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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

 

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)

 

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)

 

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)

 

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

 

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)

 

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)

 

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)

 

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

 

The error in the title is deliberate, for two reasons.

First, it’s important to proofread everything, including titles, recipient names in a memo, captions for diagrams or pictures (see below), footnotes. It’s particularly embarrassing if you spell your client’s name incorrectly or your managing partner’s.

Second, prof for proof is a play on words, prompted by the experience of students at the Faculty of Law at the University of Toronto.

A certain law professor (who will not be named here – but who is identified in the original story) copied and pasted exam questions from a previous year. He seems to have failed, however, to ensure that references to parties and other details in the recycled portions matched up with the newer part of the fact-pattern. Exam questions were ‘so poorly written they were incomprehensible’. It sounds like there were problems of composition and editing, as well as proofreading issues.

Problems like this often occur when you adapt a precedent, or cobble together something new from multiple templates: defined terms that aren’t defined or are never used, inconsistent terminology, cross-references that don’t synch, problems with formatting and numbering.

There is software that will help with this (Contract Companion comes to mind) – but it won’t spot that error in the managing partner’s surname. 

Neil Guthrie (@guthrieneil)