All Our Tips
Would
A few more words about would. (For previous advice, see Shall, will, should, would, may, might, must.)
Would is, of course, the conditional form of will. It’s used to express a potential (or non-existent) rather than a certain future state of being.
So it’s I will have the memo for you today but I would like to give you the memo today, but I’ve been asked to work on a big due diligence project instead.
Relatively straightforward, one would think – but one would be wrong.
Tense accord
No, not a strained agreement, but the proper alignment of various verb tenses.
I would be a rich man if I had a dollar for every time I’ve seen something like this:
I would have started on your memo earlier if I would have known that the big due diligence project was about to land on me.
Wrong, so wrong. That second would have needs to be had.
Getting technical with talk of the pluperfect and the conditional perfect (aka past conditional) is likely to confuse, so just remember that it’s never correct to have two would have (or similar) constructions in succession like this.
Journalistic conditional
Happily there isn’t too much of this in legal writing, but open the newspapers and it abounds (especially in the obituaries). By way of example (emphasis added):
‘Steven breathed a rich mixture of political gossip (he would go on to meet all but three of the 20th century’s Prime Ministers).’
That would go should just be a simple went (or just say he later met all but three…).
Would of
Ugh. But I certainly hear and sometimes even see would of.
In spoken English, would have can sound like the contracted form would’ve, which has led some astray into thinking that it’s actually would of.
Of course it’s not.
Ever.
Next week: ‘only’, the lonely
Do You Need New Wi-Fi?
Maybe it was you that installed your small firm’s Wi-Fi. Perhaps it was a contractor. Do you remember what year that was? Perhaps your cable company put in a router when you moved into your home. Or a friend helped you put it in place for your home office.
For whatever reason, your Wi-Fi router is there and has worked reliably for years. It’s dependable and no one is complaining about it.
There seem to be an infinite number of reasons as to why someone’s Wi-Fi router can become old and ignored, but it happens. So if your router hasn’t been considered in more than five years, it’s probably time to review the situation — both the router itself and your data provider’s contract.
For technology reasons alone, you should upgrade to maximize the value you’re getting from your data line. If you’re paying for 15, 30 or 150 MB of throughput, it’s silly to have an older router that doesn’t take advantage. As an example, if your older router doesn’t operate on the “5G band”, you’re using old technology and won’t see the higher speeds that are possible.
Your data provider may also help you ‘acquire’ a new router. If you use a cable modem, you may have an older one that doesn’t have a Wi-Fi router built in. The newer ones DO have embedded router technology, and the throughput can be impressive.
So this week’s tip is to upgrade (or at least review) your Wi-Fi router. I did so at home recently, and went from 15 MB/second on “speed tests”, to over 170 MB!
— Steve Matthews
Keep a List of Provinces That You Can Cut and Paste
(This tip is courtesy of Bronwyn Guiton.)
Librarians are frequently asked to provide lists of legislation from across Canada. To save time answering these kinds of questions, keep a handy list of the provinces and territories in the Notes tool in Outlook. Then when you are asked these kinds of questions you can just paste this list into your email or Word document, saving time and effort.
— Bronwyn Guiton
Building a Firm of Finders
Can all grinders become finders?
The need for heads-up entrepreneurial lawyers grows as heads-down commodity “grinder” work diminishes. How can we develop more “finders” who see fresh opportunities to attract clients on a daily basis? How can we accelerate this shift in mindset? How can we use every interaction to enhance the firm’s reputation for making clients feel they are in good hands? And how can traditional rainmakers become better finders in an evolving marketplace?
While formal strategy sessions are vital to set the firm’s overall marketing and services direction, the day-to-day work of cultivating differentiated, high value consultation and collaboration with clients is becoming everyone’s job. In addition to acquiring technical expertise, we need a process to continuously improve the quality of human-to-human interactions.
Seeing around corners
The range of skills needed in an entrepreneurial, finder firm include understanding client priorities, seeing around corners (foresight and problem prevention), in-depth collaboration, empathy and identifying opportunities for new business. We also must learn on our feet to effectively integrate technological advances in our quest to better serve clients.
As I described in my previous SlawTip titled “Learn to leverage your 80%”, approximately 80% of the knowledge we need to do our jobs is gained informally, during daily work activities and interactions. Knowing how to learn from both positive and negative situations is a core skill today. Capabilities acquired through active (vs. passive) learning are valuable because they’re difficult to teach effectively to humans—and not easy for robots to learn.
Happens over time, with no extra time
The good news is that the quality of our human interactions can be greatly improved by learning in the moment, rather than as a separate activity. This process happens over time, rather than over night, but does not require extra time.
What prevents us from learning from our own experience? In order to learn faster, we must first become aware of the factors that make us open or closed to life’s lessons. Using a conscious approach, we can cultivate a prepared mind for learning in action.
Steps to building firm of finders
- Define a business purpose. Love of learning is admirable, but success for this initiative begins with a concise statement of the anticipated outcome. What do you expect a commitment to active learning will achieve that advances your overall business strategy?
- Recognize common barriers to learning. Blame and defensiveness prevent us from seeking alternative approaches in how we deal with recurring situations. In order to see positive and negative patterns, it’s vital to accept the reality that things typically don’t just happen to us; we have an active role to play in what goes right or wrong.
- Question your assumptions. It takes some practice to ask thought-provoking (in contrast to “gotcha”) questions. But a healthy spirit of inquiry can become a lifelong habit. In any given situation you might ask: Why does this client feel they’re in good hands?
- Accept the “givens” of learning. Rather than become discouraged by the inevitable anxiety that arises when we wrestle with challenging situations, we can reframe them as “normal human messiness.” Will we choose to avoid difficult conversations or leverage the learning potential?
- Understand the active learner’s tradeoffs. If we ignore lessons to be learned we risk paying the lifelong price of wasted time and energy, damage to relationships and diminished reputation. By contrast, conscious learning provides us with strategies for dealing with recurring challenges.
- Involve others. Group coaching accelerates the natural development of these capabilities. Active learning in groups can make great leaps forward by making the most of our collective wisdom. Learning to think through real-life predicaments together promotes a culture of inquiry, empathy and respect for diverse perspectives.
Active learning prepares us for a workplace where routine tasks are increasingly being automated. Developing the confidence and know-how to cope with the unpredictable nature of work is a major benefit of learning how to learn faster from our own experience.
—Sharon VanderKaay, Twitter: @svkaay
Your Queries Answered, Part 2
Bewildered on Bay Street asks, ‘Is it “travelled” or ‘traveled”? “focussed” or “focused”?’
In the USA, it would be traveled and traveler; travelled and traveller are more usual in Canada. On the other hand, focused is the better way.
Confounded in Calgary writes, ‘Is it ‘Quebecer’ or ‘Quebecker’?
Traditionally, Quebecker is the correct form, although this is less commonly seen nowadays. Logically, the C in Quebecer should be soft (C followed by E or I generally is, in English), and the E long as a result. You need that K to make it a hard C sound and to keep the short E.
But your humble scribe may be losing the battle on this one.
Embarrassed in Edmonton admits, ‘I’m never sure whether it’s “licence” or “license”.’
Well, it depends what you mean and where you live. In the USA, licence (and practice) are both the noun and verb forms. In the UK, a licence is required for driving, but one is licensed to drive. Your humble scribe would go British on this one.
Related point: US usage demands defense (and offense); on the other side of the Atlantic and (generally) north of the 49th parallel, it’s defence/offence (even though the adjective is defensive/offensive). And while we’re on the subject, don’t say DEE-fence and OH-fence; they really should be pronounced duh-FENCE and off-FENCE.
Perplexed on the Pacific enquires, ‘Is there anything wrong with “as per” or just “per”? They seem like useful expressions to me, but I suspect you may disagree.’
Your humble scribe will quote Robert Hartwell Fiske’s Dictionary of Unendurable English on this:
‘(As) per is commercialese – which is to say, an expression at once hideous and comical – and means nothing more than as or according to.’
Use as usual instead of as per usual; as we discussed for as per our discussion (or per our discussion), as requested instead of (as) per your request.
Troubled in Toronto isn’t sure if it’s OK to refer to ‘the above [or below] paragraph’.
It isn’t, Troubled. These are prepositions or adverbs, not adjectives.
You could say see the passage quoted above [or below], or just see above [or below], but it’s inelegant to talk about the below [or above] passage.
Up next: would
Learn to Leverage Your 80%
What is a “learning experience”?
Merely “having an experience” does not guarantee how much we will learn from that experience.
Lawyers are rarely trained to excel in the most basic skill required to thrive in today’s work environment: How to learn faster in action. A widely accepted rule of thumb is that 80% of the knowledge needed to do your job is gained informally, during routine work activities and interactions. Yet developing this valuable resource is typically left to chance rather than leveraged intentionally.
A recent issue of The Economist notes, “…employers are putting increasing emphasis on learning as a skill in its own right.”
Today’s tip: discover ways to exploit your 80%.
We know that one colleague’s “five years’ of experience” can be vastly different from another who did similar work. But why do some people learn faster than others? And why does one practice develop a healthy learning culture, while others tolerate repeated bad behaviour?
As our roles and responsibilities evolve to meet marketplace realities, we can learn to extract more know-how from every messy, complicated situation—both positive and negative. To keep up with the demand for new capabilities and get ahead by spotting fresh opportunities, we need to learn how to learn on our feet.
Young lawyers seeking to gain working wisdom as fast as possible, as well as seasoned partners who want to stay ahead of the competition can make the shift to active, rather than passive learning. Active learning involves knowing where and how to look for day-to-day lessons learned, as well as how to overcome common barriers to learning from experience.
Face your learning disabilities
Smart, successful people are commonly hindered by learning disabilities. As a result, learning on their feet can be surprisingly slow, superficial or not at all. Typically, high achievers are prone to self-limiting assumptions, jumping to answers, blame and defensiveness. They may view management tips as “what other people ought to do” rather than how they themselves play a part in what happens; what goes wrong.
In other words, smart people have been conditioned to excel as passive learners. Through a group coaching process, new lifelong learning habits can be formed. These habits change mindsets from “know it all” to asking revealing (aha!) questions.
For example, in any situation we might ask: Why is this happening? Is there another way I might handle this? What options do I have? What if….? What is possible in this situation? How can we re-frame this issue? Do I see a pattern or principle I can apply to similar predicaments? What does the other person really want? How can I get what I want by finding common ground?
Can judgment and empathy be taught?
Human-centric skills involving judgment and empathy that enable—intense collaboration, complex consultation, problem prevention and creative thinking—are valued differentiators. They are valuable because they improve business relationships, attract clients and can lead to innovation. These skills are also valuable because they’re difficult to teach effectively to humans—and not easy for machines to learn. Fortunately the quality of our human interactions can be greatly improved by learning in the moment, rather than as a separate activity.
Each day is packed with learning opportunities that can enhance communication, collaboration and leadership skills. You might be surprised by the nuggets of insight to be mined from the most mundane encounter.
Mind the blind spots
Anyone can develop the habit of “leveraging their 80% informal learning” by seeing lessons that are hiding in plain sight. Instead of blind spots and repeated, self-defeating ways of ways of working, they can learn their way through challenging work situations. Learning how to distill lessons from experience not only improves problem solving and problem prevention skills, it also expands our capacity to see possibilities that others miss: the foundation for innovation.
In my next SlawTips we’ll look at how active learning can be used to grow a firm of entrepreneurial “finders.”
—Sharon VanderKaay, Twitter: @svkaay
Rangefindr – You’re Doing It Wrong!
Rangefindr is a fabulous source for searching sentencing ranges in Canada. If you are a criminal lawyer I highly recommend you speak to your firm librarian or whoever is in charge of licensing online resources.
I have had several people tell me that Rangefindr is difficult to use, and in particular that any search returns only a paucity of hits. So I came here to tell you that there is nothing wrong with Rangefindr – you’re just doing it wrong! There, don’t you feel better now? The problem isn’t with Rangefindr, it’s just your shoddy searching technique.
Basically, you’re checking too many boxes. No matter how sophisticated a search engine is, it is limited by the encoding of its data. Rangefindr offers you hundreds of search parameters, but these are only useful to the extent that the individual documents are coded for each parameter.
For example, say the accused in your case was amenable to counselling, and while looking through the various parameters under “Accused” in Rangefindr you see the check box “Amenable to counselling” – so naturally, you check it, right?
Wrong.
Ask yourself, what percentage of Canadian sentencing decisions where the accused was amenable to counselling actually say so in the decision? And further ask, given the granularity of Rangefindr’s data, how likely is it that the coder will have re-entered that particular piece of information into the record? In order for using that check box to return a positive result, both of the above contingencies must have been met.
Let’s further develop our example. Say the accused was male, 45, charged with driving impaired, had no previous charges, and was considered by many to have a “good character,” but was also known to be a heavy drinker.
Begin with the charge – click on “OFFENCES” in the left-hand pane. This part is easy – scroll through the offences, find “Drive impaired” and click on the heading (the words, not the box), and the little box will turn black. Now look at the square at the bottom right of the screen (inside the black rectangle) – it should say “PLEASE SELECT MORE TAGS TO NARROW YOUR SEARCH.” Keep an eye on this square.
Now, let’s click on the second item in the left-pane menu, ACCUSED. And scroll through the many parameters. For the purpose of this exercise, go ahead and click on all that apply, and WATCH what happens in the square in the bottom right corner. When I click Addiction/Alcohol, I see the number 64 – that means there are 64 relevant hits in the database. Now try “Amenable to counselling” – we are down to 3! What happened? Try de-selecting “Amenable” and click “Good character” – 1 hit. In fact, ANY combination of two or more of these criteria quickly brings the results to zero. Is it because there have been no reported Canadian decisions that resemble our case? I hardly think so.
With Rangefindr, the first question you need to ask is: what are the key aspects of this case – the parameters that you are nearly 100% sure would be (1) mentioned prominently in the decision, and (2) coded into the database. Secondly, ask yourself – Self, of the remaining criteria, those vulnerable to being left out of the data entry process, which are most critical to my argument?
Less is more.
After the offence itself, what is the MOST important fact of the case? And which factors are most likely to be included in the record? Let’s say the fact that the accused had no prior record is an important factor. Select “Record” in the left-hand menu, and then click on “No previous custodial sentence.” Our number has dropped to 6 – that’s with no other parameters but the charge. Is this a reliable result? Yes, in the positive sense that we have 6 cases where the accused had no prior record – but NOT in the negative sense. The search has probably screened out many relevant cases where the accused had no criminal record, but where that piece of information did not make it into the database.
For the present example, the correct strategy is to select the offence, then click on your other important criteria one at a time to get cases where the courts considered each of the relevant factors. If you select more than a couple of boxes, you are overlying on contingencies of the data entry process.
The same applies to criteria under COMPLAINANT, CONDITIONS, DETAILS OF CASE, DETAILS OF OFFENCE, JUDGEMENT, PRE-SENTENCE, and RECORD. Only select additional parameters carefully, while keeping an eye on that results box.
A more general strategy would be to first select the charge, then one further key parameter. If the number of results is still high, select the next most important factor, and work your way down – but always check what effect each parameter has on the results, watch for dramatic drops in the number of decisions, and reflect on whether each factor is likely to eliminate good results.
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
Don’t Just Take My Recommendation: The Dependant Client (Part 4 of 9)
In this fourth post of a series inspired by Justice Carole Curtis’s Dealing with the Difficult Client, we discuss the dependant client. The dependent client can appear like the perfect client. The client looks to you for answers and easily accepts your recommendations. If a file goes smoothly, no problem. But if something goes awry the client will blame you for a critical decision.
As the lawyer you are not the decision-maker. Your role is to be an advisor and to help the client make decisions. Make it clear to the dependant client that important decisions are wholly in the client’s hands. Inform and empower the client. Document decisions with reporting letters and/or emails.
The dependent client can be encouraged to depend on a trusted advisor other than the lawyer. So long as the trusted advisor is not exercising undue influence (such as may be the case when a beneficiary to a will appears to make all the decisions), this trusted advisor can help keep the boundaries between lawyer and client.
The risk for malpractice claims arise here when the dependent client points the finger at the lawyer and claims the client was never able to make decision. Did the lawyer give the client time to think about critical decisions? Did the lawyer outline the possible outcomes, the risks associated with the outcomes, and the costs involved with each? Did the client clearly give the lawyer instructions to pursue a line of action? The answer to each question should be yes, and an effective way to protect yourself is to docket and document all of the interactions above.
E-Mail Pointers for the Millennial Generation (And Others)
For a humorous take on how not to use e-mail at work: http://qz.com/400461/twelve-ways-to-seem-smarter-by-email/
My own suggestions follow.
Caution
Don’t reply in haste, much less in anger. Think twice before sending something you think is funny.
Proof-read; don’t rely on spell-check.
Beware of ‘bcc’, ‘reply all’, distribution lists and auto-fill for recipient names – especially when you are dealing with privileged and confidential information. Make sure metadata are scrubbed from attachments (they may not be when you use a mobile device).
Think about who needs to be copied (and who does not).
You represent your firm and yourself in every e-mail sent to third parties.
Content
The ‘subject’ field should contain a brief but meaningful summary of the content of the message. This helps the recipient find the relevant e-mail later, when it’s buried amidst the other thousand things in the in-box. It’s also helpful to summarise the message in the first line or two of the message itself.
One subject per e-mail (this makes them easier to file and retrieve later). Short sentences, short paragraphs, short e-mails. Headings are useful.
Attachments can be annoying (especially if they are other e-mails containing their own attachments).
Use the ‘high priority’ flag very sparingly, if at all.
Courtesy
Be responsive, even if it’s to acknowledge receipt and say you’ll respond later at greater length.
Know when e-mail is not appropriate. If the senior partner calls you on the phone, respond in kind.
Don’t use your mobile device in meetings. It’s rude. If you have to check e-mail or deal with something, step outside.
Think about timing: don’t send and then vanish. Also remember that many people sleep with a mobile device on the bedside table. Your 4 a.m. ping may wake a sleeping client or partner.
Don’t ask recipients to check a box acknowledging that they’ve read your e-mail: it’s passive-aggressive and annoying.
Always set an ‘out of office’ message when you’re not around; this helps to manage expectations. Remember to turn it off as soon as you’re back.
Emoticons and emojis
Tone can be difficult to convey in an e-mail. What you intended as light-hearted banter can be interpreted by the recipient as a snarky comment. So, you might be tempted to resort to one of those cute little pictures that proliferate in your text messages, in order to indicate that it’s all intended in fun.
Don’t succumb to this temptation if (a) the recipient of your e-mail is older than you are, (b) the exchange is professional rather than personal or (c) both (a) and (b). Use smiley faces all you want with your assistant, your friends at another firm or the other associates in your group (but only when you’re scheduling after-works drinks, not when you’re talking about a file).
Otherwise: NO emojis.
Formality
In a business setting, e-mail can be a bit more casual than a letter or opinion, but you may want to clothe it in more formal dress when providing advice or replying in a thoughtful way. One-word or one-sentence replies are one thing, but if the message or the recipient is important, your e-mail should be more like a traditional letter.
Always use proper punctuation, capitalisation and grammar. Professional e-mail is no place for LOL, LMFAO, WTF and the like.
‘Hi Dave’ may be an appropriate opener when you’re writing to your peer at another firm, but probably not when it’s some crusty senior partner at McCarthys. ‘Dear So-and-so’ may seem a bit weird in an e-mail, but fear not that it may suggest that an affectionate relationship is being claimed.
Format
Don’t experiment with fonts and formatting. Stick to a standard template – and always include your signature block (with a link to your LinkedIn profile and Twitter feed, if appropriate).
Taming the in-box
Create folders, arranged by client or subject. Save e-mail to your document-management system, if you can. Ruthlessly delete the unnecessary. I never have more than 10 messages in my in-box, if I can help it.
Next time: your queries answered, part 2
Deciphering Citations for the English Reports
Every so often someone comes to the library with what looks like a particularly odd citation for a case. Odd citations are often a tip-off that the case comes from the English Reports.
The English Reports, also known as the ERs, are a collection of judgments from a number of different English reporters. Because they have been republished, they have a minimum of two citations, e.g. Chudleigh’s Case can be cited both as Jenk. 276 (the original report) and 145 ER 199. The original judgements are known as “nominate reports” because their names generally come from the surname of the original reporter (e.g. Jenk for Jenkins). The abbreviations of the names are what results in the odd citations (e.g. Lush. Adm. is an abbreviation for Lushington’s Admiralty Reports).
The English Reports can be found on CommonLII, HeinOnline and Justis, in addition to other databases. JustCite has a helpful list of abbreviations for the various English Reports.
(If you enjoy catty commentary on law reports, I highly recommend the Wikipedia entry for Espinasse’s Reports.)
