A short primer on what is called ‘point first’ writing.
You might be tempted to keep your reader in suspense about your conclusion or even the very subject of your blog post or client update, but that would be a mistake – you aren’t aiming to write a mystery novel or a cliff-hanging thriller.
Like most people, your client is busy and has a short attention span – so get to the point.
Point-first writing is also effective in memos, factums and letters.
Start with your conclusion and then explain how you got there. Begin by expressing the general rule, and then explain the exceptions. Open with the general, then give the specifics.
This will tell the reader what your piece is about, up front. He or she can then decide to read on, in order to get the details or the nuances. The reader can also decide to come back to your piece later (or not at all).
A clear sense of direction right from the opening line guides the reader: the last thing you want to do is force the reader to ask, ‘What’s this all about and where is it going?’
It’s also helpful to wrap up at the end with a restatement of your general point, to make sure the reader hasn’t lost the plot in the mean time.
Of all of my suggestions, I consider point-first writing the most important. Point first writing, more than anything else, will improve the clarity and persuasive of your writing.
State your point or proposition before you develop or discuss it. Do not write your factum like a mystery novel in which the conclusion is revealed only in the final paragraph, if at all. In other words, give the context before discussing the details. Indeed, point first writing puts into practice the principle of context before details. Point first writing should be used throughout your factum, both in the facts part and in the law part, and within those parts, in every section and in every paragraph. Whenever you are about to dump detail on the reader, give the reader the point of the detail first.
We see far too many factums that contain long meandering paragraphs, in which the point of each paragraph is never stated, or almost as bad, is stated three paragraphs later. This is not reader-friendly advocacy. You can fix this problem in these ways. At the beginning of the paragraph, tell the reader what topic or idea you are going to discuss in the rest of the paragraph. Try to restrict each paragraph to one main idea or topic. Then, in the first sentence or two of each paragraph, articulate the point of the paragraph, usually your conclusion or submission on the issue. The remainder of the paragraph will discuss the submission, elaborate on it, support it, or qualify it. This is point first writing.
Unfortunately, too many factums contain either point-last writing or no-point-at-all-writing.
Equally applicable to other kinds of legal writing.
Searches that look for all variations of a word can be helpful, but sometimes you need to search for a word or phrase exactly as spelled.
How you do this differs from database to database. In CanLII, use EXACT( ) around the word you are searching for, e.g. EXACT(AIDS). CanLII usually searches for variants of the word, but using EXACT will force it to search for exactly what you have specified.
Quicklaw and WestlawNext Canada both default to searching for both the singular and plural of a search term, rather than all the variants; this means you won’t get as many false hits as on CanLII. However, if you do want to search for an exact term, use singular ( ) or plural ( ) in Quicklaw (e.g. plural (AID) for AIDS) and use #term in WestlawNext (e.g. #AIDS). In Lexis Advance just use quotation marks (e.g. “AIDS”).
A pronoun is a word that stands for a noun. Example: ‘The guy [noun] I was talking to is a third-year associate; he [pronoun] works in the corporate department’.
That and who
These pronouns have distinct uses: that refers to things and who to people.
So don’t write this: ‘Thanks to all that came to the event’. It’s ‘all who came to the event’ (unless they were robots).
An entity is an it
Not a they. Thus, ‘The bank was subject to a class action alleging that it had overcharged its customers for foreign-exchange transactions’.
You may have read that the ‘singular they’ is now a thing. It’s a thing, all right, but it’s sloppy and incorrect (unless you’re referring to a specific transperson who prefers to be called they; that’s cool).
They must otherwise always refer to two or more persons or things. Where there is only one, and the sex of the person is unknown, logic and grammar demand he or she – or else some gender-neutral but grammatically sound construction.
For example: ‘The company is seeking a new marketing director. Anyone interested in applying should submit his or her [OR JUST an] application by Friday and make himself or herself [OR JUST become, with no pronoun] familiar with the company and its competitors’.
This is what’s called a relative pronoun, which tells us more about the noun it relates to (‘a lawyer whose time has come’) or asks a question about it (‘Whose book is this?’).
Ideally, whose should be used only in reference to a person, not a thing; of which is the logical construction for the inanimate. So, ‘the Securities Act, the purpose of which is to regulate …’ rather than ‘the Securities Act, whose purpose is to regulate …’
That can lead, however, to artificial and clumsy sentences: Fowler’s example in Modern English Usage is ‘The civilians managed to retain their practice in Courts the jurisdiction of which was not based on the Common Law’, which he says could usefully (and perfectly correctly) be changed to ‘whose jurisdiction’ (I’d also take the capitals off ‘Courts’ and ‘Common Law’, which are wholly unnecessary).
So if you haven’t always been using of which for the inanimate, you can relax a bit – but don’t get too casual.
Fundamentals – provides the fundamental framework of child rights including where they come from, what they are, who is responsible and the status of child rights in Canada.
The System: Cross-Cutting Themes – outlines available systemic child rights supports and tools and in particular independent human rights institutions and child rights impact assessments.
The Child: Cross-Cutting Themes – highlights subjects that may be applicable to the child or a group of children you work with that transcend all areas of the law, such as Charter rights, best interests of the child, child participation, legal representation and freedom from all forms of violence.
Legal Areas – provides four steps to implement a child rights based approach in practice as well as child rights information and law in specific legal domains such as child protection, family law, youth criminal justice, and immigration.
Each of these opens up an in-depth commentary with labyrinth links to international conventions, federal and provincial legislation, major case law, policy documents, and articles.
Three years in the making, and developed by a long list of content experts, CBA staff, and steering committee members, this toolkit is well worth a good look for anyone involved in the rights of children in Canada or internationally.
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
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).]