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Slanted type like this, with a number of distinct uses.

Used in these posts to set off a word or phrase that is being discussed. Quotation marks would serve that purpose just as well, although things might look a bit cluttered and fussy.

More commonly, italics are used for emphasis. Go easy with emphasis of any kind: if everything is emphasised, the force is diminished.

In the old days of manual typewriters with only roman (non-italic) typeface, underlining stood in for italics. Underlining can still be used, especially where you’re quoting something that already contains italics but want to add your own editorial emphasis (indicate that in square brackets with something like underlining mine or underlining added).

Italics are also used to indicate foreign expressions. In these, the law abounds: ultra vires, sine die, cy-près, autrefois acquit, to mention but a few.

Two observations, though. First, you’re better off not (or perhaps that should be not) using dead languages at all if there is a good English equivalent. Secondly, after a certain point, foreign words and phrases become fully part of English and lose their italics. We don’t write etc.; it’s now naturalised and needs no italics.

In literary writing, there is a new movement to drop the italics for any ‘foreign’ word or expression, on the grounds that differentiating typefaces creates ‘a monolinguistic culture of othering’ that presupposes the primacy of English and fails to reflect the experience of bilingual and multilingual people: https://quartzy.qz.com/1310228/bilingual-authors-are-challenging-the-practice-of-italicizing-non-english-words/. That has yet to hit the law, however.

A final legal use of italics is in styles of cause, aka case names. Traditionally, these were rendered like this: Hadley v. Baxendale. The v for versus is NOT in italics because when you italicise something containing an element that already has italics, you convert that element to roman type. Because switching back and forth between typefaces was a bit of a pain, we now italicise everything and also drop the period after the v (both to the horror of traditionalists). By the bye, the traditional way to refer in speech to a case is Hadley AND Baxendale, not Hadley VEE Baxendale or even Hadley VERSUS Baxendale.

Neil Guthrie (@guthrieneil)

 

The Internet Archive Wayback Machine allows users to “capture a web page as it appears now for use as a trusted citation in the future”. I’ve mentioned it before since it can be a very useful tool to find information on a webpage that has subsequently changed or been removed.

You are not restricted to using it to access materials that other people have archived. If, in the course of your research, you identify a useful web page, you may want to consider checking if the page has already been archived by the Wayback Machine and—if it is not already there—adding the page. Adding a page is very easy: simply enter the URL into the form and click on “save page now”.

Once you’ve done this, you can use the URL generated by the Internet Archive (rather than the URL for the material you just archived) and you won’t have to worry about link rot.

Note that one drawback is that you can’t save a web page to the Internet Archive if the page is on a site that doesn’t allow crawlers.

Susannah Tredwell

 

End result
No, just the result.

 Freak accident
As opposed to the deliberate or expected kind?

Directly on point
A case is on point or it isn’t, and you wouldn’t ever say that one was indirectly on point.

Sidebar: in England, it is usual to say that a legal authority is in point, not on point. North Americans do say a case in point, but typically (I think) in non-legal usage.

Exactly the same, one and the same
Just the same.

Oftentimes
I heard this in a meeting recently, but the OED says it’s ‘archaic or literary’. And redundant: often alone will do.

Refer back
No, just refer (and never reference (as a verb)).

The re- prefix means back.

Twelve noon, twelve midnight
In both, the twelve (or 12) is unnecessary.

Neil Guthrie (@guthrieneil)

 

To a layperson, trite means ‘hackneyed’, ‘worn-out from over-use’, ‘lacking freshness’ – as in Greetings cards are filled with trite expressions of cloying sentiment.

To a lawyer (or a law student after about 4 weeks into 1L), trite law means any legal principle that is ‘obvious or common knowledge’ (in the words of that unassailable authority, the Wiktionary).

The expression trite law has an ancient pedigree. Its origins go back to T Pasch’s case (1478) YB 17 E4 Pasch fo 2 pl 2, where Brian CJ says that ‘it is trite law that the thought of man is not triable, for even the devil does not know what the thought of man is’ (cited in R Haigh, ‘“It’s Trite and Ancient Law”: The High Court and the Use of the Obvious’, (2000) 28 Fed L Rev 87 at 87 – although Haigh translates the original law French).

