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  • 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)


  • Research & Writing

This was adapted from a post on the CALL listserv; many thanks to Sarah Sutherland of CanLII and Ken Fox of the Law Society of Saskatchewan for the information.

There are a couple of ways of noting up a specific paragraph of a case, with the easiest option being on CanLII.

For CanLII, start off by searching for the case you are interested in. Then scroll down to the paragraph and look at the text box to its right. The number in the box will give the number of times the paragraph has been cited. If you then click on that box, that will give you a list of options including “Citing documents”. Clicking on “Citing documents” will take you to a list of cases that cite your paragraph.

To do the equivalent on Lexis Advance and WestlawNext, Ken Fox suggests a phrase search using “a sample of consecutive words in the part of the paragraph likely to be cited, that are (1) distinct enough to not appear exactly as so in any other case and (2) short enough that a search engine can handle it”.

Susannah Tredwell


  • Research & Writing

This word is unavoidable as a technical term in litigation: one commences an action under the Courts of Justice Act, RSO 1990, c C43, for example.

But don’t use the word in normal parlance or non-technical writing, where it sounds fussy and pompous.

She didn’t commence employment on whatever date; she started work.

While we’re on the subject, the academic term commencement for a graduation ceremony (so, the conclusion rather than beginning of one’s course of study) has always seemed strange to me – perhaps because it’s a Cambridge term, and more recently an American one. But it’s old, going back at least as far as 1387. I guess it’s like Cambridge colleges holding May balls in June.

Oh Lord, no!

While there are some mid-Victorian colloquial examples of thusly, the correct adverb is thus – and, frankly, that has no place in modern legal writing either.

If you are still using –eth as a verb ending, unto might be OK.

There is no reason to be using it in modern English, however.

We herein provide you with an update on the status of …
These opening words from an actual e-mail are a waste of everyone’s time.

Just say what the status is: We closed the transaction, The court dismissed the appeal, whatever it is.

The preamble is just meaningless filler with a phoney air of gravitas.

Neil Guthrie (@guthrieneil)


  • Research & Writing

Readers send me examples of bad things. I shudder and pass them on, so you will never commit the same grievous faults.

Arms length
You keep something or someone at arm’s length in order to ensure independence or impartiality. Note that apostrophe (and its placement; arms’ length is justifiable but not preferred).

If you want to turn the phrase into an adjective, you’ll need to add a hyphen (even if you think that looks a bit over-punctuated): an arm’s-length transaction.

A French-Canadian boss of mine always pronounced it harm’s length, which had a certain unintended logic to it.

The instant case
This would have been normal, current English in the late eighteenth century, but it has no place in your present-day factum or pleadings.

Say this case (and NOT the case at bar, which always makes me think of cocktails).

Bad enough as a noun, worse as a verb.

The noun just means something like connectioncontact or common ground; the verb (especially as used outside the IT context) is a silly way of dressing up old-fashioned words like meet or talk.

Recently seen, as though we still drafted documents with quill pens by candlelight.

Archaic compounds like whereupon can always be expressed in clear, modern language that won’t make you look like a pompous old fogey.

Replace this one with something like at whichon which or just plain then. Your readers will be grateful.

Neil Guthrie (@guthrieneil)


  • Research & Writing

All of these seen recently.

Action plan
I suppose there could be a plan to do nothing (an inaction plan?), but generally plan implies taking action — so the first element inaction plan is redundant.

Betwixt and between
They mean the same thing.

Yes, the phrase is used idiomatically to mean ‘at a loss’ or ‘unable to choose between alternatives’, but it has no place in legal drafting.

Just between in your contracts.

A thoughtful reader points out that the –ship bit adds nothing.

Compare trusteeship or fellowship, where the suffix actually changes the meaning of the other part (turning person into thing).

In the realm of dating and marriage, relationship is now too entrenched to be dislodged; but you could usefully use relation (orrelations) in your legal writing and drafting to describe the interrelatedness of parties or concepts.

Tier levels
The actual phrase used by an American professional development manager was skill sets for tier levels of associates. Insert Edvard Munch ‘Scream’ emoji.

There’s a lot of redundancy going on there: just skills would work (and sometimes those come singly, not in groups); and either tiersor levels, but not both.

Neil Guthrie (@guthrieneil)


  • 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.

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.

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.

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.

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?

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,

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)