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Shall, Will, Should, Would, May, Might, Must
A reader’s suggestion, this. Good idea, even though it’s more of a contractual drafting or opinions point than a general legal writing tip.
Shall, will and must
The difference is to a large extent idiomatic – that is, subject more to instinct and feel than hard-and-fast grammatical rules. Usage has also changed over the centuries, and varies between North America and Britain. What follows is a distillation, as best I can manage.
In classic usage, shall is used in the first person (I, we) to indicate a wish or ‘mere futurity’. To say I will or we will indicates an element of intention, volition or choice. So, I shall probably be there but I will never do that.
In North America, I shall and we shall are less commonly heard in the ‘mere futurity’ sense, leaving will to perform both that function and to express stronger intention. This gives rise to ambiguity, because we lose the potential distinction between will and shall. (And shall sometimes performs for us the classic will function, as in We shall overcome.)
In the second person (you) and the third (he, she, it, they), shall takes on the function of command, menace or refusal: You shall repent! or He shall never have any, if I have anything to do with it. Also, Thou shalt not steal, to use the old singular second person (equivalent of tu in French or du in German, as opposed to the plural (or formal singular) vous and Sie.)
In legal drafting, shall is usually used to express a third party’s positive or negative obligations: the Purchaser shall assume all liabilities … Here, shall is synonymous with ‘is obliged to’ or ‘has a duty to’ – command or menace at work. There are arguments that will, if used consistently, would also work: it’s hard to see much of a difference if you said the Purchaser will assume all liabilities – except that shall sounds a bit bossier. But convention (and traditional grammar) are on the side of shall here.
In common parlance must is close to shall in meaning: you must not hit your brother, you shall do this or that. And yet they are not synonymous; in contractual drafting, for example, must often takes on a conditional character: the Borrower must satisfy the following – that is, must do so in order to do something else, but need not.
Should and would
Should is the conditional form of shall. Its use in the first person has all but disappeared from North American usage, but it is classically correct to say I should like to go as a mere expression of desire, and as distinct from the imperative would (I would go, but I can’t).
When used in relation to other people, should is less bossy than shall; it means ‘ought to’, as in you should wash your hands after travelling on the subway. Not dictatorial, if perhaps a bit passive-aggressive.
Should, in opinion-writing, is seen as more qualified than would (this should work as opposed to this would work). William Estey suggests, however, in his book on opinions, that it’s unfair to place the burden on a client to figure out the shades of meaning between the two (and all the other ways we lawyers hedge our own bets). Fair point?
There is also should in this type of construction: Should you wish to leave a message, please do so after the tone. Not incorrect, but fusty – or perhaps fancy for the sake of being fancy. If can always replace should in these instances. Better yet: Please leave a message.
May and might
These can mean the same (or almost the same) when they express possibility: I may go to the party, I might go to the party.
May also expresses permission: ‘You may not go to the party’, the parent told her teenager.
Because of this dual use of may, caution is advised. Avoid using it for negative obligations, since may not could mean either ‘is not permitted to’ or ‘might not’. Better: shall not. In contractual drafting, confine may to the meaning ‘reserves the right to’.
Next time: and/or, and, or.
Set Boundaries: The Angry Client (Part 1 of 9)
“Happy clients are all alike; every unhappy client is unhappy in one’s own way.” (Not Tolstoy)
This is the first in a series of articles inspired from Justice Carole Curtis’s Dealing with the Difficult Client (written when she was a lawyer). One of our most popular downloads, the article covers 9 kinds of difficult clients and how you can work with them. Let’s start with the angry client.
An angry client can take its toll on your ability to practice. Seasoned lawyers can likely recall their most angry clients by name and recite what happened and how. It’s not a happy memory and accumulating such memories makes it that much more difficult to practice. Learn how to work with an angry client, and, knowing your limits, when to stop working with an angry client.
An angry client is one that treats you and your staff in an angry or hostile manner on a regular basis. But a client that is always unhappy is not necessarily a client that is always unhappy with you. I worked with brain-injured clients and clients with mental disorders that treated my staff and I poorly – but I don’t blame their behaviour. Other clients may be angry at circumstances in their lives which have nothing to do with you. Nonetheless, this anger can be re-directed at you. Regardless of the reason for the anger, if your client treats you in a hostile manner, this is not appropriate and you should draw clear boundaries in the lawyer-client relationship.
