advice you can use — short and to the point — every Tuesday, Wednesday & Thursday

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All Our Tips

  • Practice

It’s been a few years since AccessCLE was cited here on SlawTips, and a recent mention of it on the CALL-L listserv made me think it would be worth pointing to again, especially since there’s been a recent development that makes it even more accessible.

So what is the AccessCLE database? It’s a repository of LSO continuing professional development papers from 2004 onwards. While there was originally an embargo on papers newer than 18 months, the LSO recently lifted that restriction and now all papers are free.

The Great Library’s Know How blog reminds us that:

“Continuing professional development (CPD) program materials are an invaluable source of current legal information. Papers typically cover the practical implications of recent case law and legislative developments, and often include useful precedents, procedure and checklists. “

The papers can be searched full-text or browsed by topic, then downloaded as PDF.

 

  • Research & Writing

This is one of those words with a weird function confined largely to the world of law.

The ordinary current meaning of deem, according to the OED is, essentially, to consider, think or judge (in a non-judicial way).

But lawyers have a special meaning, where deeming means treating A as if it were B and not A. Creating a legal fiction, in other words (and that doesn’t mean John Grisham).

This comes up in my teaching, where the law school will occasionally stick a deemed Wednesday in the calendar, in order to make up for an actual Wednesday sacrificed for some reason like a holiday or special event.

It also comes up a lot in statutory drafting, where all kinds of things are deemed to be other things for legal purposes: the word deemed occurs 4141 times in the Income Tax Act (Canada), for example.

Oddly, the OED’s other definitions of deem, while they involve judgment of some kind, don’t quite capture the ‘treating A as if it were B’ meaning that is familiar to lawyers.

One legislative drafter says that the ordinary ‘consider’ usage should be avoided: ‘Phrases like “if he deems fit” or “as he deems necessary” are objectionable as deviations from common speech’ (GC Thornton, Legislative Drafting, 2d ed (1979), 83-4, cited in Black’s Law Dictionary).

It appears that the Dictionary would think the legislative use of deem is actually the departure from ordinary usage – but intelligent people can disagree.

This division of opinion may cease to matter. Ruth Sullivan suggests that modern legal drafters have already ditched deem in the ‘consider’ sense and are starting to say is considered or just is when they wish to create legal fictions (Sullivan on the Construction of Statutes, 6th ed (Markham, Ont: LexisNexis Canada, 2014), at §4.105).

Neil Guthrie (@guthrieneil)

 

  • Practice

CanLII recently announced that 22 reports from the National Self- Represented Litigants Project (NSRLP) are now available on CanLII. The NSRLP builds on the National Self-Represented Litigants Research study conducted by Dr. Julie Macfarlane from 2011-2013 and is committed to advancing understanding of the challenges and hard choices facing the very large number of Canadians who now come to court without counsel. The NSRLP regularly publishes resources designed specifically for SRLs, as well as research reports that examine the implications for the justice system. The reports include: 

To access the complete collection of reports, please visit the CanLII commentary site.

[This tip by Melanie Hodges Neufeld originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]

 

  • Research & Writing

When you are trying to find a source that has been cited online, it can be very frustrating to discover that the link no longer works. If you are looking for a website cited in a Supreme Court of Canada judgment, you’ll be happy to know that the Office of the Registrar of the SCC has archived the content of the majority of the online sources cited by the Court between 1998 and 2016

For 2017 on, any online source that was cited in the “Authors Cited” section in SCC judgments has been captured and archived. When a judgment cites such a source, an “archived version” link is provided. You can see an example of this in J.W. v. Canada (Attorney General), 2019 SCC 20.

Susannah Tredwell

 

  • Research & Writing

A certain orange person to the south of us uses these a lot (Sad!).

You would probably never see one in a contract, but you might in a factum – but there only rarely, and, one hopes, judiciously.

Over-use of the exclamation mark is a hallmark of the uneducated or unpractised writer, says Fowler.

Experienced writers will confine them to:

  • interjections (Damn! Heavens! Oh!)
  • exclamations with what or how (What a disaster! How awful!)
  • wishes (Convention be damned!)
  • ellipses and inversions expressing emotion (If only I could! Fat lot of good you are!)
  • apostrophes (You miserable swine!)

Resist the temptation to add an exclamation mark to a mere statement, question or even a command. Save it for a time when it really adds something.

Ross Guberman notes twenty-one instances of the exclamation mark in United States of America v AT&T Inc (DC Cir, 2018), where they variously convey:

  • ‘exasperation in a youthful vernacular’ (Please! Go figure!)
  • wonderment, sometimes in a sarcastic way (Small wonder!)
  • ‘judicial modesty’ (That is no easy assignment!)
  • ‘supreme certainty’ (I have concluded that the answer to that question is no!)
  • spin-control (But the temptation … should be resisted by all!)

