This is intended mostly for the baby-boomers out there.
If you’re writing a client piece, it’s often tempting to jazz things up with a reference to sports, popular music, TV or movies.
This can be effective, both in conveying an image and in making the writer look human (which isn’t always easy in legal writing). There are some pitfalls, however.
Those born before 1965 may have to come to the shocking realisation that there is a now a generation for whom The Beatles are just some old band their grandparents bore on about.
Trying to look hip can also backfire, as the current mayor of Toronto found out when he lauded Kanye West as a ‘proud product of our music industry’. Whatever his other foibles, the late Rob Ford probably wouldn’t have made the same mistake.
I know the day will come when my Advanced Legal Research and Writing class fails to recognise The Smiths. This is inevitable but regrettable, not only because they helped to define my late adolescence, but also because the band’s squabble over money is a such a nice illustration of basic principles of partnership law (see Joyce v Morrissey, (1998) All ER 556 (CA), and a rather different account of the facts in Morrissey’s Autobiography (2013)).
Sports references can be vivid, but also problematic. American writers make the mistake of assuming that the entire world loves baseball as much as they do. (The term ‘World Series’ appears to originate not from the sport’s purported global reach but from early sponsorship by the New York World newspaper.)
By the same token, Canadians may want to avoid too many hockey references if they have potential readers in Australia or Hong Kong – or Canadian readers who grew up in cultures in which the dominant sports aren’t hockey and (North American) football, but cricket or (what the rest of the world calls) football. Many Americans will not have played games that involve the offside rule, so using offside to describe improper behaviour may give rise to blank looks. Female readers may (but may not) be put off by sports analogies of any kind.
And we’ve all met that tiresome guy (and it is usually a guy) who can repeat whole episodes of Monty Python, Seinfeld, The Simpsons … Remember that not all who read your client piece will have seen the particular episode you find hilarious (or if they have, have found it hilarious).
It’s best to stick to references that everyone will get. No easy thing.
If you’re having difficulty finding the amendments made to an act by another act, make sure you’re consulting the original act rather than the consolidation. Consolidations generally omit amendments to other acts.
For example, the new British Columbia Societies Act made changes to a number of acts including the Business Corporations Act. If you wanted to see the text of those changes, you would need to look at the text of the Societies Actas it read initially rather than in its consolidated form.
H.W. Fowler refers in Modern English Usage to the ‘misshapen brood’ of bi– words that are used to describe the frequency of intervals: biannual, bi-monthly, bi-weekly and the like.
The problem with them is that they are ambiguous: bi-weekly, for example, can mean either twice a week or every two weeks. At least a biennial (like the Biennale art exhibition held in Venice) is always held every two years, not twice in one.
Careful drafters of contracts will obviously want to make things perfectly clear, especially when dealing with dates of payment obligations and the like. And even non-contractual writers may wish to avoid uncertainty.
There are some options to avoid the ambiguity of bi–. Semi-monthly is clearer than bi-monthly, if you want to say that something is to occur twice in any given month. But both words are what Fowler calls ‘ugly hybrids’. Fortnightly is an option, if you’re OK with sounding very British. Or you could just say twice monthly, every two weeks or every other week. Fowler’s proposal to adopt half-monthly doesn’t appear to have gained much traction, but you could try it – and you wouldn’t be misunderstood.
If you’re old enough, you’ll remember Canada’s centennial in 1967 and the bicentennial of US independence in 1976. In the UK, these would have been centenary (pronounced cen-TEEN-er-ee) and bicentenary (bye-cen-TEEN-er-ee).
When Toronto celebrated the 150th anniversary of its incorporation back in 1984, someone dredged up sesquicentennial, a word that doesn’t appear to be used all that much. It did engender a twee squirrel mascot called Seskwee (although it wasn’t black in colour like the characteristic Toronto rodent).