If the reason for the anger is clearly something you can do something about, then de-escalate the situation. But if the source of anger is clearly out of control, you are not a therapist. Exploring a client’s roots of anger is not your role. Allow the client to vent for a short time. Then make it clear that it is unacceptable in a professional relationship. If the client does not calm down, cancel the meeting and book another time.
If the situation really calls for it, calmly suggest that a therapist would be better equipped to deal with the hostility. To this end, it is helpful to keep a referral sheet at reception for clients in need of social or other services, including telephone numbers and addresses. This is especially helpful for lawyers that frequently deal with clients under high levels of stress, such as poverty lawyers, family lawyers, criminal lawyers, and personal injury lawyers.
It is important that the very first time a client treats you angrily, you respond by saying that it is inappropriate. Boundaries should be drawn early and your response should always be consistent. If you have already allowed a client to treat you in a hostile manner on a regular basis, it is that much harder to change the nature of the relationship (but better late than never).
You can also bet that if the client is treating you poorly, your staff is probably being treated worse, as they are in a weaker power position. Train your staff to respond to anger the same way you do.
Finally, the old maxim to “know thyself” applies here. We all have different tolerance ranges. Know what yours is and do not let a client push you beyond it. If you go beyond what you are capable of tolerating, you may burn out. If a client refuses to take it down a notch, you may be better off terminating the retainer, while keeping in mind the Rules of Professional Conduct. The loss of one client is better than the loss of your practice.
Read the Original Source
In training sessions we always advise articling students to start off their research using secondary sources. While there are instances where it is appropriate to start off research by searching case law and legislation, using secondary sources generally is far more time-efficient since it usually tells you what the relevant legislation and leading cases are. However once you’ve found a reference to a case that appears to be on point, you should not just rely on the summary, but actually read the case. We’ve run into more than one instance where the summary said something quite different from what the case actually said.
You Can Quote Me
First off, the verb is quote and the noun really should be quotation – but I would be fighting a pointless rearguard action in trying to stop people from talking about a quote.
Single and double quotation marks
In the UK, single quotation marks (usually called ‘inverted commas’) are the default, with anything quoted within a quotation going in double quotation marks, like so: She said, ‘The bus driver told me, “You can’t bring such a large animal onto the bus, madam”, but in the end he let me.’
In the US, the position is reversed: double quotation marks to start, single for internal quotations.
Take your pick, but be consistent.
Punctuation
Here again, the Atlantic is the great divide. In the US, all punctuation goes inside the quotation marks, whether it forms part of the quotation or not. In the UK, punctuation goes inside only if it is an actual part of the words quoted (see the example in the previous section).
Quotation marks for special terms
Quotation marks can also be used to ‘to signal that a term is being used in a non[-]standard, ironic, or in another special sense’ (Chicago Manual of Style (2010)).
They can, for instance, be a substitute for so-called: For ‘lunch’, we were given some stale crusts and a glass of flat ginger ale.
Quotation marks are also often used where the term is (or is seen to be) newfangled, a bit slangy. By way of example, I hear that the young people are ‘tweeting’, whatever that means.
Do all of this very, very sparingly – and avoid the trap of thinking that metaphors somehow require quotation marks. There is no need to write The judge ‘pierced the corporate veil’. Even persons of fairly limited intellect will understand that we aren’t talking about an actual veil here. It might be better, in any event, to educate a non-lawyer about disregarding the separate legal personality of a corporation, but without using insider terminology.
For examples of the overuse of quotation marks, see this highly entertaining blog.
US law reviews seem to think that quotation marks for special terms should be single, to differentiate them from actual quotations (which go in double quotation marks), but I can find no real basis for this. This looks like a case of editors creating rules for the sake of it.
Block quotations
If your quotation is long (more than, say, 40 words?), offset it as a centred block of text with wider margins than the main text. Because you have done this, there is no need for quotation marks around the quoted excerpt: you’ve already indicated that it’s a quotation.
Don’t assume anyone will actually read your long excerpt, however. The tendency is, in fact, to skip over big chunks like this (and, perhaps, for the reader to think you were just too lazy to paraphrase or summarise). You therefore need to explain what is to follow.
And don’t end your paragraph or section or piece with a block quotation – it’s usually more effective wrap up in your own words.
Square brackets
1L students quickly learn to do this, when quoting part of a sentence: ‘[A]ctions speak louder than words’ (‘actions’ not having a capital A in the source, but needing one in the writer’s sentence). Only lawyers do this, and 99 times out of a hundred it’s unnecessary. Especially in a client piece.
