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Talking to Lawyers About Words
Accountants are trained in numbers. Architects are trained in design. And lawyers are trained in words.
As a lawyer, when you speak or write, you choose your words judiciously. Am I right?
Every.
Single.
Word.
Means.
Something.
Very.
Specific.
That is all well and good when it comes to serving clients as a lawyer. Not as well or good when it comes to developing a marketing program (and, yes, I am intentionally taking creative license with my words here for effect).
Here’s the problem…
Lawyers can write. As a result, some think they can, and in fact should, write their own marketing copy for taglines, websites, brochures and more. But, great marketing isn’t about being detailed, accurate or specific. It’s about creating connections with your reader.
So, for today’s tip?
Take a step back. Notice the different intention placed on words used in a legal context and words used in a marketing context… even when marketing a lawyer.
As a lawyer, there is still a place for you to contribute to your own marketing. Write your own articles for your blog and other publications. Write your own updates for social media. If you’ve got great marketing copy and direction in place, to direct traffic so to speak, these peripheral pieces will actually be better because you wrote them.
—
For more reading on marketing copy, see these past articles on SlawTips:
Also, see the following articles by Sandra Bekhor at Toronto Marketing Blog:
- The Tagline: A Hidden Gem in the Branding Toolbox
- Law firms – Craft the right message to stand out from crowd
Singular or Plural?
It’s surprising that people routinely get things wrong here.
Alternative subjects
If there are two subjects to your sentence, separated by or, the verb should take the number of the subject that is closest to it: Mother or children are to die BUT Is the mother or the children to die? You could also rewrite the sentences to avoid the issue: Mother or children must die, Must mother or children die?
Collective nouns
Is it The committee is or The committee are? There are two schools of thought.
In the US, words like committee, firm and board are invariably treated as singular: the entity not its constituent parts.
There is a good case to be made, however, that these words can take a plural verb when you want to emphasise the members of the group over the totality: The [individual members of the] jury are casting votes BUT The jury [the body] reached its verdict; The board has agreed on most issues BUT The board are unable to reach consensus on the thorniest question.
Fowler’s Modern English Usage supports this view, with these examples: The Cabinet is divided (on the grounds that the whole logically precedes division) but The Cabinet are agreed (because it takes two or more individuals to agree). Fowler notes that the distinction can be ‘delicate’, and is one that few will bother to make; ‘any attempt to elaborate rules would be waste labour.’
Current practice in the UK probably goes further than what Fowler had in mind, with results that have some logic but which look outlandish to North Americans. Recent examples from the British press: The digital music giant [Apple Inc.] are unlikely to be impressed by the demand [from Adele to have hard copies of her new album available in Apple stores); Australia [the Australian rugby team] deserve to win the final.
Whichever way you go, make sure you are internally consistent: don’t say During their time in office, the Government has …
None
This is singular or plural, depending on the context. I looked for books on this subject in the library, but there were none BUT I asked for a volunteer, but none was forthcoming. I would say None of the partners is attending, on the assumption that none is a proxy for not one.
Red herrings
Don’t let extra words throw your sense of number off.
This sort of thing is wrong (but very common): One in five kids who grew up with the internet believe all of it is true (from Quartz). So is this (from the Globe & Mail): Wave of refugees show Europe’s disarray in tackling the crisis… (the verb must be shows, unless you’re taking the position that wave is a plural collective).
There is, there are
There may seem like a singular subject in constructions like There is no excuse for getting this wrong, but it’s not the subject of the sentence (excuse is, actually). There is, in grammatical terms, an expletive (but not the NSFW kind).
As a result, whether it’s there is or there are depends on what follows. So, There is no excuse but There are many things to consider.
Things that aren’t singular
Criteria: We get this from Greek. Singular criterion, plural criteria. Associates are evaluated according to these criteria …
Data: Latin. Singular datum, plural data. The economic data indicate …, as the Financial Times would correctly say. (And it’s best pronounced DAY-ta not DAH-ta.)
