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I wrote previously about thank-you (with the hyphen, it’s noun or adjective only – not the actual expression of thanks).

Someone I follow on Twitter (@BrendanCormier) identified another problematic usage involving gratitude: thanks in advance, which he calls ‘one of the most insidiously awful phrases in the english language’.

I agree wholeheartedly with that sentiment.

Even though it’s grammatically unassailable, stylistically it’s deplorable.

Presumably your request also incudes please, so the anticipatory thanking is redundant. Thanks in advance is also becoming a shop-worn cliché (so to be avoided for that reason alone).

But more than that, the phrase suggests that the writer won’t necessarily bother to thank you when you do fulfil the request.

This is just rude and more than a bit passive-aggressive.

Please don’t use this dreadful phrase, and just thank when appropriate.

Thanks.

Neil Guthrie (@guthrieneil)

 

Seen in an e-mail from one of the big legal publishers (there are really only two, so that narrows it down; emphasis added):

“Tailor a motion or argument to a specific judge by reviewing the cases, phrases, and judge’s a judge is most likely to rely upon.”

Judges is a plural noun here, not a possessive. Obviously.

Did they fire all the copy-editors?

Neil Guthrie (@guthrieneil)

 

While recent newspaper articles are reasonably easy to find (give or take a paywall), older newspaper articles can be a bit more challenging to locate.

If a newspaper article you are looking for is not available through the paper’s website, the following resources may be useful in tracking articles down:

  • The newspaper resources offered by your public library.
  • Check out your local university’s publicly available databases; you may find resources akin to UBC’s B.C. Historical Newspapers database.
  • Google News Archives Search – this provides access to archives of newspapers, both scanned and text-based. Searching is free, but there may be a charge to access the full text.
  • Lexis Advance Quicklaw – LAQ offers access to a number of newspaper titles although access will depend on your subscription
  • Library and Archives Canada’s Canadian News Online – this provides links to “a sampling of news resources” including historical newspapers.
  • Newspapers.com from Ancestry – this provides access to scanned newspapers covering the 1700s-2000s. While searching is free, you will need an account to see the results.

— <Susannah Tredwell

 

Increasingly, I’m seeing this with a singular verb: Social media is …, Social media has

While the phrase can logically be regarded as a singular concept encompassing different components (LinkedIn, Twitter and their ilk), I still don’t like it.

Why? Media is a plural, the singular form of which is medium.

Just like data, which is the plural of datum – although I guess I can see big data as singular if it means a monolithic construct rather than the sum of its parts.

The French don’t do this better. Where we would refer to the media (and improperly use a singular verb), in French one would say les médias. Even my 1903 Larousse dictionary, which doesn’t list médias at all (not thought of as a category back then, presumably), gives médiums as the plural of médium.

The medium is the message, as a wise man once said.

Neil Guthrie (@guthrieneil)

 

First, the forensic.

In Re McGoey, 2019 ONSC 80, a bankrupt argued that two properties had been placed in trust for his children in 1995 and were not part of the assets available to his creditors in 2018.

The trustee in bankruptcy produced an expert in design and typography, who testified that the fonts of the purported trust deeds (Cambria and Calibri, respectively) were developed by Microsoft in 2002 and not released to the public until 2007. No one in 1995 could have used them.

On the strength of that evidence, the judge concluded that the trusts were a sham, and fraudulent preferences intended to defeat creditors.

On a more positive note, lawyers should think about fonts in their own documents – obviously not in order to deceive, but rather to make their written work easier to read and more compelling.

Guidance can be found in Matthew Butterick’s Typography for Lawyers: Essential Tools for Polished and Persuasive Documents, 2d ed. (Houston, Tex.: O’Connor’s, 2015). My copy of the first edition was a gift from the late Simon Fodden, Slaw’s founder.

Some fonts are more readable on a screen than on a printed page, and vice versa. Others are better suited to contracts than presentations. Some fonts look professional, others (Comic Sans) do not.

Butterick hates Arial; and, while ‘it’s not that Times New Roman is a bad font’, he doesn’t exactly love it (the United States Supreme Court forbids it).

The book also discusses punctuation marks, spacing, formatting and lay-out, with elegant sample documents and practical advice.

Neil Guthrie (@guthrieneil)

 

As a follow-up to my last tip, which was on strictly prohibited and strictly forbidden, what about gross negligence?

This is a term we have imported from US law. Canadian (and English) judges and authors were not keen on it initially.

Linden et al in Canadian Tort Law (2018) cite Baron Rolfe, a famous 19th-century English jurist (later Lord Cranworth LC), who said that gross negligence is merely ordinary negligence ‘with the addition of a vituperative epithet’. A sceptical American judge ‘is reputed to have compared the differences among negligence, gross negligence and recklessness to the distinctions among a fool, a damned fool and a God‑damned fool.’ (Still a fool.)

Over the years, Canadian case law has come to recognise that the term has its uses, however.

Sir Lyman Duff CJ thought gross negligence usefully described ‘a very marked departure from the standards by which responsible and competent people in charge of motor cars habitually govern themselves’, adding that it is ‘not difficult of application by a jury whose minds are not confused by too much verbal analysis’ (Murray v McCulloch, [1942] SCR 141).

As one student suggested to me, it would be grossly negligent to leave Homer Simpson in charge of operations at the nuclear power plant, but probably only negligent to entrust things to any other employee at the same level.

That made perfect sense.

Neil Guthrie (@guthrieneil)

 

I’ve previously talked about how to find docket information about Canadian courts.

