All Our Tips
Finding Internet Sources Cited in SCC Judgments
When you are trying to find a source that has been cited online, it can be very frustrating to discover that the link no longer works. If you are looking for a website cited in a Supreme Court of Canada judgment, you’ll be happy to know that the Office of the Registrar of the SCC has archived the content of the majority of the online sources cited by the Court between 1998 and 2016.
For 2017 on, any online source that was cited in the “Authors Cited” section in SCC judgments has been captured and archived. When a judgment cites such a source, an “archived version” link is provided. You can see an example of this in J.W. v. Canada (Attorney General), 2019 SCC 20.
Exclamation Marks
A certain orange person to the south of us uses these a lot (Sad!).
You would probably never see one in a contract, but you might in a factum – but there only rarely, and, one hopes, judiciously.
Over-use of the exclamation mark is a hallmark of the uneducated or unpractised writer, says Fowler.
Experienced writers will confine them to:
- interjections (Damn! Heavens! Oh!)
- exclamations with what or how (What a disaster! How awful!)
- wishes (Convention be damned!)
- ellipses and inversions expressing emotion (If only I could! Fat lot of good you are!)
- apostrophes (You miserable swine!)
Resist the temptation to add an exclamation mark to a mere statement, question or even a command. Save it for a time when it really adds something.
Ross Guberman notes twenty-one instances of the exclamation mark in United States of America v AT&T Inc (DC Cir, 2018), where they variously convey:
- ‘exasperation in a youthful vernacular’ (Please! Go figure!)
- wonderment, sometimes in a sarcastic way (Small wonder!)
- ‘judicial modesty’ (That is no easy assignment!)
- ‘supreme certainty’ (I have concluded that the answer to that question is no!)
- spin-control (But the temptation … should be resisted by all!)
Each of the AT&T examples could have been as effective with just a period, probably. Adding an exclamation mark may be an admission that your phrasing inadequately conveys the desired tone.
A useful place for the exclamation mark is e-mail, where tone is notoriously difficult to capture. An unadorned Thanks may appear terse, even grudging; add the flourish of an exclamation mark and you will seem more clearly enthusiastic.
In any event, keep this form of punctuation to a minimum; writing that is peppered with exclamation marks is exhausting for the reader. And you may come across like a teenager rather than seasoned counsel.
That US decision is 172 pages long, so may not be overdoing it with twenty-one exclamation marks. More than one in a tweet, however …
Discover New Canadian Law Library Podcasts
As mentioned recently on Slaw, at this year’s annual conference in Edmonton, CALL/ACDB partnered with vLex for an exclusive podcast series, hosted by Colin Lachance, interim General Manager of North America for vLex.
The series features 11 episodes, which are “brief interviews with CALL/ACBD 2019 conference speakers, exhibitors, sponsors and organizers, about their experience at the May 2019 conference, what’s hot in their world, and their thoughts on the future.”
Some topics include: KM & innovation, career opportunities, conference organizers’ perspectives, AI, law as code, human-centered design, courthouse library renovations, legal publishing, the importance of CALL, and more.
Visit lawlibrariespodcast.com to listen to the podcasts.
Inasmuch As, in So Far As
These pomposities can always be replaced by something simpler and clearer.
Inasmuch as is just a fancy (and archaic) way of saying seeing that, since or because.
In so far as (sometimes insofar as) means much the same thing, or to the extent that.
They add nothing to your prose except flab (as does to the extent that).
Rephrase.
Heads Up!
The origins of this phrase are a little obscure, but appear to be from the exhortation of sports coaches or more senior people in the army for the players/troops to look up from whatever is distracting them from the game/drill/war. (Their mobile devices, perhaps?)
Be on the alert or on the qui vive, in other words. There may also originally have been an element of buck up! to it.
Fair enough. But at some point people in business and government started talking about giving their underlings a heads-up [note the hyphen for the noun] – to the point now where it has become one of the most tiresome clichés.
I cringe whenever some passive-aggressive person says, Just wanted to give you the heads-up …
The expression also causes spelling issues for people: either they omit the hyphen in forming the noun (a no-no) or they insert apostrophes in strange places.
To avoid orthographical anxiety – and to keep me from cringeing – please stop using this expression.
And on the subject of cringeing, it’s better to spell that with an e so the soft g is clearly preserved; otherwise, you might be tempted to pronounce it to rhyme with singing (compare singeing). Same goes for bingeing on Netflix.
A Tool to Improve Your Writing
I recently read about a great tool that helps you to simplify your writing. The Hemingway App highlights:
- sentences that are difficult to read – yellow sentences are hard to read, while red are “egregious”;
- use of the passive voice; and
- phrases that have simpler alternatives (e.g., with respect to).
It also provides a grade level-based readability rating of your prose.
I tried out Hemingway by entering a legal summary that I had written for a non-legal audience. A sea of yellow and red! And a readability rating of “Post-Graduate”. Gasp!
After adding bullets and making some fairly minor revisions, I was able to resolve most of the issues. The new readability rating – Grade 8 – seemed pretty reasonable for a legal summary.
Hat tip to the Civil Resolution Tribunal (@CivResTribunal) for bringing this tool to my attention. They are aiming for a Grade 6 reading level – the average level in Canada – even for their tribunal decisions. This is a significant step toward improving accessibility of the law.
