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  • Research & Writing

One of CANLII’s lesser known resources is its Foreign reported decisions database which “includes some decisions issued by foreign courts and tribunals and that are of special interest for Canadian law.”

For example, should you be interested in Browne v. Dunn (1893), 6 R. 67 (a decision sufficiently challenging to find online that someone created a dedicated website for it) you can find it on CanLII.

While the collection of foreign decisions is not large, CanLII will on request add cases that are of interest to Canadian legal practitioners.

(And for all your regular British case law needs, there is always BAILII.)

Susannah Tredwell

 

  • Research & Writing

These aren’t always confined to lawyers; they permeate the e-mail and speech of law clerks, legal assistants and students.

Advised
The phrase Please be advised that … has to be one of the most leaden openings of all time. Cut to the chase and just convey the actual information, without the pointless preamble.

And advise in this context is, well, ill-advised. On stylistic grounds, for one. It’s pompous to say Please advise me if … when you could just say Please tell me if … or Let me know if ...

It’s also not a great idea to extend your use of the words advice and advise beyond that which is legal advice in the strict sense.

Attend
Oft-seen in emails from harried assistants: We urgently need a student to attend at the client’s office to …

Go to would be much more effective in putting a fire under the articling students.

Do dockets still read attendance to [whatever activity]? Probably time to modernise the accounting software.

Dictated but not read by …
We don’t send letters the way we used to, but new software has revitalised the practice of dictation.

As a result, the old dictated/not read formulation is still seen on correspondence – both digital and printed.

It was never good: it conveys a message of ‘I’m too busy (or, more to the point, disorganised) to take proper care’.

One research lawyer in Toronto once jokingly used the phrase to describe a loose-leaf text of inconsistent quality, ostensibly by a senior partner at another firm but largely the work of successive generations of articling students.

In any circumstance, don’t write (or practise) this way. Consider, check, proofread, revise. (And write your own material.)

Neil Guthrie (@guthrieneil)

 

  • Research & Writing

We’ve had lots on bad business jargon in this space, but other fields of endeavour have also been polluting the language.

Surface
This is from the world of technology, a jargon-generator if ever there was one.

As in This AI solution will surface all the relevant case law.

Please, techies, stop calling every product or service a solution for one thing; but also, stop using the verb surface in this way.

Things surface, but one does not generally surface things. Here, it means nothing more than plain old find.

Just say that.

Transparency
Blame NGOs and civil servants for this one, I think.

It was once a vivid metaphor to describe a refreshing new approach to government (or business, or what have you) that has nothing to hide.

It’s tired now (1,579,993 hits on the Government of Canada website!) – and in this new world of big data, we are all probably sceptical of the claim anyway.

Why not say opennesscandour or even honesty?

But perhaps that is the point: things aren’t hidden, exactly, but do they fall somewhere short of complete disclosure?

Wellness
If my hunch about transparency being almost-but-not-quite-honesty is correct, wellness is definitely along the same lines.

It isn’t the same as health, with which it is often twinned but thereby juxtaposed: see, for example, https://www.studentlife.utoronto.ca/hwc/contact-us

Promoters of wellness may say the concept is meant to seem wider and more holistic than health (holistic being a New Age sort of word from the 1930s that I don’t much like either).

I suspect the underlying rationale is that wellness is often the domain of the unlicensed; and the standard by which it is assessed is more subjective, more nebulous.

And therefore intended to be less susceptible to litigation?

Neil Guthrie (@guthrieneil)

 

  • Research & Writing

This was cited in Guthrie’s Guide as an example of bad business jargon, without much additional commentary.

Because of its ubiquity, this dreadful phrase merits a few words.

Ubiquity, for starters. The phrase appears in nearly 5,000 posts on Lexology, which to me suggests one word: hackneyed (and therefore to be avoided).

It’s also unnecessary, as there are perfectly good, plain alternatives: lessons or important points come to mind (but, please, not learnings).

And if you have readers in the UK, you may occasion some scratched heads: a takeaway is a take-out meal or the establishment from whence it came – so your reader in London may be wondering, ‘Does she mean “really important curries”?’

Neil Guthrie (@guthrieneil)

 

  • Research & Writing

This was based on a post on the CALL listserv; many thanks to Michèle LeBlanc of the Université de Moncton for the information.

The Centre de traduction et de terminologie juridiques (CTTJ) at the Université de Moncton has been working on a project to translate important unilingual Canadian court decisions into Canada’s other official language. The project currently focuses primarily on the areas of criminal law and family law.

The translated cases are available here: https://www6.umoncton.ca/cttj/jurisprudence-pancanadienne/ and can be searched by style of cause, file number or jurisdiction. The translations can also be found on CanLII.

Susannah Tredwell

 

  • Research & Writing

Lawyers find it difficult to use one word when they could use two. Here are some further examples.

Forward progress
All progress is forward-looking; that’s why it’s progress.

Null and void
The two elements mean the same thing, so there is no need to use both.