Each of the AT&T examples could have been as effective with just a period, probably. Adding an exclamation mark may be an admission that your phrasing inadequately conveys the desired tone.

A useful place for the exclamation mark is e-mail, where tone is notoriously difficult to capture. An unadorned Thanks may appear terse, even grudging; add the flourish of an exclamation mark and you will seem more clearly enthusiastic.

In any event, keep this form of punctuation to a minimum; writing that is peppered with exclamation marks is exhausting for the reader. And you may come across like a teenager rather than seasoned counsel.

That US decision is 172 pages long, so may not be overdoing it with twenty-one exclamation marks. More than one in a tweet, however …

Neil Guthrie (@guthrieneil)

 

  • Practice

As mentioned recently on Slaw, at this year’s annual conference in Edmonton, CALL/ACDB partnered with vLex for an exclusive podcast series, hosted by Colin Lachance, interim General Manager of North America for vLex.

The series features 11 episodes, which are “brief interviews with CALL/ACBD 2019 conference speakers, exhibitors, sponsors and organizers, about their experience at the May 2019 conference, what’s hot in their world, and their thoughts on the future.”

Some topics include: KM & innovation, career opportunities, conference organizers’ perspectives, AI, law as code, human-centered design, courthouse library renovations, legal publishing, the importance of CALL, and more.

Visit lawlibrariespodcast.com to listen to the podcasts.

 

  • Research & Writing

These pomposities can always be replaced by something simpler and clearer.

Inasmuch as is just a fancy (and archaic) way of saying seeing that, since or because.

In so far as (sometimes insofar as) means much the same thing, or to the extent that.

They add nothing to your prose except flab (as does to the extent that).

Rephrase.

Neil Guthrie (@guthrieneil)

 

  • Research & Writing

The origins of this phrase are a little obscure, but appear to be from the exhortation of sports coaches or more senior people in the army for the players/troops to look up from whatever is distracting them from the game/drill/war. (Their mobile devices, perhaps?)

Be on the alert or on the qui vive, in other words. There may also originally have been an element of buck up! to it.

Fair enough. But at some point people in business and government started talking about giving their underlings a heads-up [note the hyphen for the noun] – to the point now where it has become one of the most tiresome clichés.

I cringe whenever some passive-aggressive person says, Just wanted to give you the heads-up …

The expression also causes spelling issues for people: either they omit the hyphen in forming the noun (a no-no) or they insert apostrophes in strange places.

To avoid orthographical anxiety – and to keep me from cringeing – please stop using this expression.

And on the subject of cringeing, it’s better to spell that with an e so the soft g is clearly preserved; otherwise, you might be tempted to pronounce it to rhyme with singing (compare singeing). Same goes for bingeing on Netflix.

Neil Guthrie (@guthrieneil)

 

  • Technology

I recently read about a great tool that helps you to simplify your writing. The Hemingway App highlights:

  • sentences that are difficult to read – yellow sentences are hard to read, while red are “egregious”;
  • use of the passive voice; and
  • phrases that have simpler alternatives (e.g., with respect to).

It also provides a grade level-based readability rating of your prose.

I tried out Hemingway by entering a legal summary that I had written for a non-legal audience. A sea of yellow and red! And a readability rating of “Post-Graduate”. Gasp!

After adding bullets and making some fairly minor revisions, I was able to resolve most of the issues. The new readability rating – Grade 8 – seemed pretty reasonable for a legal summary.

Hat tip to the Civil Resolution Tribunal (@CivResTribunal) for bringing this tool to my attention. They are aiming for a Grade 6 reading level – the average level in Canada – even for their tribunal decisions. This is a significant step toward improving accessibility of the law.

Check out the free online version of the Hemingway App.

Lesha Van Der Bij (@LVanDerBij) is CEO & Founder of Optimize Legal – keeping law firms and businesses up-to-date on changes to the law.

 

  • Practice

Research shows that lawyers are at a higher risk of depression, anxiety and substance abuse than average. And according to Ontario lawyer-turned-social worker Doron Gold, “If there’s stigma in society generally, the stigma is tenfold in the legal profession.”

Today’s practice tip is a reminder that every province and territory has a lawyer assistance program that exists to help members of the legal profession and those that care about them. Services and programs vary, but most have confidential helplines, counselling, peer support programs, and many more offerings to benefit lawyers, judges, law students, their immediate families and colleagues.

The Judges Counselling Program is another Canadian organization that provides support to judges, justices of the peace, masters, prothonotaries, and their spouses and eligible children.