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

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  • Research & Writing

A student who is helping a partner with writing a book (I hope he gets due credit) called to ask which verb tense to use in describing cases.

My answer was that it depends on context.

I think you would say that a judge found, held or stated something in a particular case.

Perhaps where you are talking about a judge’s obiter dicta rather than ratio decidendi, you would use the present tense: In this case, So-and-so J discusses the applicable factors. But you would say, The judge said in dicta that …

Where the description is depersonalised, the present seems more normal: the case sets out a three-part test, stands for a proposition, distinguishes an earlier case.

But let me know what you think.

Neil Guthrie (@guthrieneil)


  • Research & Writing

The Workplace Safety and Insurance Appeals Tribunal (WSIAT) has published a detailed tip sheet on finding WSIAT decisions online.

It explains how to search by topic, issue, words or phrases and more. Step-by-step instructions are provided for searching by WSIB policy number, section of the Workplace Safety and Insurance Act, and with summaries.

Instructions are for CanLII but also cover the “Noteworthy Decisions” section of the Tribunal’s website.

Hat tip to the Ontario Ministry of Labour, Training and Skills Development What’s New newsletter for highlighting this resource.


  • Research & Writing

Ontario now allows legal professionals to search for Superior Court of Justice court cases online. To search, you will need to set up a ONe-key account. (There is no cost to set up an account.)

You can search by either party name (i.e. surname or business name) or by case number.

Information provided includes the parties, the name of the lawyer representing the person or company (if represented), the claim amount (for civil matters), the date the case was opened, the most recent order type and date (for civil matters), the next appearance type and date (if a future appearance has been scheduled), and whether the case is subject to a publication ban

Note that the service “will not provide information about cases that are subject to statutory, common law or court-ordered public access restrictions.”

Susannah Tredwell


  • Research & Writing

You may have seen that the US District Court for the District of Columbia has issued guidance (it isn’t framed as a directive, exactly) on its preferences for typefaces in documents submitted to the court.

Briefs (as they call them in the USA) must be at least 14-point in size (judges tend to be older, and presumably need large-print formats), and in a font with serifs. (Oddly the court’s notice is in a sans serif typeface.)

The court then goes on to say it has ‘determined that certain typefaces, such as Century and Times New Roman, are more legible than others’.

Garamond is singled out as ‘particularly’ difficult to read, because it ‘appears smaller than other typefaces.’

The concern appears to be that lawyers will exploit smaller or narrower fonts as a way of getting around the strict page limits for court documents, thereby putting a strain on judicial eyes and patience.

I’ve always found Garamond rather elegant, and I use it for my own writing. Couldn’t the DC Circuit just ask for it in 16-point type?

Other courts have waded into these treacherous waters.

The United States Supreme Court also likes Century and its progeny, mandating in Rule 33 that briefs ‘shall be typeset in a Century family (e. g., Century Expanded, New Century Schoolbook, or Century Schoolbook) 12-point type …’ (They also seem to like two spaces after a period, which is so 1950.)

Times New Roman gets no mention, so SCOTUS mustn’t like it, or not well enough. Times New Roman is, by omission, effectively proscribed by the highest court in the States.

The US Court of Appeals for the Seventh Circuit, for its part, does not like Times New Roman at all.

That court’s Rule 32 requires a roman, serif font that is at least 12-point in size (7th Circuit judges must have better eyesight than those on the DC Circuit, and they’re OK with sans serif for headings).

In its Requirements and Suggestions for Briefs and Other Papers, the 7th Circuit counsels against Times New Roman.

This font was, the court says, designed for quick reading of newspapers (hence the name) with narrow columns of text. It less suitable for ‘book-length (or brief-length) documents’.

The guide goes on to say, ‘Lawyers don’t want their audience to read fast and throw the document away; they want to maximize retention. Achieving that goal requires a different approach—different typefaces, different column widths, different writing conventions. Briefs are like books rather than newspapers.’

So, not much agreement among the American judiciary on this burning question.

What does an actual expert on the typography of legal documents have to say?

Matthew Butterick, in his aptly titled Typography for Lawyers, places Garamond and Century Schoolbook on the ‘A list: Generally tolerable’, his highest category. Plain old Century is on the B list (‘OK in limited doses’), Century Gothic is among the Cs (‘Questionable’), while Times New Roman is relegated to the F list (‘Fatal to your credibility’).

Take that, DC Circuit!

Butterick goes on to say that Times New Roman ‘is not a font choice so much as the absence of a font choice’, not particularly attractive or readable, but there by default when you open a new document in Word.

He concludes (emphasis in original): ‘If you have a choice about using Times New Roman, please stop. You have plenty of better alternatives’.

But if you’re appearing before the District Court in Washington, DC, probably not Garamond.

Neil Guthrie (@guthrieneil)


  • Research & Writing

If you’re a power Lexbox user, you’ll be interested to know that Lexbox Premium is now available. The premium account includes:

  • integration with Clio
  • 5GB of uploads storage (or even more: 20GB for an additional fee)
  • up to 100 alert feeds (or even more: 400 extra alerts for an additional fee)
  • unlimited history, hyperlinking of your docs to primary law, and search within your docs

See a comparison between Base (free) accounts and Premium accounts here.  The Premium account is $20/month and is billed monthly.

It’s also important to note that “all revenues generated are kept within the CanLII family and serve to improve the CanLII user experience.”


  • Research & Writing

The meanings of words change over time.

A nice example is condescending, which not so long ago meant something along the lines of ‘being gracious to the underlings’ (the King James Bible, Dr Johnson and Lord Byron use it in this sense). Since the later nineteenth century, it has meant ‘patronising’ (in a bad way; that also once had a neutral or even positive connotation).

