All Our Tips
A Bright-Line Test
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?
Finding the History of a Section of the Canadian Criminal Code
This was adapted from a discussion on the CALL listserv; many thanks to Jenny Thornhill, Bronwyn Guiton and Alexandra Everitt.
Unfortunately there is no easy tool that will allow you easily track the changes to a specific section of the Criminal Code over the years, but the following two resources may be helpful:
- Martin’s Online Criminal Code includes versions of the Criminal Code from 1955 on and is searchable.
- Crankshaw’s Criminal Code of Canada is available both in print and online through Westlaw Canada. Bronwyn Guiton noted that “Crankshaw’s isn’t always reliable in bridging major changes in provisions however and so some work may be needed to verify your findings. For example, it doesn’t do a good job of telling the reader that prior to sexual assault, the prior equivalent provision referred to the same offence as something else. That’s where the concordance/historical table comes in.”
Permitting and Permissioning
Related, and problematic.
Permit as a noun meaning ‘licence’ is totally fine (In Canada, we require owners of guns to have permits), as is the verb form when it means ‘to allow’ (Smoking is not permitted).
In legal usage – and I think mostly in US legal usage – permit as a verb has come to mean ‘to license’ or ‘to issue a permit to’ (The permitting of architects is governed the relevant statute and professional rules).
I haven’t heard how permitting in that last sense is pronounced, but I suspect it may more like PER-mitting than per-MITT-ing. (The latter would be correct in something like weather permitting, of course.)
Better to avoid permitting in the regulatory context, I think.
Worse is permissioning, which you may encounter if you deal with the technical aspects of document security in your legal workplace (Permissioning can be controlled at a file or matter level, or individually by user).
Avoid this altogether, especially when it’s easy (and more elegant) to say something like Permission can be granted …
Now that we’ve entered the realm of knowledge management and legal tech, templating is now something people seem to do.
Please don’t. Just create a template (or model or precedent or sample).
Well, That’s Different
The data analytics unit at one of what we used to call the Big Four accounting firms exhorts us to Think different. Do different. Be different.
Be different is fine (grammatically and as a matter of practice), but the other two? Oh, dear.
They really should be Think differently and Do differently, as those verbs need adverbs (typically ending in –ly) rather than adjectives like different.
The copywriters wanted something that would catch the eye, of course – even if that meant resorting to a grammatical solecism.
What these phrases mean is ‘Think[or do] that which is different’ – but that would be too much of a mouthful (or eyeful).
So, there is a logic to the construction, but it’s still a stretch grammatically.
Sometimes an adverb is not required: Think big, Think pink, Think victory. But with different, let’s just say it’s different.
And besides, the whole verb + different formulation is a bit of a cliché: Apple is famous for Think different back in the late 90s; and CBC Radio has recently used Hear different in exactly the same way.
Find Plain Language Summaries of SCC Decisions
[Admin note: thanks to Karen Sawatzky of Manitoba’s Great Library for this tip; it was originally published on Great LEXpectations.]
Did you know? Plain language summaries of SCC decisions are available under “Cases in Brief”:
Cases in Brief are short summaries of the Court’s written decisions drafted in reader-friendly language, so that anyone interested can learn about the decisions that affect their lives.
They are prepared by communications staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.
These summaries cover decisions from 2018 on. This looks like a handy resource to refer to clients or self represented litigants who need to understand a decision but are struggling to read the legalese. Or lawyers who want to be up on the law and it’s not in their area of practice.
Finding Ministerial Orders
Ministerial Orders refer to orders “created under the authority granted to a minister under a statute or regulation that are made by a Minister” as opposed to Orders in Council which are issued by the Governor General of Canada or the Lieutenant Governor of a province.
For that reason it’s generally harder to find Ministerial Orders than Orders in Council, although this depends greatly on the province. Some provinces, such as British Columbia, make all their Ministerial Orders available in one place. For other jurisdictions you may have to look specifically at the Ministry’s website to find the order (e.g. Transport Canada provides its orders here: https://tc.canada.ca/en/ministerial-orders-interim-orders-directives-directions-response-letters.)
One thing to keep in mind is that, depending on the jurisdiction, the same number may be used for multiple Ministerial Orders. Drew Yewchuk gives an example in a blog post: “there is an M.O. 20/2020 from the Minister of Environment and Parks and an M.O. 20/2020 from the Minister of Justice.”
(And just to confuse the matter further, both Ministerial Orders and Orders in Council may also be regulations which involves another numbering system.)
All the Better to See With: Avoiding Wolves Dressed Up Like Clients
There’s a knot in your belly. Earlier today you received an email from your client asking you to wire the proceeds of a large real estate transaction to an updated account number. You complied, of course. It’s their money after all.
At least, you thought it was your client. It looked like an email from your client. It read like an email from your client. And they knew all the details of the transaction. But now your client is saying they never sent such an email and never received the funds you transferred.
You’re the victim of wire fraud, you’ve lost trust funds belonging to your client, and your basic malpractice insurance may not cover what could be a massive amount of liability.
In these scenarios, fraudsters can discover the details of a specific matter involving a large sum being held in a trust account. These details may be gleaned from gaining access to a lawyer or staff member’s email account and reviewing all communications related to a legal matter, or the details could be acquired from another party. But somehow, the fraudster learns enough to convincingly disguise themselves as a known party entitled to funds held in the trust by the lawyer. The fraudster then sends the lawyer a phony email giving “instructions” for funds to be transferred to an account controlled by them. And with one click, hundreds of thousands, or even millions of dollars can be lost.
Thankfully, there are things you can do to help avoid experiencing these nightmare scenarios.
1) Call before you click.
If you receive instructions by email from a client, other lawyer, or third party that involves transfer of funds, always pick up the phone and call the individual to verbally confirm those instructions.
2) Train your lawyers and staff
Make sure all the lawyers and support staff in your firm are aware of the likelihood of spear-phishing attacks and phony wire transfer instructions, as well as the need to verbally confirm any changes to wire-transfer instructions received by email.
3) Warn your clients
Alert your clients of the dangers associated with wire fraud and advise them to verbally confirm with your firm any bank account details received by email.
Shawn Erker (@ShawnErker) is Legal Writer & