All Our Research Tips
Shall, Will, Should, Would, May, Might, Must
A reader’s suggestion, this. Good idea, even though it’s more of a contractual drafting or opinions point than a general legal writing tip.
Shall, will and must
The difference is to a large extent idiomatic – that is, subject more to instinct and feel than hard-and-fast grammatical rules. Usage has also changed over the centuries, and varies between North America and Britain. What follows is a distillation, as best I can manage.
In classic usage, shall is used in the first person (I, we) to indicate a wish or ‘mere futurity’. To say I will or we will indicates an element of intention, volition or choice. So, I shall probably be there but I will never do that.
In North America, I shall and we shall are less commonly heard in the ‘mere futurity’ sense, leaving will to perform both that function and to express stronger intention. This gives rise to ambiguity, because we lose the potential distinction between will and shall. (And shall sometimes performs for us the classic will function, as in We shall overcome.)
In the second person (you) and the third (he, she, it, they), shall takes on the function of command, menace or refusal: You shall repent! or He shall never have any, if I have anything to do with it. Also, Thou shalt not steal, to use the old singular second person (equivalent of tu in French or du in German, as opposed to the plural (or formal singular) vous and Sie.)
In legal drafting, shall is usually used to express a third party’s positive or negative obligations: the Purchaser shall assume all liabilities … Here, shall is synonymous with ‘is obliged to’ or ‘has a duty to’ – command or menace at work. There are arguments that will, if used consistently, would also work: it’s hard to see much of a difference if you said the Purchaser will assume all liabilities – except that shall sounds a bit bossier. But convention (and traditional grammar) are on the side of shall here.
In common parlance must is close to shall in meaning: you must not hit your brother, you shall do this or that. And yet they are not synonymous; in contractual drafting, for example, must often takes on a conditional character: the Borrower must satisfy the following – that is, must do so in order to do something else, but need not.
Should and would
Should is the conditional form of shall. Its use in the first person has all but disappeared from North American usage, but it is classically correct to say I should like to go as a mere expression of desire, and as distinct from the imperative would (I would go, but I can’t).
When used in relation to other people, should is less bossy than shall; it means ‘ought to’, as in you should wash your hands after travelling on the subway. Not dictatorial, if perhaps a bit passive-aggressive.
Should, in opinion-writing, is seen as more qualified than would (this should work as opposed to this would work). William Estey suggests, however, in his book on opinions, that it’s unfair to place the burden on a client to figure out the shades of meaning between the two (and all the other ways we lawyers hedge our own bets). Fair point?
There is also should in this type of construction: Should you wish to leave a message, please do so after the tone. Not incorrect, but fusty – or perhaps fancy for the sake of being fancy. If can always replace should in these instances. Better yet: Please leave a message.
May and might
These can mean the same (or almost the same) when they express possibility: I may go to the party, I might go to the party.
May also expresses permission: ‘You may not go to the party’, the parent told her teenager.
Because of this dual use of may, caution is advised. Avoid using it for negative obligations, since may not could mean either ‘is not permitted to’ or ‘might not’. Better: shall not. In contractual drafting, confine may to the meaning ‘reserves the right to’.
Next time: and/or, and, or.
–Neil Guthrie (@guthrieneil)
Read the Original Source
In training sessions we always advise articling students to start off their research using secondary sources. While there are instances where it is appropriate to start off research by searching case law and legislation, using secondary sources generally is far more time-efficient since it usually tells you what the relevant legislation and leading cases are. However once you’ve found a reference to a case that appears to be on point, you should not just rely on the summary, but actually read the case. We’ve run into more than one instance where the summary said something quite different from what the case actually said.
— Susannah Tredwell
You Can Quote Me
First off, the verb is quote and the noun really should be quotation – but I would be fighting a pointless rearguard action in trying to stop people from talking about a quote.
Single and double quotation marks
In the UK, single quotation marks (usually called ‘inverted commas’) are the default, with anything quoted within a quotation going in double quotation marks, like so: She said, ‘The bus driver told me, “You can’t bring such a large animal onto the bus, madam”, but in the end he let me.’
In the US, the position is reversed: double quotation marks to start, single for internal quotations.
Take your pick, but be consistent.
Here again, the Atlantic is the great divide. In the US, all punctuation goes inside the quotation marks, whether it forms part of the quotation or not. In the UK, punctuation goes inside only if it is an actual part of the words quoted (see the example in the previous section).
Quotation marks for special terms
Quotation marks can also be used to ‘to signal that a term is being used in a non[-]standard, ironic, or in another special sense’ (Chicago Manual of Style (2010)).