Square brackets are useful to supply missing things (punctuation, words), make editorial comments (‘[that is, disregard the separate legal personality of a corporation]’) or indicate omissions (‘[…]’) – but you could omit the brackets and just use the ellipsis). Try not to use square brackets too much; they are hard on the eye and may disrupt the flow.
Next: shall, will, should, would, may, might, must
Make Your Next Law Firm Retreat Count!
It’s a new year. Some of us have resolutions that keep us true to what we want to get out of it. Those of us who don’t are still fresh from the holidays and keen on making the most of it. It’s a great time to start planning a retreat for your law firm. Perfect timing, in fact, if you’d like it to take place in the summer or fall.
So, today’s tip?
If you want your next law firm retreat to count, give it a purpose that’s sure to make a mark.
Don’t waste your previous day away with your team on secondary objectives that you can easily address at the office. And don’t turn it into something it’s not. A retreat isn’t a strategic plan, business plan or marketing plan. It’s certainly not another training session or business meeting.
A retreat is a blank slate waiting for a solitary, relevant and moving purpose. If you can achieve that, you’ll be free to discuss, brainstorm, plan and map out real solutions that go beyond surface issues. Creativity will flow, rather than being constrained or scattered by an unrealistic or incoherent agenda.
Aside from giving the retreat energy and focus, your purpose will also make it memorable.
Why does that matter?
It’ll matter when you get back to the office and are faced with business as usual and your retreat rapidly fades into a distant memory. If the retreat makes a big impact on one specific and important topic, participants are more likely to show enthusiasm and commitment about rolling out the resulting action plan.
They may even drive the process.
Don’t worry if there isn’t one obvious purpose jumping out at you now. It’s only January. Take the time to properly explore this. Bring in a consultant for a fresh perspective and expertise in the subject matter. Consider the possibility of conducting private interviews, focus groups or a survey that will help you to delve deep into a specific issue or opportunity expected to make a real difference to the firm’s future.
Identifying a purpose for your retreat will be the single most important decision that you make about your retreat. Besides which, the process of choosing a winning purpose that deserves your attention, will add great value in and of itself.
—
For more tips on planning a law firm retreat, see the following previous posts on SlawTips:
- 11 Reasons Why Your Law Firm Should Have an Annual Retreat
- The Law Office Backyard Retreat
- The ‘Law Office Backyard Retreat’ Report
Also, see Sandra Bekhor’s previous posts at Toronto Marketing Blog:
4 Questions to Ask About Any Database (Part 2)
This is part 2 of a series on questions you should ask about any electronic research source. See part 1 of this series here.
2. What constitutes a RECORD?
What are the individual things the database consists of?
Some case law databases, like Saskatchewan Cases or the Canadian Abridgment, consist of summaries or digests. Others, like CanLII, consist of primary law – judgments and legislation. In others, such as the case law components of Quicklaw and WestlawNext, you can search a combination of summaries and full-text documents. Knowing if you are searching a short summary or full-text decision is very important in formulating your search.
The Saskatchewan Bills database has a unique scope. Each record constitutes a Saskatchewan statute that was affected – created, amended, or repealed – by a Saskatchewan bill. So note that although the database is called “Bills,” the individual records are not bills but statutes, as they were affected by the bills. Thus, there will be a separate record each time a statute is amended, and separate records for each statute affected by single bill. This sounds a bit complicated, but users of the database will agree that there is tremendous advantage to this structure when conducting statutory research.
Coming soon: part 3!
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
Beginnings and Endings
Openings and closing of business correspondence, that is.
My father, an old-fashioned lawyer if there ever was one, once said there are only two ways to start and close a business letter: either Dear Sir/Yours faithfully or Dear Mr So-and-so/Yours truly, depending on one’s level of acquaintance with the recipient. (And not very truly: one is true or one is not, no more no less.)
There is a certain simplicity to that, and it can be made female-friendly without difficulty. My own views follow.
Beginnings
Younger folk appear to have this strange view that ‘Dear’ at the start of a letter somehow suggests an affectionate relationship is being claimed.
Dear Sir is a little warmer than just Sir, but it’s by no means touchy-feely (Dear Sir, Your account now being considerably in arrears, …). That said, Dear may look a bit old-fashioned in a more casual e-mail, where Hello Neil or Hi Neil seems largely to have displaced Dear Neil. I would confine the hi and hello business to purely casual exchanges, however, and inject more formality into an e-mail message that contains considered legal advice.
