All Our Research Tips
Noting Up US Case Law in Canada
It is straightforward to find out out how a Canadian case has been subsequently treated by Canadian courts; all you need to do is note it up on Quicklaw, WestlawNext Canada, or CanLII. However sometimes you need to find out if a US case has been mentioned in the Canadian case law and this is slightly more challenging to do.
The easiest way to note up a US case in the Canadian case law is by a Boolean search for the names of the parties and any citations for that case. For example, if you were trying to find out what Canadian cases had referred to Hiscott v. General Electric Co. (1975), 521 F. 2d 632, you might use the search string (Hiscott /4 General) OR “521 F. 2d 632”.
Depending on how common the names of the parties are, you may have to make the names used in your Boolean search more specific.
— Susannah Tredwell
Some Contractual Terms
I generally stay away from drafting issues, but thought I’d mix things up a bit.
Depositary and depository
Depositary in US contracts has always seemed wrong to me. Shouldn’t it be depository?
No, in fact. The two words, while ‘often confounded’ (as the Oxford English Dictionary Online puts it), mean different things.
A depositary is ‘a person [natural or otherwise] with whom anything is lodged in trust; a trustee; one to whom anything (material or immaterial) is committed or confided; …a bailee of personal property, to be kept by him for the bailor without recompense.’
A depository, on the other hand, is ‘a place or receptacle in which things are deposited or placed for safe keeping; a storehouse, a repository’.
So a depositary must be a person (including an artificial one at law) who holds onto things for you, while a depository must be a place or thing where or in which you put things.
I take some comfort, however, from the knowledge that depository used to be used of people too (but not since about 1878).
Indemnitor and indemnitee
Please, no. These are recent American coinages, and not attractive ones. Just say indemnifier and indemnified (or indemnified party).
There is no need for the faux neo-Latin and the clunky –ee back-formation.
It could be worse, however: the Oxford lists indemnificator – but says it’s ‘rare’ (only one example of usage, from 1827).
Whereas and witnesseth
I agree with Ross Guberman (Deal Struck: The World’s Best Drafting Tips (2014)) that these terms in contractual recitals are ‘substantively harmless’, but unless you’re drafting on parchment with a goose-quill, don’t use ’em.
Next week: confusing pairs, part 5
–Neil Guthrie (@guthrieneil)
Law Reviews, Journals, and Newsletters on CanLII
Over the past few months, CanLII has been rapidly growing its collection of secondary sources, which now includes law reviews, journals, and newsletters. For more information on what’s available, see the Law Society of Saskatchewan’s recent posts:
Hat tip to the Legal Sourcery Blog for keeping tabs on these developments!
Oh, With the Verbing!
Professor Frink says this on The Simpsons, but don’t you do it.
In simple terms, a verb is an action word. Sometimes there doesn’t seem to be a good verb available to express a particular action, so it may make sense to adapt a noun or some other word.
This is often fine, but often not. Herewith, some of the pitfalls.
Noun as verb
In The Sweet Smell of Success, the 1957 film noir classic, Burt Lancaster’s character holds up an unlit cigarette and says ‘Match me, Sidney!’ in a particularly venomous speech directed at Tony Curtis.
An effective and memorable phrase – but other examples of verbs made from nouns are less happy inventions.
We can do without all of the noun-verbs on the list that follows. Some may save you a word or two, but they add nothing useful and they are weaker than what they seek to replace.
action [how about act, take action, implement or just plain do?]
friend, unfriend [technical terms from Facebook, but confine them to that platform; in real life, befriend or make friends with people and then drop them]
impact [affect is preferable, but presumably people shy away from it because they get it confused with the verb to effect]
leverage [there is actually the perfectly good verb lever, generally confined to actually working with some kind of tool; we are now stuck with leveraged buy-outs, but try to avoid this verb-form otherwise]
medal [in the Olympic sense; please say win a medal]
message and text [OK, these are kind of useful, but I still don’t love them; I prefer to send a message]
plain-language [oh, the irony of using a piece of jargon to describe taking the jargon out!]
reference [awful! it’s refer to or mention]
repurpose [wouldn’t adapt or convert do?]
task [how about the more vivid charge, as in She was charged with compiling the closing books for the transaction – or you could just say she was asked to do this]
trend [in its modern sense of ‘becoming a trend; popular’, anyway; well-established to express ‘turn in a certain direction, bend; have a general tendency’]
trial [hideous marketing-speak]
Admittedly, verbs-from-nouns can have their uses: position is convenient shorthand for the unwieldy ‘to identify or establish (a product, service, or business) as belonging to a particular market sector, esp. for the purposes of promotion in relation to competitors; to promote (a product, service, or business) strategically or distinctively, esp. as fulfilling or exceeding the requirements of a targeted market sector’ (Oxford English Dictionary Online).