Another is meticulous, a quality we now seek in new legal hires, but a word which used to mean ‘timid’ or ‘fearful’ rather than ‘detail-oriented’.

Only a pedant would cling to the old meanings; and we must recognise that language is not of marmoreal permanence.

What is different is a misuse or error that sticks, as opposed to a gradual shift in meaning or tone. I could care less is an example. It’s just a lazy shortening of I couldn’t care less, and the difference in meaning is worth preserving.

When usage is changing, it is still worth fighting to retain an older meaning where the new one lacks precision, logic or truth.

As events in recent years have repeatedly shown, words and truth matter; they should not be distorted to mean their Orwellian opposite.

Neil Guthrie (@guthrieneil)


  • Research & Writing

Lexbox is a free* online service that allows you to set up CanLII alerts that are automatically emailed to you.

To set up an alert on CanLII using Lexbox:

  • If you haven’t already done so, create a Lexbox account.
  • Go to CanLII and run your search.
  • Once you are happy with the search, click on the grey Set up alert feed button. If you’re not already logged in, it will prompt you to do so.
  • A box with the details of your alert should pop up. You can rename your search and choose how often you wish to be notified. Then click on Ok.

When you go into Lexbox > My Alerts you should now see the search you have just saved.

If you want to monitor amendments to a piece of legislation, the process is much the same. Simply find the legislation you wish to monitor on CanLII and click on Set up amendment alert.

Similarly, to set up an alert for any cases citing a specific case or piece of legislation, find the document you want and then click on Set up citation alert.

* For the first 10 alerts that you set up on CanLII. There is a cost for additional alerts.

Susannah Tredwell


  • Research & Writing

To do one’s utmost is to make the maximum possible effort: We will do our utmost to meet the deadline imposed by the regulator.

What one sometimes sees (or, more often, hears) is upmost instead of utmost. Close, but no cigar.

Upmost is a legitimate word, but it’s obsolescent in its correct sense. It refers to something that occupies the highest place or most important position.

The more common word for that is now uppermost. As in, The reader’s convenience was not uppermost in the mind of the drafter of these complicated regulations. Or, The book was on the uppermost shelf in the library.

An example of the correct use of upmost is found in Decision No. 2399/14, 2015 ONWSIAT 3, which refers to the ‘upmost flexion’ of the distal phalangeal joint (at para 8).  See also Re Loblaw Groceterias Co. Ltd. and Minister of Highways, 1963 CanLII 222 (ON CA), [1964] 1 OR 271 (the ‘upmost round’ of a ladder).

The remaining 92 cases in CanLII which use upmost get it wrong (upmost good faith etc.): utmost would be correct. In only a handful of those 92 is there a judicial ‘[sic]’ to indicate that the error occurs in quoted material.

Avoid upmost entirely – especially when utmost would be correct. Use uppermost when you mean something like ‘chief in importance’ rather than ‘best efforts’. For those, utmost is the way to go.

Neil Guthrie (@guthrieneil)


  • Research & Writing

Some random things I’ve seen and heard lately.

Don’t take it personal
Nope. Personally is how one should (or should not) take it.

You would make it personal, however, because you want an adjective to modify it (not the adverb that needs to modify take).

Happy New Years
Add this to the category of Apostrophe Catastrophes.™

It’s New Year’s Eve, but you express wishes for the New Year (whether happy or otherwise).

You could omit the capitals where the reference is general, not specific to the first day of January or in a greeting: I’ll see you in the new year.

In the mist of
Um, that should be midst – unless you’re fog-bound rather than in the middle of something.

One in the same
Perhaps like in the mist, this is one of those transcriptions of what one thinks one has heard.

It’s actually one and the same.

But add that to the list of redundancies and just say the same.

Neil Guthrie (@guthrieneil)


  • Research & Writing

When people hear I’ve published a book on writing, many of them ask for my views on the ‘Oxford’ or ’serial’ comma, in that intense ‘please confirm my own view’ sort of way.

The Oxford comma, so called because the University Press has long insisted on it, is used in lists: A, B, and C. Whether one needs the comma before the and is apparently one of the great punctuation controversies of our time.

Clinging to the Oxford comma seems to be a badge of honour for some, a beacon of erudition in a barbarous age. I’ve even seen it mentioned in online dating and Twitter profiles, presumably as an indication of moral rectitude and lofty personal standards. ‘Oxford Comma’ is also the title of a 2008 pop song by Vampire Weekend, but the band’s intention seems to be gentle mockery of the Society for the Preservation of the Oxford Comma, a Columbia student group.

Those, like the SPOC, with a weird attachment to the Oxford comma are usually disappointed when I say I don’t care about it one way or the other, and don’t think it necessary. (I do use Oxford commas in the book, because that’s my publisher’s house style; I’d prefer to dispense with them.)

I haven’t given the necessity point much thought until recently — but I now think I can justify what has hitherto been an off-hand comment.

In a list of two items, no commas are necessary if you use and to connect the items: A and B. Where you have more things to list, you need something to separate them: a comma or the word and. Otherwise, you might run into confusion: A B and C just isn’t the way we do things, especially where A B might seem like one thing, not two. You could do A and B and C, but it’s more usual, with longer lists in particular, to separate items with a comma. The and that precedes the final item in the list is therefore a replacement for the commas that separate the preceding items. As a result, I think one can say you need either a comma or and — but not both.

Use the Oxford comma before the final item if it makes you feel traditional or superior or particular, but it doesn’t add anything useful because you already have and separating the two final things in your list. Right?

Neil Guthrie (@guthrieneil)