Dear Mary in a business letter? If you want – but a more elegant way to do it is to type Dear Ms Wang, cross that out in pen and write in her first name. In England, it’s usual in business letters to leave out the salutation and the Yours truly bit entirely, leaving blank space which the writer fills in by hand, with whatever degree of formality seems appropriate.
If you are at the Dear Sir level, the female equivalent is Madam. Not Madame – although the plural of Madam (in this context) is Mesdames not Madams (which is the plural form for women who run brothels).
One sometimes used to see Gentlemen as a substitute for (Dear) Sirs in letters addressed to a firm in general (typically, opinion letters). The gender-neutral equivalent really should be Dear Sirs and Mesdames; the formulation Ladies and Gentlemen that people sometimes use has (to me, anyway) an air of the circus tent to it (Ladies and gentlemen, boys and girls! the greatest show on earth!).
Endings
I think my father is correct that these should be on the formal side. Save (Yours) sincerely for social correspondence.
And, if I could, I would banish regards of all sorts (kind, warm, best, fond, whatevs). You’re never going to send regards that are unkind, lukewarm, worst, not quite best – and is it really necessary to send them in the first place? I confess, though, that I do sometimes add Best wishes or just Best if the e-mail needs to sound a bit friendlier – but I cringe inwardly while doing it. For a compelling case to omit all of this sort of stuff, see this article by Rebecca Greenfield of Bloomberg Business.
Similarly, avoid worn-out and meaningless phrases like Please do not hesitate to contact me … The reader may well be inclined to think ‘of course I won’t hesitate – what sort of shrinking violet does she think I am?’ – or alternatively, ‘I’ll hesitate if I bloody well want to; you charge by the hour and I’ll only get in touch if necessary, since everything is on the clock.’ Either way, it’s useless.
Always include a standard signature block in e-mails that are going to external parties. It’s useful to include relevant professional information, like links to your LinkedIn profile and Twitter feed.
Beginnings and endings
I don’t put a comma after Yours truly and the like. I also omit one (or a colon) after Dear So-and-so at the top of a letter. More modern, cleaner typographically, no loss of sense.
Next time: you can quote me
Finding Labour Arbitration Decisions
One difficulty with finding labour arbitration decisions is a lack of uniformity in the style of cause; sometimes the union’s name may be fully spelled out, other times it may be abbreviated, or it may be omitted altogether and the name of the griever used. As a result, it can be faster to find a decision by searching by arbitrator’s name and the dates rather than the party names.
CanLII, Quicklaw and WestlawNext all carry labour arbitration decisions, although their coverage varies. You can find them in the following databases:
CanLII
- Federal Labour Arbitration Awards (incomplete coverage from 1989 on)
- Alberta Grievance Arbitration Awards (complete coverage from 2007 on and incomplete coverage from 1998 on)
- BC Labour Arbitration Awards (incomplete coverage from 1998 on)
- Manitoba Labour Arbitration Awards (incomplete coverage from 1998 on)
- New Brunswick Labour Arbitration Awards (incomplete coverage from 1998 on)
- Newfoundland Labour Arbitration Awards (incomplete coverage from 1998 on)
- Northwest Territories Labour Arbitration Awards (incomplete coverage from 1999 on)
- Nova Scotia Labour Arbitration Awards (incomplete coverage from 1998 on)
- Ontario Labour Arbitration Awards (incomplete coverage from 1986 on)
- Prince Edward Island Labour Arbitration Awards (incomplete coverage from 2011 on)
- Quebec Labour Arbitration Awards (incomplete coverage from 1990 on)
- Saskatchewan Labour Arbitration Awards (incomplete coverage from 1981 on)
Quicklaw
- All Labour Arbitration Awards database
WestlawNext
- Labour Arbitration Cases (L.A.C.)
- Canadian Labour Arbitration Summaries (C.L.A.S.)
- Labour Cases and Decisions
There are two types of labour arbitration decisions: grievance arbitrations and interest arbitrations. Grievance arbitration is “a mechanism to resolve disputes about the interpretation and application of a collective agreement during the term of that agreement” whereas interest arbitration refers to “a mechanism to renew or establish a new collective agreement for parties without the right to strike/lock-out”.