Just use such formations sparingly and thoughtfully.
For more on this subject, see this article: http://www.bbc.com/culture/story/20160825-why-medalling-and-summering-are-so-annoying.
Please don’t ever liaise with anyone. The noun is liaison, but it comes from the French verb lier (‘to link or connect’), not liaiser. Why don’t you just connect with, co-ordinate with or talk to someone, instead of trotting out this hybrid English-French mess?
Even worse is to incent someone. No! You might be OK to incentivise, but you’re better off to create incentives, motivate or encourage – anything but incenting, please.
The dreaded –ise/–ize
Another way to make a verb is to add –ise (–ize, if you prefer) to another word. As H.W. Fowler saith, ‘Within reason, it is a useful and unexceptionable device, but it is now being employed with a freedom beyond reason.’
No one would object to apologise, jeopardise or pasteurise; but the same cannot be said for incentivise, moisturise, pressurise (although this is usual in the UK), productise, randomise, slenderise, tenderise and volumise.
Next: some contractual terms
–Neil Guthrie (@guthrieneil)
Coming Into Force of Statute Revisions
One of the (many) confusing things about historical legislative research is the fact that revised statutes don’t necessarily come into force in the year of their citation. For example R.S.C. 1985, which consolidates the text of the statutes in force on December 31, 1984, came into force almost four years later on December 12, 1988. Any changes made after December 31, 1984 to Canadian statutes were published in the supplements to R.S.C. 1985.
Courthouse Libraries BC has put together a list of the in force dates for the revised statutes of the following jurisdictions:
R.S.A. 2000, which is not listed in the Courthouse Libraries BC’s Knowledge Base, came into force on January 1, 2002 and R.S.A. 1980 was proclaimed into force January 1, 1982.
— Susannah Tredwell
Is That In– or Un–?
The question of –able or –ible a few weeks ago got me thinking of other spelling conundrums. Is a course of action inadvisable or unadvisable?
Either, actually – but usage is changing and now seems to favour inadvisable.
Is there a rule for determining this? Sort of, but it’s not very helpful (like the one for –able versus –ible).
The general rule is where the word is fully English, go with un–. Example: unwholesome. Where the root is Latin (or more immediately so), the negated form generally takes in–, as in ineffable or inevitable.
This assumes some familiarity with word origins, however – and it may not always be easy to determine whether a word is more Latin than English. In those cases, you might go either way: it could be insanitary or unsanitary, for example.
The Latinity rule breaks down anyway. The root of both just and justice is Latin, but it’s fully acclimatised in English. This leaves us with unjust but injustice. Similarly, unable but inability. Maybe un– for shorter words and in– for longer ones? And yet, unexpressive but inexpressible.
Words ending in –ed and –ing tend to go with un—(undigested; unceasing, uncomprehending). Words ending in —ible usually take in—(inaccessible), but –able words don’t follow a regular pattern: inconceivable but unbelievable. For –ent, go with in—(infrequent).
The following could take un– or in– (for those marked with an *, the in– form is probably in the ascendant):
In the end, you just have to remember.
Next time: oh, with the verbing!
–Neil Guthrie (@guthrieneil)
Ask Yourself These Four Questions About Any Digital Collection
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.
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.
3. What is the Search SYNTAX?
Know your operators – every search is different. Until you know the basic commands for a site – AND, OR, Phrase, etc. – you should consult the “search tips” or “connectors” every time. Many sites include a link to their search tips, operators, connectors, or “search help.” Some, like Saskatchewan Cases, display the operators right on the search page. In CanLII, scroll over the question marks at the end of the command lines for basic commands, and from there click on help page for more detail.