Media: More Latin; plural of medium. The medium is the message, and social media are proving that point.
Phenomena: Greek again. This is plural; the singular is phenomenon.
Things that aren’t plural
Biceps: Latin again. Routinely treated as a plural, but it’s not. The correct plural is bicipites, but your trainer is unlikely to understand that; bicepses is better (although it may still attract funny looks).
Kudos: Those pesky Greeks. It means ‘praise’ (singular), so it’s incorrect to say kudos go to so-and-so; and the second syllable rhymes with ‘loss’ not ‘rose’.
Quadriceps: See biceps.
Shambles: Something is a shambles or in a shambles not in shambles (shambles is singular; it means slaughter-house; figuratively, a scene of disorder or devastation).
Triceps: See biceps.
Things that could be either
Forceps: Both singular and plural.
Innings: Both singular and plural. The US singular form inning is a semi-barbarous back-formation.
Lots: There is lots to do in New York BUT There are lots of things to see there.
Things that don’t have a singular form without –s (or don’t usually)
Amends, cahoots, clothes, glasses (in the sense of spectacles), loggerheads, pants, scissors, shenanigans, shorts, smithereens, spectacles (in the sense of glasses).
Trousers is not generally seen without a final S, but one does say trouser-leg, trouser-pocket and trouser-press; and thank-offering is a survival of the obsolete singular thank (a grateful or kindly thought).
Next: e-mail pointers for the millennial generation (and others).
4 Questions to Ask About Any Database (Part 4)
This is the fourth and final part of a series on questions you should ask about any electronic research source. Catch parts 1-3 of this series here, here and here.
4. How are the results ORDERED?
Don’t assume relevance ranking. Our databases, for example, always order the results in reverse chronology (newest to oldest). These days, many databases offer ranking options (usually in a drop-down menu). So if you are looking at a case law database, think about if you want your results by relevance, date, court level or number of cites. If there are a large number of hits (and you can’t think of how to reduce them), then relevancy may be best. For a small number, level of court or number of citations may be better.
Increasingly, searching filters, such as a menu allowing you to limit to documents from only a single jurisdiction, court level, or date span, can be applied after the search – whereas traditionally they were applied beforehand. CanLII and WestlawNext are two good examples from the Canadian legal world. Filtering search results is a very useful feature – it enables you to search broadly, then gives you considerable control over how the results are displayed and what types of records are visible.
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
Accentuating the Negative
Multiple negatives
In grammar, the general rule is that you shouldn’t use two negatives. It’s incorrect to say I didn’t see no one, although people will know what you mean. The correct thing is, obviously, I didn’t see anyone.
Contractual drafters like to avoid double negatives because they give rise to ambiguity. The concern isn’t so much over a sentence like I didn’t see know no one, but with repeated use of not or other negatives in a long, complicated sentence where the net effect may be uncertain.
Not all languages are averse to the double negative. Think of French: ne … pas, ne … jamais, ne … rien. And in Greek, negation is piled on negation to create a multi-layered expression of dissent, refusal or denial (something the Greeks have been doing a lot of in recent years).
There are times in English when a double negative can express a subtle shading of doubt or negativity, without outright contradiction. To say I don’t disagree is a bit less certain than the categorical I agree, and that may be a desirable effect. I’ve always wanted to throw this one into conversation, just to see the reaction: I’m not sure that I don’t disagree with you. How’s that for hedging?
Not enough negativity
Sometimes people underuse the negative.
A gaffe that grammarians love to point out is I could care less, when it’s used to express lack of interest in something. If you think about it, it actually means you do care about whatever it is, because it would be possible to care to a lesser degree. You should say you couldn’t care less if you don’t care at all.
Nor
A word or two about nor would be in order too. The correct construction is neither … nor (and either … or). By way of example: It is neither fish nor flesh, nor good red herring; either you understand this or you don’t.