They can, for instance, be a substitute for so-called: For ‘lunch’, we were given some stale crusts and a glass of flat ginger ale.
Quotation marks are also often used where the term is (or is seen to be) newfangled, a bit slangy. By way of example, I hear that the young people are ‘tweeting’, whatever that means.
Do all of this very, very sparingly – and avoid the trap of thinking that metaphors somehow require quotation marks. There is no need to write The judge ‘pierced the corporate veil’. Even persons of fairly limited intellect will understand that we aren’t talking about an actual veil here. It might be better, in any event, to educate a non-lawyer about disregarding the separate legal personality of a corporation, but without using insider terminology.
For examples of the overuse of quotation marks, see this highly entertaining blog.
US law reviews seem to think that quotation marks for special terms should be single, to differentiate them from actual quotations (which go in double quotation marks), but I can find no real basis for this. This looks like a case of editors creating rules for the sake of it.
If your quotation is long (more than, say, 40 words?), offset it as a centred block of text with wider margins than the main text. Because you have done this, there is no need for quotation marks around the quoted excerpt: you’ve already indicated that it’s a quotation.
Don’t assume anyone will actually read your long excerpt, however. The tendency is, in fact, to skip over big chunks like this (and, perhaps, for the reader to think you were just too lazy to paraphrase or summarise). You therefore need to explain what is to follow.
And don’t end your paragraph or section or piece with a block quotation – it’s usually more effective wrap up in your own words.
1L students quickly learn to do this, when quoting part of a sentence: ‘[A]ctions speak louder than words’ (‘actions’ not having a capital A in the source, but needing one in the writer’s sentence). Only lawyers do this, and 99 times out of a hundred it’s unnecessary. Especially in a client piece.
Square brackets are useful to supply missing things (punctuation, words), make editorial comments (‘[that is, disregard the separate legal personality of a corporation]’) or indicate omissions (‘[…]’) – but you could omit the brackets and just use the ellipsis). Try not to use square brackets too much; they are hard on the eye and may disrupt the flow.
Next: shall, will, should, would, may, might, must
–Neil Guthrie (@guthrieneil)
4 Questions to Ask About Any Database (Part 2)
This is part 2 of a series on questions you should ask about any electronic research source. See part 1 of this series here.
2. What constitutes a RECORD?
What are the individual things the database consists of?
Some case law databases, like Saskatchewan Cases or the Canadian Abridgment, consist of summaries or digests. Others, like CanLII, consist of primary law – judgments and legislation. In others, such as the case law components of Quicklaw and WestlawNext, you can search a combination of summaries and full-text documents. Knowing if you are searching a short summary or full-text decision is very important in formulating your search.
The Saskatchewan Bills database has a unique scope. Each record constitutes a Saskatchewan statute that was affected – created, amended, or repealed – by a Saskatchewan bill. So note that although the database is called “Bills,” the individual records are not bills but statutes, as they were affected by the bills. Thus, there will be a separate record each time a statute is amended, and separate records for each statute affected by single bill. This sounds a bit complicated, but users of the database will agree that there is tremendous advantage to this structure when conducting statutory research.
Coming soon: part 3!
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
Beginnings and Endings
Openings and closing of business correspondence, that is.
My father, an old-fashioned lawyer if there ever was one, once said there are only two ways to start and close a business letter: either Dear Sir/Yours faithfully or Dear Mr So-and-so/Yours truly, depending on one’s level of acquaintance with the recipient. (And not very truly: one is true or one is not, no more no less.)
There is a certain simplicity to that, and it can be made female-friendly without difficulty. My own views follow.
Younger folk appear to have this strange view that ‘Dear’ at the start of a letter somehow suggests an affectionate relationship is being claimed.
Dear Sir is a little warmer than just Sir, but it’s by no means touchy-feely (Dear Sir, Your account now being considerably in arrears, …). That said, Dear may look a bit old-fashioned in a more casual e-mail, where Hello Neil or Hi Neil seems largely to have displaced Dear Neil. I would confine the hi and hello business to purely casual exchanges, however, and inject more formality into an e-mail message that contains considered legal advice.
Dear Mary in a business letter? If you want – but a more elegant way to do it is to type Dear Ms Wang, cross that out in pen and write in her first name. In England, it’s usual in business letters to leave out the salutation and the Yours truly bit entirely, leaving blank space which the writer fills in by hand, with whatever degree of formality seems appropriate.