A closely-related and equally crucial question (and the fifth in the list, if you think the thumb is a finger) – what is the default operator? How will the search interpret two words beside each other in the command line without any connector between them? For our Law Society research databases, it is always a phrase – the search will look for those two words in the same order. That’s a bit unusual. Many search engines default to AND, and some to OR.
Increasingly common, though, is a type of hybrid where the search engine looks for the words (1) together in order (phrase), (2) both included but not necessarily together (AND), and (3) either word (OR) – then an algorithm sorts out the order for you, so the most relevant documents are at the top. Yes, for these types of sites maybe you can ignore everything I’ve said about operators and still get somewhat useful results. Fine. But don’t assume that’s the case – I’m talking to you, Millennials!
4. How are the results ORDERED?
Don’t assume relevance ranking. Our databases, for example, always order the results in reverse chronology (newest to oldest). These days, many databases offer ranking options (usually in a drop-down menu). So if you are looking at a case law database, think about if you want your results by relevance, date, court level or number of cites. If there are a large number of hits (and you can’t think of how to reduce them), then relevancy may be best. For a small number, level of court or number of citations may be better.
Increasingly, searching filters, such as a menu allowing you to limit to documents from only a single jurisdiction, court level, or date span, can be applied after the search – whereas traditionally they were applied beforehand. CanLII and WestlawNext are two good examples from the Canadian legal world. Filtering search results is a very useful feature – it enables you to search broadly, then gives you considerable control over how the results are displayed and what types of records are visible.
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
Your Queries Answered, Part 3
From the mailbag.
Baffled in British Columbia enquires, ‘I have this feeling that I shouldn’t use “hopefully” in the way that I do. Can you shed some light?’
Let there be light, Baffled.
The standard meaning of hopefully is ‘in a hopeful manner’. Example: The articling student started work hopefully, confident that she would find the answer.
There is a second – and more controversial – sense to the word, when it’s used to mean ‘It is hoped (that)’ or ‘I hope (that)’. As in, The partner told the associate, “Hopefully, you’ll be finished this task before midnight.“
Grammar nerds often criticise the second usage, on the grounds that it doesn’t clearly refer to the person who is doing the hoping.
But hopefully in this sense does perform a useful function (although I hope would work just as well). There is a reasonable argument that because people use hopefully in this way and everyone knows what they mean when they do, it has become acceptable.
Defenders of hopefully in sense 2 often trot out the analogous German word hoffentlich, which means ‘it is to be hoped’, and they note that its English equivalent has been used in the same way since the early eighteenth century (in America, at any rate), with objections only surfacing in the 1960s.
The Oxford English Dictionary Online gives both meanings, but says that the second is ‘avoided by many writers’. You may want to do the same, if only to avoid being called out by a grammar nerd.
Bewildered on Bay Street asks, ‘Is it to “orient” or to “orientate”? “Oriented” or “Orientated”?’
Either actually, although orientate(d) is more common in the UK, orient(ed) in the US. This is one of those rare occasions when I would side with the Yanks; orientate just sounds fussy.
Orient also has the virtue of being the older form of the word, borrowed directly from the French orienter in the early eighteenth century.
Cranky in Calgary asks, ‘Is “Will do” an appropriate response from junior people to a request for assistance? I find it kind of annoying.’
Will do is both grammatically correct and stylistically traditional, Cranky.
On its own, however, it may seem a bit abrupt, even curt. An exclamation mark could help with that, turning what might seem begrudging into a more clearly enthusiastic expression of willingness.
Context is everything – and tone is notoriously difficult to convey electronically. (Although Cranky’s tone was unmistakable!)
Puzzled on the Prairies writes, ‘What is the correct plural of “factum”? Is it “facta” or “factums”?’
One sees both, but factums seems to be preferable.
But what about memoranda, then? Well, even though words ending in –um take –a as their plural form in Latin, we get factum from Latin via French (and civil law). As a result, we’ve adopted the naturalised French plural factums. Memorandum comes to us more directly from Latin, so takes –a (although memorandums is an old plural form (Shakespeare used it) that seems to be gaining traction in modern US and non-legal usage). Who said English was regular?
Factum is, incidentally, not a common word outside the Canadian legal context: the equivalent document is a brief in the US, a skeleton argument in England.