As a general rule, don’t use nor if your previous negative is just not (or no). This is wrong: The Tenant agrees that it will not use nor permit the use of any asbestos, polychlorinated biphenyls … So is this (from Lexology): Discontinuing Free App is Not Unfair Competition Nor False Advertising under California Law. When more words pile up between not and what should be or, it’s easy to lose the plot and put a misplaced nor.
Exception: use nor to reinforce a previous negative statement, where nor is preceded by some punctuation (comma, semi-colon, colon, dash) and introduces a new clause. Example: I was not present at the scene of the crime, nor was I even aware that my friends were there.
——-
In short, think about whether – and how – to negate. And remember the words of that immortal bard, Sir Tom Jones: It’s not unusual …
Next time: singular or plural?
Creating a Complete History of Legislation
The easiest way to create a history of an act is to start with the most recent version of the legislation and work your way backwards. Going forward tends to be more complicated.
Depending on your jurisdiction and how far back you need to go, you may be able to do this entirely using electronic resources. Provincial historical legislation is now available on HeinOnline; check with your law society or library to see if you have access.
Let’s take the (now repealed) Bee Act, RSBC 1996, c 29 as an example. Using the Tables of Legislative Changes on BC Laws, you can see all the changes made to the act since 1996. (Alternatively, you could have used the Table of Statutes at the back of the annual statutes.) You can then look at the Historical Table for the Bee Act which provides a concordance between RSBC 1979 and 1996. Then, depending on what resources are available to you, you can finish the legislative research using HeinOnline or print resources.
The end result looks like:
| Foul Brood Bees Act, RSBC 1911, c 18 | Amended by SBC 1919, c 7; SBC 1923, c 2; SBC 1920, c 6. NOTE: Renamed Apiaries Act by SBC 1919, c 7 |
| Apiaries Act, RSBC 1924, c 12 | Amended by SBC 1929, c 4, s 2; SBC 1930, c 3, s 2. |
| Apiaries Act, RSBC 1936, c 11 | Amended by SBC 1947, c 5 |
| Apiaries Act, RSBC 1948, c 14 | Amended by SBC 1959, c 3 |
| Apiaries Act, RSBC 1960, c 12 | Amended by SBC 1963, c 2. Repealed by S.B.C. 1975, c. 6 |
| Bee Act, SBC 1975, c 6 | Amended by SBC 1977, c 2, s 14; SBC 1977, c 75, s 10; SBC 1979, c 22, s 4 |
| Bee Act, RSBC 1979, c 27 | Amended by SBC 1980, c 29, s 10; SBC 1980, c 50, s 2; SBC 1988, c 31, ss 1-4. |
| Bee Act, RSBC 1996, c 29 | Amended by SBC 2011, c 25, s 481, Sch (in force 18 Mar 2013); SBC 2007, c 14, ss 213, 215, Sch (in force 1 Dec 2007). Repealed by SBC 2003, c 7, s 4, effective January 19, 2015 (BC Reg 3/2015) |
The two most common challenges that you run into when creating legislative histories are that a) the act is repealed and replaced by another act and b) the act changes its name; both of these challenges are easier to deal with when you go backwards.
You can see from the legislative history of the Bee Act, that both these things happened. In 1975 the Bee Act replaced the existing Apiaries Act. Since I was going backwards I could see that section 32 (1) of SBC 1975, c 6 reads “The Apiaries Act is repealed.” so I knew that there had been an equivalent act to the Bee Act. Similarly in 1919, the name of the act changed from the Foul Brood Bees Act to the Apiaries Act. Since I was going backwards I could see that section 3 of SBC 1919, c 7 changes the short title.
What if you are trying to create a legislative history of a section of an act rather than the whole act?
Again, it is easier to trace it backwards rather than forwards. One challenge is that when acts are consolidated, the sections are renumbered. For example, section 68 of the Income Tax Act, RSBC 1996, c. 215 is not the same as section 68 of the Income Tax Act, RSBC 1979, c 190.