As a drafting point, it’s a dangerous phrase. If doing (or not doing) something renders a contract null and void (or terminated), you may not be able to sue the breaching party because there is no longer any underlying obligation. You are better to say that the non-breaching party is relieved from performance of the contract (but can still sue on it).

Rate of speed
This phrase appears, according to CanLII, in 4,173 Canadian cases and 126 statutory provisions.

Speed is, by definition, the rate at which something moves. So, just speed.

Ten-year anniversary
No, just tenth anniversary.

The anni– bit derives from the Latin annus, which means ‘year’ and also gives us annual.

Neil Guthrie (@guthrieneil)

 

  • Research & Writing

In an op-ed piece prompted by the Ontario government’s threatened invocation of the Charter’s ‘notwithstanding’ clause (s 33), Professor Lissa Paul of Brock University mused about the prevalence of similar ‘useless adverbs’ in student writing: ‘”Notwithstanding” and the Transition Word Epidemic’, Globe & Mail, 21 September 2018.

Wise words. The ‘infestation’ of so-called ‘transition words’ in undergraduate essays is also a weakness found in legal writing, which is replete with adverbs ‘feigning the existence of non-existent connections’.

Odds are, if you’re using words like additionally, furthermore, moreover and nevertheless to connect sentences, paragraphs or sections of your piece, you’re labouring to establish a logical or rhetorical connection that may well be absent.

It is more effective to create the connection organically, through the (judicious) repetition of a central concept or term. Think about building your argument rather than hitching disparate elements together with so-called transitional adverbs, which may signal the opposite of what you intend.

Neil Guthrie (@guthrieneil)

 

  • Practice

Be careful: There may be another you out there, lurking in the non-SEO-optimized back quarters of the internet. Another website profile with your name, maybe even your firm’s name, but with different contact information.

Lawyer impersonation is a serious problem. Many lawyers have been shocked to discover alternate website or contact information from person(s) purporting to be the lawyer in question, offering legal services. At other times, a potential client will contact a firm to speak to a lawyer they believed they had already been corresponding with, only to find that they had actually been speaking with a fraudster impersonating the lawyer and drafting off their reputation for social engineering purposes.

Fraudsters may use these stolen identities to provide an authenticity gloss to phone demand letters, fake settlements aimed at collecting personal information, bad-cheque schemes, and other similar frauds.

In some situations, fraudsters will, essentially, copy-paste an entire website, changing only the URL (by adding a slight modification) along with the contact phone numbers and emails.

Therefore, it may be a good idea to indulge your vanity every once in a while, and put some time into Googling yourself and reviewing what comes up. Do any websites appear on page six of the results that provide incorrect contact information?

If you find someone is using your identity in another jurisdiction, there are limited avenues of response. One option is to query the fraudulent website through a service such as https://whois.icann/org/en, which will be able to provide information on who created the fraudulent site and which provider is hosting it. You can then inform the host of the illegal activity and impersonation and request the site be taken down.

Shawn Erker (@ShawnErker) is Legal Writer & Content Manager at LAWPRO.

 

 

  • Research & Writing

A friend, who is originally from the UK and not a lawyer, asked me why we call our trainees articling students.

The articling element comes from the articles (provisions, clauses) of the agreement by which a mediaeval apprentice was bound to his (it would have been his in the Middle Ages) principal.

In full it was always articles of clerkship for would-be lawyers, clerk being an old word for anything kind of scribe-y. My late, very old-school father would refer to articled clerks (and pronounce the second word to rhyme with larks not lurks).

In British Columbia, the technical term is articled student; in Ontario and other provinces, it is the rather unlovely articling student, which I suspect dates from the 1960s.

Both come from the verb to article, meaning to be in a formal legal apprenticeship under the supervision of a lawyer.

In England, trainee accountants also article – and there, one is generally articled to someone specific. In Canada, one just articles in a general way, as the first Canadian usage listed in OED suggests: He articled as a student-at-law in September of 1912 (from the Manitoba Free Press, 1918).

The at-law bit is an old fashioned way of saying ‘in relation to the activity of law’; one is also at the bar or a barrister-at-law once called to the bar.

The bar being the railing or other physical barrier surrounding the judge in a courtroom, not one of the cocktail variety – although lawyers are often no strangers to those. By extension, the practice of advocacy itself.

Most of this would baffle an American legal practitioner, who typically does a brief stint as a summer associate (what we would call a summer student), then writes the bar exam and immediately becomes an attorney (in a firm, with the tile of associate, as here).

Neil Guthrie (@guthrieneil)

 

  • Research & Writing

Last Thursday, CanLII unveiled its newest endeavour: the CanLII Manual to British Columbia Civil Litigation. The resource consists of nine “pathfinders” dealing with specific areas of the law, a guide to civil procedure at the BC Supreme Court, and annotated rules of court for both the BC Supreme Court and the Court of Appeals.

There is a lot of very useful information in this publication but there was one particular resource I wanted to highlight: the annotated rules of court. Lawyers frequently want to consult an annotated rules but up until now there has been nothing available freely online for British Columbia. And because this is an online resource, the annotations link to the relevant cases on CanLII, making it a seamless experience.

Susannah Tredwell