Check out the free online version of the Hemingway App.
Lesha Van Der Bij (@LVanDerBij) is CEO & Founder of Optimize Legal – keeping law firms and businesses up-to-date on changes to the law.
Remember Your Lawyer Assistance Program
Research shows that lawyers are at a higher risk of depression, anxiety and substance abuse than average. And according to Ontario lawyer-turned-social worker Doron Gold, “If there’s stigma in society generally, the stigma is tenfold in the legal profession.”
Today’s practice tip is a reminder that every province and territory has a lawyer assistance program that exists to help members of the legal profession and those that care about them. Services and programs vary, but most have confidential helplines, counselling, peer support programs, and many more offerings to benefit lawyers, judges, law students, their immediate families and colleagues.
- Alberta: Alberta Lawyers’ Assistance Program
- BC: Lawyers Assistance Program of BC
- Saskatchewan: Lawyers Concerned for Lawyers
- Manitoba: Lawyers Health and Wellness Program
- Ontario: Member Assistance Program (MAP)
- Quebec: Programme d’aide aux membres du Barreau du Québec (PAMBA)
- New Brunswick: Lawyers’ Assistance Program
- Newfoundland & Labrador: Professionals’ Assistance Program
- PEI: Lawyers Assistance Program
- Nova Scotia: Nova Scotia Lawyers Assistance Program
- Yukon: Yukon Lawyers Assistance Program (YLAP)
- NWT: Lawyers Assistance Program
- Nunavut: Nunavut Lawyer Assistance Program (NuLAP)
The Judges Counselling Program is another Canadian organization that provides support to judges, justices of the peace, masters, prothonotaries, and their spouses and eligible children.
Use CanLII to Confirm Citations
At work we are frequently asked how to cite a source using the McGill Guide. While most questions are fairly easy (“how do I cite Delgamuukw?”) the McGill Guide doesn’t always have an answer, e.g. “how do I cite an unreported tribunal decision?” or “how do I cite a type of government document [that isn’t listed in McGill]?”
It can be helpful to search CanLII (or other case law database) to see if the source we are trying to find a citation for has been already been referred to. If it has, we can just copy the citation (or copy and tweak the citation). We do keep in mind that it is more important that the person reading the citation be able to find the material we’re referring to than the citation be in perfect McGill format.
Note that a number of courts specify a citation format that differs from the McGill Guide. They include:
- B.C.C.A. Practice Directive, May 30, 2013 – the B.C. Court of Appeal has adopted the 7th edition of the McGill Guide with a number of changes
- Notice to the Profession, November 12, 2013 – the Alberta Queen’s Bench has adopted the 7th edition of the McGill Guide with some minor changes
- Ontario Superior Court of Justice Practice Direction, July 1, 2014
- Reference Guide for Citation Practices at the Court of Appeal for Ontario – effective March 1, 2017
- Citation Guide for the Courts of Saskatchewan – effective October 1, 2014, the Saskatchewan Court of Appeal, the Court of Queen’s Bench and the Provincial Court require citations conform to this guide
More Confusing Pairs
Alternate/alternative
As a verb, alternate means ‘to succeed in alternation’ (The two speakers alternated in answering questions form the audience); as a noun, ‘a substitute (I can’t attend the conference, but we’re allowed to send an alternate); as an adjective, ‘occurring by turns’ (The cake consists of alternate layers of cake, whipped cream and fruit filling)
Alternative involves a choice between two options: An alternative choice to cake is fresh fruit.
Forceful/forcible
Forceful means ‘powerful, effective’; forcible is ‘using force or violence’.
The lawyer made a forceful plea for clemency on behalf of the accused; The complainant alleges that her treatment by the mall’s security guards amounted to forcible confinement.
Militate/mitigate
The first is to ‘lend support, have force’; the second, to ‘alleviate, make less severe, moderate.
The totality of the circumstantial evidence militates in favour of a finding of guilt; The youth of the accused and her lack of a previous criminal record are mitigating factors that should be considered in sentencing her.
Complex/complicated
These are interchangeable, both meaning (1) involved or intricate and (2) made up of different elements, compound.
We tend, I think, to say complex litigation but a complicated problem.
Every one/everyone
Two words in the ‘each and every’ sense, one where you could substitute everybody.
I ate every one of the sandwiches BUT Everyone ate a sandwich.
In spite of/despite
Actually, no difference in meaning.
Despite (shortened from the earlier in despite of) perhaps sounds a little more old-fashioned?
Although or even though would also work.
Repetition
Judicious use of repetition can be a very effective rhetorical device, especially in written and oral advocacy. Judicious use, mind you.
Winston Churchill made memorable use of repetition: We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills.
Lawyerly writing, on the other hand, tends to repeat things because the writer doesn’t want to allow an iota of uncertainty by substituting a pronoun like it or that, or a synonym – or because the writer hasn’t taken the time to edit.
Ask yourself, for example, whether you really need to repeat a defined term ad nauseam. You may in contractual drafting, for the sake of certainty, but in a case comment or client update the context may make things clear without dull duplication. If you’re careful, it or that can work just fine.
If you read your piece aloud, you will be more likely to spot the kind of repetition that makes your prose leaden rather than lively.
