a handy table: http://www.parl.gc.ca/LegisInfo/LAAG.aspx.

Susannah Tredwell

 

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]