The federal government, wisely, did not try to figure out the Latinate term for the 125th anniversary of Confederation when that occurred in 1992. (The unwieldy quasquicentennial has been suggested.) Instead, the feds opted for Canada 125, universally called Canada one two five (perhaps a deliberate echo of the colloquial term for a case of beer). Canada 125 made up in clarity what it lacked in imagination – and, predictably, we are approaching what is officially being called Canada 150.
But perhaps we still have the dodransbicentennial, dodrabicentennial or possibly dequabicentennial of Confederation to look forward to in 2042 – with Dodra or Dequa the beaver as mascot?
Once every thousand years. Also, now, used to refer to the much-maligned generation that came of age around the dawn of the new millennium – although millennial is often used for anyone born somewhere between the early 1980s and the early 2000s.
Note: spell millennial and millennium with two Ls and two Ns. Millennia (and centuries) begin in years ending in 1 (2001, not 2000), by the bye; there was no year 0.
Next: keep your cultural references current and universal
Feeling respect and regard for your readers is important, but this edition is more specifically about words and phrases derived from respect and regard.
Regard and derivatives
First, regards as opposed to regard.
Regards are what you express, typically at the end of a letter or e-mail, in order to sound friendly; but as your humble scribe has previously said, you could usefully dispense with them altogether – they add nothing (see ‘Beginnings and endings‘).
In any event, do NOT say with regards to or in regards to. Here, the correct word is regard (singular). Better yet, just say about or on.
Irregardless is not a word (or at least not in the standard English you want to be using): you mean regardless (or perhaps irrespective).
Respect and derivatives Respect can be used like regards, to express esteem for another person. In professional writing , this may sound a bit too Ali G (‘Massive respect …‘).
When you disagree with someone, you should also avoid that leaden opener With respect …, which usually indicates that the writer has anything but respectful thoughts about the reader.
The adverb respectfully is just as bad, if not worse. Use it in a factum if you must, but don’t lard the thing with it. As Justice Laskin has said: ‘Avoid using the phrase “it is respectfully submitted” more than twice in your factum. […] Repeated too often, this phrase disrupts the force and flow of your argument’. It also sounds pompous and old-fashioned.
In a legal setting, try to confine respect to these two phrases: with respect to and in respect of. But here again, you’re better off going with a simpler construction entirely, like good old about. And to say respecting in this sense looks like you’re writing with a quill pen.
Respectively is frequently misused. It needs to connect items in one list with their counterparts in a second list in the same sentence. Fowler’s Modern English Usage entertainingly lists five types of incorrect use, but space doesn’t permit full discussion here.
This is wrong: X, Y and Z respectively guarantee Z’s obligations.
This is correct: X, Y and Z shall not make capital expenditures in any fiscal year in excess of $5 million, $3 million and $1 million, respectively. [Examples adapted from Ross Guberman and Gary Karl’s Deal Struck: The World’s Best Drafting Tips (2014).]
I keep a running list of these, jotting them down as I see or hear them. (You’re on notice.)
The both of you/us
Adele may sing in ‘Hello’ about ‘thuh B-O-O-O-O-TH of UH-UH-ss’, but don’t you be doing it.
It is both of you and both of us, with no definite article – not even when it’s from the UH-ther SI-YIDE.
There is no such thing in law. You mean an English case (or perhaps a Scottish one).
(Great) Britain, which came into being when James VI of Scotland inherited the English throne on the death of Elizabeth I in 1603, consists of England (and Wales) plus Scotland. England and Scotland have separate legal systems and courts, so there can never be a British case: it’s either English or Scottish, but not both; British is not synonymous with English. (And it’s Great Britain to distinguish it from that lesser Britain, Brittany in France.)
I suppose there could be a UK case, since the United Kingdom Supreme Court hears appeals from all the constituent parts of the UK (Great Britain plus Northern Ireland), and the law lords make it clear when a judgment is applicable to all of the parts (as in Donoghue v Stevenson, a Scottish case the House of Lords did not confine to Scots law). But it’s purer to describe cases by their jurisdiction of origin.
All of this may unravel in the wake of Brexit, however…
This always suggests coleslaw to me.*
It isn’t statutelaw, commonlaw or customarylaw, so why would it be caselaw?