Section 59 of the Canada Labour Code states “A copy of every order or decision of an arbitrator or arbitration board shall be filed with the Minister by the arbitrator or arbitration board chairperson and shall be available to the public in circumstances prescribed by the Governor in Council.” However, this only applies to grievance arbitrations and there does not appear to be an equivalent requirement for interest arbitrations under section 79 of the CLC.
Similarly, section 96 of British Columbia’s Labour Relations Code states that “An arbitration board must, within 10 days of issuing an award, file a copy of it with the director who must make the award available for public inspection.” British Columbia’s Collective Agreement Arbitration Bureau then forwards the decision to various agencies for public access.
3 Reasons to Embrace Uncertainty in 2017
It seems there is never a shortage of bad news going around. 2016 has certainly had its share. Brexit, the unexpected presidency of Donald Trump, corporate restructures, not to mention turbulent financial markets. Most people approach the New Year with excitement and hope. However, what happens after the first bit of bad news hits your world? Whether its job loss, health crisis or stock market volatility? How do you handle it? What can you do learn from, thrive and find opportunity in it?
In baseball you can only score points/runs by taking risks. Playing it safe is not progress. Progress involves moving forward, taking chances and stepping outside your comfort zone. However, as with everything you must play it smart.
1) Ask yourself… Moving forward how can I minimize risks?
Learn everything you can about the problem you are facing. Concerned about the markets? Find out what is happening in the investment world. Take a course. If you are working with an advisor ask them for resources where you can learn more as a new investor. Get more involved and you will feel more in control.
2) Stretch yourself. Especially about things you fear.
Concerned about losing your job? Beef up your resume. Become more skilled at what you do. Ask yourself- What can I do to become a more invaluable employee, not just to your current employer, but to the industry you work in as a whole? Act as if you’re self-employed and take note of the results.
3) See the glass as full. There is always opportunity in failure and in uncertainty.
Ask Warren Buffet. His mantra is: “Be greedy when others are fearful and be fearful when others are greedy”. Look for the silver lining. I will never forget when I met a cancer survivor who said she was glad she had gone through the experience. She realized what she was capable of and what was important in her life.
Embracing uncertainty can be the ultimate gift that life has to offer…
—Jackie Porter (@askjackieporter)
Miscellaneous Little Things That Annoy Me
Oh, so many of these – but I’ll mention just a few (for now).
Can not
No. It’s one word in modern English: cannot. And when you say it, the emphasis is generally on the first syllable.
Sometime
Spell-check thinks this always has to be one word. It doesn’t. As a single word, it means ‘former’: Bob Sharpe, sometime dean of law at U. of T., is now on the Ontario Court of Appeal. But Let’s have coffee some time and At some time in the future, we’ll see … (I acknowledge, however, that current usage may be against me on this.)
Outside of
Drop the of! It’s unnecessary and incorrect. So just this: outside the house, outside Canada, outside the realm of possibility etc. Same goes for inside.
The reason is because …
No! The reason is that… Always, always, always.
A couple things
Wrong! It must be A couple of things (even though you would correctly say a few things—who said English was regular?)
Prior
As in, Should we meet prior? A construction I’m hearing a lot, and one that is irritating me. Prior here needs to be followed by to and something more (prior to doing XYZ). If you’re tempted to use prior on its own, substitute earlier, before or previously.
As an adjective, prior is fine (prior testimony), but remember that good old rule of thumb that a word with Anglo-Saxon roots (like earlier or before) is more forceful and direct than one that comes to us through Latin or French (like prior or previous). To give you an example, compare the fancy, Latinate words copulate and defecate with their one-syllable Anglo-Saxon equivalents. The latter certainly pack more of a punch.
Consider it to be X/find it to be X
This isn’t actually wrong, but it’s inelegant. Better just to find something X. I find him boring has a better ring than I find him to be boring, no?
Fulfill
Take off the final L. And it’s fulfilment. Only two Ls in wilful too.
Did you want milk or cream with that?
I did want milk, and I still do. Or maybe I’ve changed my mind.
Or maybe you should use the conditional (Would you like milk or cream?) or the present tense (Do you want …) instead of this weird, incorrect use of the past tense.
Like
Don’t even get me started on its annoying use as meaningless filler in speech, particularly by those under 30.
What I hate in a written context is like in the past, like in the movies, like in the recent decision, like I said. What you mean is as not like. Reserve like for like me, like a virgin and the like (like plus noun or pronoun without a verb attached, or an adverb like so).
Next time: beginnings and endings