Use the RSBC to find what the equivalent section of an act was in a previous revision. Find the section of interest in the print RSBC volume; the legislative history will be at the bottom of the section.
One challenge that can arise when an act replaces (rather than revises) the previous act, since a legislative history is usually not given. In this situation you may find yourself having to read through the entire act to find the equivalent section. Sometimes (albeit infrequently) there may be a concordance between the two versions of the act. If a concordance doesn’t exist, Hansard can be helpful, since it may indicate what happened to a specific section.
My thanks to Stef Alexandru of Lawson Lundell for the inspiration for this tip.
7 Social Media Tips for 2017
Today’s tip is simply to share some basic reminders for making the most of your social media this coming year.
- There is effort in social media. Pick one or two services/platforms/techs and schedule the time to actually work them.
- Use all tech as intended. LinkedIn was created for business networking; twitter for little bits of you; Facebook for more personal connections.
- Any social media postings will impact your digital image and credibility. Once you start – keep going; no fits and spurts for maximum SEO.
- Fill in your profile. Use professional head shot – you want people to know, like and trust so let ’em see what ya look like.
- If your head shot is showing, it must be you who is publishing. If an account is for an organization or you delegate the writing to an assistant, use a logo or other non-you avatar/photo.
- When signing up for an account, don’t upload your contact list to any social media. Locate and click on the “skip this step”. Your friends will find you.
- Give. Educate. Assist. Don’t sell. Social media is for connecting not selling.
These tips really are simple and straightforward, but they’re also easy to overlook or lose sight of!
Andrea Cannavina (@AndreaCan) helps law firms organize, automate and implement business process improvements to create efficient workflows and happier staff.
And/or, And, Or
And/or
The construction and/or is criticised by grammarians, prose stylists and many legal drafters (both contractual and statutory). There are good reasons for this.
H.W. Fowler called and/or an ‘ugly device’. It looks as though you couldn’t take the time to think things through and express yourself other than by way of a fairly crude (if expedient) short form. And/or also has an air of the commercial purchase order to it.
There are other reasons to avoid and/or, and they relate to the meaning (and ambiguity) of words.
Disjunctive and, conjunctive or
We usually think of and as being conjunctive – that is, grouping things together – rather than disjunctive (separating things or presenting alternatives). Similarly, or is usually disjunctive. This is largely true, but not always.
Consider these examples:
The Minister of Finance may do X and Y [he can do both X and Y, but he is also free to do only one of them or neither – so and is not only conjunctive but also potentially disjunctive]
The Minister of Justice may do X or Y [here again, she could do either one or neither, but she could also do both – a conjunctive or is one possible interpretation]
To avoid confusion, you are better to say one of the following:
- both A and B
- A or B, but not both
- either A or B
- A or B, or both
Otherwise, your fate may be like that of the New Jersey judge in this recent case, where repeated use of and/or rendered her jury instructions so ‘hopelessly ambiguous’ that a new trial was ordered.
In contractual (and legislative) drafting, you probably want to avoid any ambiguity that might arise from and/or; in other kinds of legal writing, and/or just isn’t elegant.
Next tip: accentuating the negative
New Government, New Tax Changes. Here’s What You Need to Know About Tax in 2017.
Personal tax rates have changed. The tax rate on income between $45,282 and $90,563 has dropped to 20.5 per cent from 22 per cent. Conversely, on income over $200,000, the rate has increased to 33 per cent from 29 percent.
TFSA contribution limits are lower. The TFSA contribution limit has dropped back to $5,500 in 2016 from $10,000 in 2015, If you have not maxed out your contributions every year since TFSAs were introduced, you may have up to $46,500 in contribution room.
Donation credits have changed. For those earning over $200,000, there’s now a 33 per cent donation credit rate – up from 29 per cent. According to Deloitte, “for any donations made in excess of $200 where the individual’s taxable income is less than $200,000, a 29 per cent credit will continue to apply.” That’s good news for higher-net-worth individuals: “
A new child benefit. The Trudeau government replaced the Child Tax Credit, the Universal Child Care Benefit and the Canada Child Tax Benefit with a new Canada Child Benefit that better helps families with lower net. The Children’s Fitness Tax Credit and Children’s Arts Tax Credit, worth up to $150 and $75 per child, respectively, are also being cut in half in 2016 and then eliminated
Eligible capital property will be taxed differently. Capital gains are taxed in a corporation at essentially the same rate an individual is taxed at, says Mr. Cameron. In the 2016 federal budget, the government introduced changes to the way eligible capital property is taxed in a corporation.
The beginning of the year is a good time to look at the impact of these changes and start planning now.
—Jackie Porter (@askjackieporter)
4 Questions to Ask About Any Database (Part 3)
This is part 3 of a series on questions you should ask about any electronic research source. Did you miss parts 1 & 2? Find them here and here.
3. What is the Search SYNTAX?
Know your operators – every search is different. Until you know the basic commands for a site – AND, OR, Phrase, etc. – you should consult the “search tips” or “connectors” every time. Many sites include a link to their search tips, operators, connectors, or “search help.” Some, like Saskatchewan Cases, display the operators right on the search page. In CanLII, scroll over the question marks at the end of the command lines for basic commands, and from there click on help page for more detail.
A closely-related and equally crucial question (and the fifth in the list, if you think the thumb is a finger) – what is the default operator? How will the search interpret two words beside each other in the command line without any connector between them? For our Law Society research databases, it is always a phrase – the search will look for those two words in the same order. That’s a bit unusual. Many search engines default to AND, and some to OR.
Increasingly common, though, is a type of hybrid where the search engine looks for the words (1) together in order (phrase), (2) both included but not necessarily together (AND), and (3) either word (OR) – then an algorithm sorts out the order for you, so the most relevant documents are at the top. Yes, for these types of sites maybe you can ignore everything I’ve said about operators and still get somewhat useful results. Fine. But don’t assume that’s the case – I’m talking to you, Millennials!
Stayed tuned for the 4th and final part of this series.
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
Think Twice: The Vengeful Client (Part 2 of 9)
In this second of nine posts inspired by Justice Carole Curtis’s Dealing with the Difficult Client, we discuss the vengeful client. The vengeful client often has an agenda that is unlikely to be satisfied by legal means. This kind of client has a myopic focus of what goals should be met, and has few qualms about what must be done to meet those goals. Whether it’s an injustice or a personal vendetta, the vengeful client is highly motivated. For example, a family member fighting over an estate may be driven by agendas far beyond the pale – did he feel slighted and ignored in the family, and now wants to get back at his brothers and sisters, no matter the consequences? The scorched earth policy that follows may result in a decimated estate and an unhappy client.
Think twice before accepting a retainer with a vengeful client. You may never be able to right the wrong, and your client may ask you to take steps that are unethical. Even if you reach a legal resolution, you are unlikely to get another referral, much less thanks. Such clients may also lie to you and opposing counsel. Ultimately your reputation is on the line, even if your client is less than trustworthy.
If you do choose to work with the vengeful client, take all instructions in writing, and give all recommendations in writing. While this is good advice for all clients, it is that much more important to do so with the vengeful client, as you can anticipate that whatever legal result you obtain, the client is likely to be unsatisfied.
Finally, bill often and regularly. The vengeful client may expect you to do work above and beyond the call for free – but your job is to be a professional and charge according to the retainer regardless of the degree of zeal involved.
Malpractice claims can arise when clients with a strong sense of purpose are able to persuade counsel to act unprofessionally. No matter how much you agree with a client’s position, no matter how much you like the client, no matter how much you empathize with the client’s predicament, you must stay within professional bounds.