If you’re trying to find information about the status of current British cases, there are a few options:

  • The HM Courts & Public Tribunals website offers docket information for the Queen’s Bench Claims and Appeals (London only) and the Business and Property Courts. It is free to search once you create a login. Coverage is as follows:
    • Business and Property Courts (London only): 1 January 2016 (for new cases)
    • Queen’s Bench Claims and Appeals (London only): 5 November 2018
    • Business and Property Courts (outside of London): 25 January 2019
  • Case Tracker allows users to search for information on applications or appeals in the Court of Appeal, Civil Division (free)
  • Supreme Court of the United Kingdom provides information about current and decided cases (free)
  • v|lex is a paid service that offers UK docket information
  • GlobalX is another paid service that provides UK court searches and document retrieval

Susannah Tredwell

 

Strictly Ballroom is the title of a 1992 movie by Baz Luhrmann.

What has this to do with legal writing? The word strictly.

Like all adverbs, strictly is weak, even when it is meant to sound tough.

Think of strictly prohibited, which is frequently seen in toothless e-mail notices: ‘This e-mail message is privileged and confidential. Any unauthorized use or disclosure is strictly prohibited.’ By what? Sender, the horse is out of the barn door.

Strictly prohibited seems to be especially popular in the regulations of Nova Scotia. Some choice excerpts from the Boxing Authority Regulations, NS Reg 155/2002, for example (emphasis added): 

184 It is strictly prohibited for boxers to practice “blood boosting”, the intravenous administration of blood or blood products to enhance the boxer’s performance, for non-medical or recreational purposes.

185 (1) The administering or use of drugs or stimulants, including smelling salts or ammonia, either before or during a boxing match, to or by a boxer is strictly prohibited.

187 The use of iron-based coagulants such as “Monsel’s Solution” or any of its derivatives is strictly prohibited and the use of any such coagulant is cause for immediate disqualification.

As opposed loosely prohibited, somewhat prohibited, only a little bit prohibited?

Just say something is prohibited and set out the penalty for violating that.

As bad is strictly forbidden, often seen in warnings not to reproduce or download material – and in the English versions of Quebec regulations:

          A common drinking-cup is strictly forbidden. [Regulation respecting sanitary conditions in industrial or other camps, CQLR c S 2.1, r.5.1, s 11]

Adding strictly runs the risk of exposing your threat as empty, if you can’t back it up.

Just who is policing shared use of cups in the industrial camps of Quebec anyway?

Neil Guthrie (@guthrieneil)

 

Commas can be confusing, and one of the most common misuses is this:

Join partner, Eleni Papadopoulos for this informative seminar on …

Sometimes another comma will be placed after the person’s name as well.

Both are wrong where there are more partners than one.

Offsetting someone’s name with two commas suggests she is the only partner (which is impossible at law), and using only one comma just doesn’t make sense.

To recapitulate, My friend Ed… means I have a friend called Ed, but also some other friends. My friend, Ed, … means I’m a bit of a loser and have only one friend. He’s called Ed.

Here are some even more puzzling commas that have crossed the radar recently:

  • Make culture, part of your Performance Management.
  • It is my hope, with the current modernization efforts that are being implemented, this tradition of exemplary customer service, will blossom and flourish for generations to come!
  • The Canadian Bar Association, recommended that …
  • Moses will be supporting, Jennifer and Eli in the corporate group.

The first is a corporate slogan seen on LinkedIn. The comma is presumably intended to create an emphatic pause, but it’s wholly unnecessary (as are the caps on performance management).

The second is a rather florid customer testimonial in an ad for public transport in Toronto. The writer probably got a bit confused by a relatively complicated sentence, which he thought needed more breaks than it actually does. The third comma is superfluous.

The last two examples are more puzzling, but are perhaps also meant to be in the ‘emphatic pause’ category.

The errant commas in examples 3 and 4 could just be typos, but the fact that they emanate from the same lawyer writer suggests that some remedial comma training would be in order.

Neil Guthrie (@guthrieneil)

 

This phrase is frequently used by judges and lawyers: there are roughly 400 cases in CanLII which employ it.

Notable among them is R v Neil, 2002 SCC 70, where Binnie J applies a bright-line test to identify lawyers’ conflicts of interest.

We all know what this means (a test that is clear, easily applied and certain in outcome), but how did we come to use it?

The legal notion of a bright line seems to have its origin in Girard Trust Co v Commissioner of Internal Revenue, 122 F2d 108 (3d Cir 1941), where Goodrich CJ observes that ‘A bright line between that which brings conviction to one person and its influence on the body politic cannot be drawn’.  The judge later says, ‘Nor has the law sought to draw such a bright line between the exercise of private and public influence.’

Justice Frankfurter referred a few years later to ‘a bright line dividing negligence from non-negligence’ (Wilkerson v McCarthy, 336 US 53 (1949)), which is probably where the concept takes off.

If readers are aware of any earlier citations, please share them!

Are lines actually bright, though? Perhaps if they are drawn in bright-red ink.

Or maybe the idea comes from physics, where a bright-line spectrum is a discontinuous one composed of lines resulting the radiation of an incandescent vapour or gas; or from photography, where a bright-line view-finder is one in which the area of the picture appears framed by a white line.

It’s unlikely, though, that US judges had these meanings specifically in mind in the 1940s.

In any event, the phrase has, over the decades, become a judicial (and lawyerly) cliché – like the safe harbors that US securities lawyers like to talk about, or the requirement for noisy withdrawal by a US lawyer from client fraud.

Clichés, while useful shorthand, are tired – and thus to be avoided by writers of lively, engaging prose.

Why not just say something like a clear test or a simple test instead?

Neil Guthrie (@guthrieneil)