In Canada, judges seem to be fond of this particular old chestnut: a search of CanLII yielded nearly 7,000 hits; in the Canadian subscription databases, the figure is closer to 10,000. The phrase is less popular with US judges: not quite 400 hits in the US version of Westlaw.

What does this suggest? Obviously, that the phrase trite law is itself trite, hackneyed, devoid of freshness, lacking in novelty (although less so in the USA). A good reason, then, to stop using it.

Another reason to drop trite law is that it is, in Richard Wydick’s phrase, one of those expressions that lawyers (and wannabe lawyers) use to give their writing ‘a legal smell’, but which mean little to a non-lawyer – and may, more dangerously, ‘give a false sense of precision and sometimes obscure a dangerous gap in analysis’ (Plain English for Lawyers, 5th ed (2005), at 58.

Don’t tell your client something is trite law; tell her that it is well-established that … Your advice will be more meaningful.

And less trite.

Neil Guthrie (@guthrieneil)

 

Riders of the subway in Toronto will be familiar with announcements along these lines: Due to signal problems at Eglinton station, you can expect longer than normal travel times.

You know all too well what this means, but it isn’t quite grammatical.

Due to, usually but not always following some form of the verb to be, properly means attributable to. It needs to be attached to a noun, rather than the vaguer concept of expecting (in the subway example). Due to is frequently misused as a substitute for because of or as a result of.

So, your longer-than-expected subway experience is due to signal problems; but because of signal problems, you are spending more time on the subway than you were expecting.

Admittedly, the shade in meaning between attributable to and because of may be slight, and no real confusion will result from a misuse that most people won’t even notice.

As noted previously, expunge due to the fact that and replace it with because.

Neil Guthrie (@guthrieneil)

 

Terminology associated with things like race, ethnic origin or disability, that is. An area fraught with peril these days, not least because the terminology changes – and sometimes rapidly. Forgive me if I put a foot wrong!

Indian is not a term one should use, except in relation to people from India (and I’m guessing people from the West Indies may prefer Caribbean). Having said that, Indian is (for now) a term of art in the Indian Act (‘a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian’, s 2(1)). Indigenous now seems to be the acceptable term, although it’s not strictly accurate if the ancestors of our First Nations came originally from Asia across the Bering land bridge; something that is indigenous to a particular location has always been there (the French autochtone, used in relation to this continent’s First Peoples, is to the same effect). Aboriginal seems to have passed out of favour in Canada (but Australians still refer to Aborigines), as has Native to some extent. Eskimo, a derogatory term, is now universally Inuit, in Canada at least.

For people whose ancestors came from (sub-Saharan) Africa, Black is still used (Black Lives Matter), as are African-American and African-Canadian – although the latter two would probably not be used to describe people from the top part of the continent, like Berbers or Egyptians. Terminology with ugly historical associations is to be avoided, although there are some hold-overs (the National Association for the Advancement of Colored People has not changed its name, and I think one can still talk about Negro spirituals).

People of colour is a useful (if imprecise) description for non-Caucasians (who aren’t actually colourless). Caucasian is a bizarre term to begin with, based on a since-exploded eighteenth-century theory that the ‘white races’ (and some others) originated in the Caucasus region between the Black Sea and the Caspian.

I still haven’t managed to get my aged parents to substitute Asian for Oriental; they don’t seem to get that there is no centre of the world in relation to which people are eastern or western. (The Middle East, by the bye, used to refer to the region roughly from Mesopotamia to Burma, when London saw itself as centric; as the axis of global power shifted westwards to Washington, the Middle East did too.)

Scotch used to be usual description for someone or something from Scotland, at least to a Sassenach (English person); it’s better now to say Scottish or Scots (the latter, particularly, in reference to the country’s distinct legal system). Vestigial uses of Scotch: Scotch bonnet, Scotch broth, Scotch egg, Scotch mist, Scotch whisky (which I would just call whisky, all other types needing an identifier like Irish or rye).