Troubled in Toronto writes, ‘I got a mark-up from a US law firm last week which changed “enure” to “inure”. I always thought “enure” was the legal term (“this agreement will enure to the benefit of…”) and “inure” was for getting used to something unpleasant (“after two months backpacking across Asia, I was inured to the rock-bottom conditions of Cambodian hostels”). Am I right?’
My research indicates that the UK tendency is to use inure in your Cambodian hostels sense, enure in the legal sense.
But the two words derive from the same source (the obsolete noun ure, which means ‘use’ or ‘practice’), and ultimately mean the same thing: one gets used to Cambodian hostels, the legal benefit is put to one’s use.
The Oxford English Dictionary Online prefers inure, but its examples of usage go both ways (and enure is more frequent in the legal citations). Fowler’s Modern English Usage says the variant spellings are unnecessary and opts for inure only.
I’d still do it your way though, Troubled, unless pressed by a Yank.
Next: is that in– or un–?
–Neil Guthrie (@guthrieneil)
Finding Cases on CanLII by Name of Counsel
The following is based on a post made by John Sadler of Western University on the CALL listserv.
CanLII does not offer a custom field that permits searching by counsel. However, there is a technique for finding cases in which a particular lawyer appeared for one of the parties. It relies on the fact that most cases follow a uniform syntax when identifying counsel. For example in a case in which Ms June L. Carter was counsel, the reasons for judgment will say something like the following at the beginning:
June L. Carter, for the respondent
To search for Ms. Carter’s cases one might try this search in the “Document text” field
“Carter for the”
For greater precision, try a qualifier that describes who the lawyer is representing, e.g.
“Carter for the respondent”
Other “qualifiers” that could be used include “accused’, “plaintiff”, “defendant”, “applicant”, and “appellant”.
The technique is not foolproof, of course. Sometimes one will get false hits with common surnames, so the searches above would also pick up cases where John Carter was the counsel. You may need to play around with variations of the counsel’s name such as surname only, given name and surname, initials and surname, etc. Still, the above approach is a refinement on simply throwing the lawyer’s name into the search statement.
Many thanks to John for letting me use his post.
Should That Be –Able or –Ible?
Or even –uble?
Perhaps not one of the burning questions of the day, but I bet you’ve hesitated over this at least once.
I did recently, when trying to Google an antiques dealer who had a well-priced early 20th-century silver snuffbox. The dealer used the form collectibles in its business name, it turned out.
This is the (mostly) US spelling of the preferable (but disappearing) collectable, which means ‘that may be collected’ (Violators are subject to a fine collectable on summary conviction) or ‘(thing) worth collecting, sought after by collectors’ (Silver snuffboxes are highly collectable – really!).
Is there a general rule for determining which ending to use? Most of the time it’s –able, and usually if the stem is a complete word in itself (bill/billable, as opposed to feasible or tangible, which aren’t formed from feas and tang).
The more detailed rules are a bit arcane.
The default position is –able, unless the word is derived from a Latin verb ending in –ere or –ire, or where there is a well-established –ible form (like collectible?) in English already.
If your Latin is a bit rusty, you’ll just have to remember a list of words like this:
- demonstrable (–able replaces the final –ate in demonstrate, as with abominate, alienate, appreciate, calculate etc.)
- enforceable (the final –e of enforce stays so the following consonant stays soft; same thing for manageable, pronounceable etc.)
- forgivable (the final –e in forgive drops out because it isn’t necessary for pronunciation; same thing for movable, usable and the like)
- justifiable (the final –y gets converted to an i)
- incorrigible (compare uncorrectable)
- incredible (compare unbelievable)
- perceptible (perceivable)
- soluble and insoluble (a soluble substance, an insoluble problem – although unsolvable is also possible for the latter)
Where the stem ends in a hard C or G, or a consonant that gets doubled in the adjectival form, go with –able (amicable, navigable, forgettable).
New words have tended not to go with the –ible ending.
Sometimes there are two forms, not always with the same meaning: extendable and extendible are interchangeable; but contractable (‘able to be caught’, like a disease) isn’t the same as contractible (‘capable of being made smaller’).
Totally confused now?
Next: your queries answered, part 3
–Neil Guthrie (@guthrieneil)