If you are at the Dear Sir level, the female equivalent is Madam. Not Madame – although the plural of Madam (in this context) is Mesdames not Madams (which is the plural form for women who run brothels).
One sometimes used to see Gentlemen as a substitute for (Dear) Sirs in letters addressed to a firm in general (typically, opinion letters). The gender-neutral equivalent really should be Dear Sirs and Mesdames; the formulation Ladies and Gentlemen that people sometimes use has (to me, anyway) an air of the circus tent to it (Ladies and gentlemen, boys and girls! the greatest show on earth!).
I think my father is correct that these should be on the formal side. Save (Yours) sincerely for social correspondence.
And, if I could, I would banish regards of all sorts (kind, warm, best, fond, whatevs). You’re never going to send regards that are unkind, lukewarm, worst, not quite best – and is it really necessary to send them in the first place? I confess, though, that I do sometimes add Best wishes or just Best if the e-mail needs to sound a bit friendlier – but I cringe inwardly while doing it. For a compelling case to omit all of this sort of stuff, see this article by Rebecca Greenfield of Bloomberg Business.
Similarly, avoid worn-out and meaningless phrases like Please do not hesitate to contact me … The reader may well be inclined to think ‘of course I won’t hesitate – what sort of shrinking violet does she think I am?’ – or alternatively, ‘I’ll hesitate if I bloody well want to; you charge by the hour and I’ll only get in touch if necessary, since everything is on the clock.’ Either way, it’s useless.
Always include a standard signature block in e-mails that are going to external parties. It’s useful to include relevant professional information, like links to your LinkedIn profile and Twitter feed.
Beginnings and endings
I don’t put a comma after Yours truly and the like. I also omit one (or a colon) after Dear So-and-so at the top of a letter. More modern, cleaner typographically, no loss of sense.
Next time: you can quote me
–Neil Guthrie (@guthrieneil)
Finding Labour Arbitration Decisions
One difficulty with finding labour arbitration decisions is a lack of uniformity in the style of cause; sometimes the union’s name may be fully spelled out, other times it may be abbreviated, or it may be omitted altogether and the name of the griever used. As a result, it can be faster to find a decision by searching by arbitrator’s name and the dates rather than the party names.
CanLII, Quicklaw and WestlawNext all carry labour arbitration decisions, although their coverage varies. You can find them in the following databases:
- All Labour Arbitration Awards database
There are two types of labour arbitration decisions: grievance arbitrations and interest arbitrations. Grievance arbitration is “a mechanism to resolve disputes about the interpretation and application of a collective agreement during the term of that agreement” whereas interest arbitration refers to “a mechanism to renew or establish a new collective agreement for parties without the right to strike/lock-out”.
Section 59 of the Canada Labour Code states “A copy of every order or decision of an arbitrator or arbitration board shall be filed with the Minister by the arbitrator or arbitration board chairperson and shall be available to the public in circumstances prescribed by the Governor in Council.” However, this only applies to grievance arbitrations and there does not appear to be an equivalent requirement for interest arbitrations under section 79 of the CLC.
Similarly, section 96 of British Columbia’s Labour Relations Code states that “An arbitration board must, within 10 days of issuing an award, file a copy of it with the director who must make the award available for public inspection.” British Columbia’s Collective Agreement Arbitration Bureau then forwards the decision to various agencies for public access.
— Susannah Tredwell
Miscellaneous Little Things That Annoy Me
Oh, so many of these – but I’ll mention just a few (for now).
No. It’s one word in modern English: cannot. And when you say it, the emphasis is generally on the first syllable.
Spell-check thinks this always has to be one word. It doesn’t. As a single word, it means ‘former’: Bob Sharpe, sometime dean of law at U. of T., is now on the Ontario Court of Appeal. But Let’s have coffee some time and At some time in the future, we’ll see … (I acknowledge, however, that current usage may be against me on this.)
Drop the of! It’s unnecessary and incorrect. So just this: outside the house, outside Canada, outside the realm of possibility etc. Same goes for inside.
The reason is because …
No! The reason is that… Always, always, always.
A couple things
Wrong! It must be A couple of things (even though you would correctly say a few things—who said English was regular?)
As in, Should we meet prior? A construction I’m hearing a lot, and one that is irritating me. Prior here needs to be followed by to and something more (prior to doing XYZ). If you’re tempted to use prior on its own, substitute earlier, before or previously.
As an adjective, prior is fine (prior testimony), but remember that good old rule of thumb that a word with Anglo-Saxon roots (like earlier or before) is more forceful and direct than one that comes to us through Latin or French (like prior or previous). To give you an example, compare the fancy, Latinate words copulate and defecate with their one-syllable Anglo-Saxon equivalents. The latter certainly pack more of a punch.