People with disabilities understandably prefer that term to disabled people, in order to place the emphasis on the person not the disability.

Capitalise terms denoting race? Sometimes it’s useful (White privilege is more pointed than white privilege), but it’s not always necessary (Why aren’t there more brown partners at your firm?).

When in doubt, the best policy is to ask someone’s terminological preference in these matters.

Neil Guthrie (@guthrieneil)

 

Guest post by Martha Murphy of the Ontario Workplace Tribunals Library

We have good news for those of you who use the Ontario Ministry of Labour Employment Standards Act 2000 Policy and Interpretation Manual (P & I Manual). The Manual has been updated as of Mar 22, 2019 and the release will be available through our Ontario Workplace Tribunals Library (OWTL) website or it can be requested directly from MOL.

The ESA 2019 Release 1 March 2019 replaces all prior versions. The previous version was ESA 2018 Release 2 July 2018.  Please share this widely with the legal community and any interested stakeholders.

In 2016, MOL began publishing the P & I Manual bi-annually as an Open Government initiative. In prior years the P & I Manual was published by Thomson Carswell. The OWTL will provide updates as they become available.  The P & I Manual is only available as a PDF document. MOL is currently working on providing the Manual in both languages on Ontario.ca.

If you wish to request the P & I Manual directly from the Ministry of Labour, please contact them at webes@ontario.ca. A PDF copy will be sent to you.  There is currently no distribution list to which you can subscribe in order to receive future updates.

Stay tuned!

— Martha Murphy owtl@wst.gov.on.ca

 

In a previous post, we covered the bad tendency to make a verb out of a noun (action, credential, reference, task and others of this misbegotten brood).

One verb-from-noun that may be OK is gift.

It doesn’t mean anything that give doesn’t, so arguably there is no real need for it – but some lawyers like to use it for things like donations. Does gift sound more formal and legal/technical than plain old give? Perhaps, but that’s not good reason to use it.  

Gift as a verb does have a fairly long history, going back to the sixteenth century. And it is natural to talk about someone as being gifted with some sort of skill or talent.

In the gift-bestowing, present-making sense, the OED suggests the verb is ‘chiefly Scottish’, and most of the examples of usage are in fact from Scots legal sources.

Use gift as a verb if you must, but you might be better just to give.

Neil Guthrie (@guthrieneil)

 

In collaboration with several other organizations, the University of Saskatchewan launched a Gladue Rights Research Database last spring (hat tip to Legal Sourcery for   noting this new resource).

At that time the database was accessible for a small subscription fee. Since then, the database has become open access (read: free) through the generosity of the several sponsors.

A bit more detail on the database:

“This database is an ever-expanding work in progress. It is designed to provide Indigenous people, their legal counsel, and others working within the justice system with information that will assist in the protection of Gladue rights after a person’s conviction and prior to sentencing. In particular, this database provides researchers with information pertaining to the history of settler colonialism in the province of Saskatchewan up to c. 1990.

This database is designed to provide much, but not all, the information required to write or review a Gladue report. It provides solid comprehensive information explaining the unique circumstances that have impacted and shaped Indigenous people’s lives in Saskatchewan – the essential historical backgrounds and contexts to the situations Aboriginal people face today. The additional recent and intimate personal information needed to complete particular Gladue reports must be acquired separately.

There are a few different ways to navigate the database: browse by topic, read about key concepts, or search. There is also a timeline of settler colonialism in Saskatchewan and various relevant historical and topical maps.

 

Your prose should be tight, toned and vigorous if you want to engage rather than repel your reader.

Too often, though, lawyers resort to flabby and lethargic constructions like these:

  • Please be advised that … [omit and just give the damn advice]
  • make available [offer, provide]
  • … when I am able [heard on voicemail and seen in out-of-office replies; do people think when I can is too colloquial? it’s perfectly good]
  • quoted as saying [this always sounds like either I’m not saying that this person actually said this (in case I get into trouble for suggesting that) but she has been reported (by others!) to have said … or just I haven’t bothered to check, but …]
  • duly authorised [something can’t be unduly authorised, can it? duly authorised is a redundancy]

Neil Guthrie (@guthrieneil)