As The Solicitor General’s Style Guide, 2d ed (Washington, DC, 2015) uncompromisingly puts it, caselaw is a ‘barbarism’ requiring ‘total extirpation’.
It’s case law (add a hyphen to make that an adjective: case-law research).
This doesn’t always have to have a hyphen after it.
It’s mid-year review, because you’re making a compound adjective out of mid and year; but it’s I’ll see you in mid March (no hyphen). You don’t write I’ll see you in early-March or I’ll see you in late-March. Ergo…
Seven days notice
That’s an Apostrophe Catastrophe™ if ever there was one! It needs to be seven days’ notice, obvi.
There are two English words that mean the same thing: until and till. ‘Til, an unnecessary modern variant of the latter, must (like caselaw) be exterminated.
One challenge with legislative research is when you need to find an older act that, although still in force, has not been included in the last statute revision. The most obvious examples of this are private acts, but there are other pieces of legislation that fall into this category.
If you are looking for an older federal act and cannot find it in the 1985 revision you should check the Table of Private Acts and the Table of Public Statutes and Responsible Ministers. The Table of Public Statutes includes “a certain number of public Acts, passed before January 1, 1985, that were not consolidated in the Revised Statutes of Canada, 1927, 1952, 1970 or 1985.” For example, you can see that the Canada Shipping Act, R.S.C. 1970, c. S-9 is listed in the Table of Public Statutes, despite not having been consolidated since 1970.
The next step is to find the full text of the act as it currently reads. In some cases you may find you have to consolidate the act yourself using the original act and its amendments. In others you may find the jurisdiction already provides a consolidated version. For example British Columbia provides consolidations of a number of private acts.
I refer here, not to Nancy Mitford’s use of these terms in Noblesse Oblige (a very funny if dated guide to the sociolinguistics of the English class system, circa 1955*).
I mean the troublesome letter U that divides US spelling from UK. As ever, Canada (British North America?) falls somewhere betwixt.
The basic pattern
Let’s start with honour/honor as typical.
The word comes from Latin, which spells it honor without a U. The word came to English via the Normans (1066 and all that), which meant that when it became acclimatised in England it retained the U of the French honneur.
Noah Webster, the nineteenth-century American lexicographer, wanted US English to be closer to its roots in (republican) Rome, so promulgated the non-U spelling that has stuck in the Untidy States ever since.
Canadians, originally more British than Yankee, tended to go with Britannia’s honour rather than Uncle Sam’s honor — but one now sees both spellings north of the 49th parallel. The dominance of US spelling in all things computer-related is wearing away the Anglo; the default settings for spell-check and auto-correct are invariably US English, not our Canuck variant. If you haven’t, please change this; it’s often these little cultural things that really make us different from our neighbo(u)rs to the south.
Honour begets honourable, and honor honorable.
That much is easy. But you would be deluding yourself if you thought English spelling followed regular rules.
Honour, labour etc. weren’t always the invariable British spellings. The Elizabethans would often leave out the U if they were feeling Latinate: Shakespeare’s play was originally published as Loues labors lost not Love’s Labours Lost. Certain words were routinely spelled with a U until the late 1700s (governour, horrour) but have now lost it.
And in modern British/Canadian English (as in the US), the correct form is honorary, not honourary — although in Canada one often sees the latter on the part of people who are so keen to wave the maple-leaf flag (or perhaps the Red Ensign) that they ignore (or don’t know) what’s correct.
The Yanks are not immune to this either: a number of years back, Ralph Lauren launched a perfume called Glamourous with an extra (but incorrect) U that was presumably intended to make the product look British, posh and … er … glamorous.
Similarly, one correctly writes colour, colourful, colourise/colourize and colourist but coloration; odour but deodorise/deodorize; humour but humorous; vapour but vaporise/vaporize; vigour but invigorate.
No one said it was easy.
Next: miscellaneous little things that annoy me, part 2
*In that book, U stands for ‘upper class’ (napkin not serviette, died not passed away etc.)