Consider it to be X/find it to be X
This isn’t actually wrong, but it’s inelegant. Better just to find something X. I find him boring has a better ring than I find him to be boring, no?
Take off the final L. And it’s fulfilment. Only two Ls in wilful too.
Did you want milk or cream with that?
I did want milk, and I still do. Or maybe I’ve changed my mind.
Or maybe you should use the conditional (Would you like milk or cream?) or the present tense (Do you want …) instead of this weird, incorrect use of the past tense.
Don’t even get me started on its annoying use as meaningless filler in speech, particularly by those under 30.
What I hate in a written context is like in the past, like in the movies, like in the recent decision, like I said. What you mean is as not like. Reserve like for like me, like a virgin and the like (like plus noun or pronoun without a verb attached, or an adverb like so).
Next time: beginnings and endings
–Neil Guthrie (@guthrieneil)
4 Questions to Ask About Any Database (Part 1)
Whenever you set out to use any electronic research source, be it a public web search or a specialized database, there are a few questions you should always ask – four to be exact. You may say there are really five or six important questions, or maybe you think there are only three, and that’s ok. But for me, not three but four is the magic number.
So here are my four questions you should always ask, with examples drawn from some of our favourite databases.
1. What is the SCOPE of the database?
Or what is its reach? How would you describe the collection of documents? What topics are covered? How current, how far back in time? What is the geographic extent of the database and what languages are used?
For an Internet search engine such as Google, the scope is all documents within the reach of its automated web-crawling indexer. But for most sites, the scope is limited by subject, geography, &/or time. For some, such as our Saskatchewan Cases database, the user should have a pretty good idea, based on the title, that the scope is limited by geography and subject matter. But what about time? For that we have a scope note conveniently located in the lower-right corner of the search page. For a complex system of databases like CanLII, the scope note is myriad.
For some online services, such as our Find a Lawyer search, the scope is rigorously monitored and crucial to the database’s usefulness. There is one record for every active (practicing) member of the Law Society of Saskatchewan. It is updated instantly. If a record exists, then that person is an active, licensed lawyer in Saskatchewan. If there is no record, then that individual is retired, suspended, inactive, or otherwise not a currently practicing lawyer in the province.
Stayed tuned for question #2!
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
Colons and Semi-Colons
This week, you get a full colonic!
Sorry, couldn’t resist that.
Actually, full treatment of this subject is beyond the scope of a brief piece, but here are some basics.
The colon (:)
The colon is most frequently used to introduce a list of items, but it can often be omitted. There is no need for a colon in the following sentence:
The syndicate of lenders consists of: Bank of Montreal, Bank of Nova Scotia and TD.
The colon is correctly used after the word ‘sentence’ just before the example; it introduces what is to follow, where that doesn’t just flow naturally from the earlier part of the sentence. As H.W. Fowler put it, the colon ‘delivers the goods that have been invoiced in the preceding words.’
The colon can also be used to great effect in what Fowler calls ‘gnomic contrasts’. For example:
Man proposes: God disposes.
Do this sparingly: over-use dulls the effect.
The colon can also be used to introduce a quotation, generally where the context is not conversational (The witness stated: ‘Blah blah blah’.).
The semi-colon (;)
Also used with lists, but to separate items that have internal commas. Like so (assuming for the moment that we’re still using 1990s names and punctuation):
The following firms were represented: Osler, Hoskin and Harcourt; Stikeman, Elliott; and Blake, Cassels and Graydon.
Confusion might arise if the semi-colons were absent (and you didn’t know which names went with which). Note the effective use of a ‘serial’ or ‘Oxford’ semicolon before and; but where this isn’t necessary in the interests of clarity, I’d omit it.
The semi-colon can also be used to break up long, convoluted sentences that contain lots of subordinate clauses and commas – but it’s doubtful that you want to write in a prose style reminiscent of a nineteenth-century novelist, right?
A good use of the semi-colon is to connect two units which could be separate sentences, but which are logically linked. Using a comma would make this a run-on sentence (which is bad):
I couldn’t think of a single thing to say; situations like that leave me at a loss for words.
The bit after the semi-colon doesn’t so much complete the thought in the first part as explain or describe it. The semi-colon offers a softer and less abrupt break than a colon; it’s only half a colon, after all.
Next week: miscellaneous little things that annoy me
–Neil Guthrie (@guthrieneil)
Grey Literature: Our Favourite Sources and Suggestions
This article was originally published in the November 2016 edition of Wired West.
At the recent 2016 SLA conference in Philadelphia, one of the most popular sessions was Hidden Treasures: Mastering Grey Literature. This session was co-sponsored by the Science-Technology Division, the Social Science Division, and the Taxonomy Division. A panel of speakers from institutions such as Cornell University and the Canadian Library of Parliament spoke about their favourite sources for grey literature. Inspired by that presentation, we have assembled here a very Canadian primer on grey literature.
For the uninitiated, Wikipedia offers a very accessible definition for this field of literature:
Grey literature … are materials and research produced by organizations outside of the traditional commercial or academic publishing and distribution channels. Common grey literature publication types include reports (annual, research, technical, project, etc.), working papers, government documents, white papers and evaluations. Organizations that produce grey literature include government departments and agencies, civil society or non-governmental organisations, academic centres and departments, and private companies and consultants.
Grey literature may be made available to the public, or distributed privately within organizations or groups, and may lack a systematic means of distribution and collection. The standard of quality, review and production of grey literature can vary considerably. Grey literature may be difficult to discover, access and evaluate but this can be addressed through the formulation of sound search strategies. (Wikipedia)
In our own work, we have had ample opportunity to help clients dive deep into research topics through grey literature. Grey literature can be especially important when the client has budgetary constraints and limited access to specialized subscription-based databases. It can also be helpful when addressing either a very old or very new topic. New topics may not yet have been addressed by academic journals due to the long lead time required for vetting and publication. Older topics may no longer be addressed by current publications on the topic and relevant commentary may only be available through digitization of archived materials
We provide a short list of our favourite sources here:
Social Sciences Research Network
The Social Science Research Network (SSRN) is an open repository “devoted to the rapid worldwide dissemination of social science research.” It includes a wide range of free content, including abstracts for working papers and forthcoming papers, article preprints, and conference papers. SSRN is comprised of twenty-four research networks representing various branches of the social sciences—accounting, law, leadership, marketing, and political science, to name just a few. The Network was acquired by Elsevier in May 2016, but insists it remains committed to keeping content free to submit and download.
Google or Google Scholar
Google has the ability to capture high-value commentary that may not be published elsewhere. Increasingly professionals and academics are being encouraged to blog about their topics both as a way of spreading knowledge and engaging in business development. For example, the Cornell LII blogs and Mondaq.com offer academic and lawyerly commentary on current events intersecting with the law.
The academic offshoot of Google, Google Scholar, is a rich source of grey literature from government agencies, professional societies, digital repositories, and post-secondary institutions. While access to some full text content is restricted by publisher paywalls, the “all versions” feature can help researchers locate related working papers, article pre-prints, and the like. Researchers may find Google Scholar less helpful for recently published materials, as its algorithms tend to favour older content.
Federal Government White Papers and Green Papers
White papers are official documents presented by Ministers which explain the government’s policy on a certain issue. In contrast, green papers are issued by government to invite public comment on an issue prior to policy formulation. These two terms are also used interchangeably at the provincial level. This federal repository managed by the Library of Parliament includes links to PDFs of many of the papers and fulsome indexing information at the very least. For equivalent papers issued at the provincial level, there is no one repository, however searching via GALLOP, listed below, is a good first step.
GALLOP Federated Search Portal
GALLOP is a federated search portal covering provincial legislature libraries, such as BC’s Legislative Library. The scope of coverage is detailed here. Many of these libraries include download links to PDFs of some materials in their collections. Materials held by these libraries often include reports relevant to public policy or government-authored documents about the implementation of public policy.
University Repositories, Such as cIRcle at the University of British Columbia
cIRcle is described as “an open access digital repository for published and unpublished material created by the UBC community and its partners. Its aim is to showcase and preserve UBC’s unique intellectual output by making content freely available to anyone, anywhere via the web.” You can search the repository using the search box in the middle of the homepage, or from the advanced search form, here. During the SLA conference session on this topic, Jim Del Russo of Cornell University Library also shared this link to DigitalCommons@ILR, the repository at Cornell.
The sources we’ve listed above are an excellent starting point for a Canadian librarian or researcher; however, should you need to engage in international grey literature searches, we encourage you to consult a university research guide on grey literature from the country or area in question. For example, the University of New Mexico offers a grey literature lib guide with an american health sciences emphasis, while Curtin University in Perth, Australia offers an Australia-specific guide to grey literature. Another good all-purpose American lib guide on grey literature is this one, from the University of Michigan.
— by Bronwyn Guiton & Lindsay Tripp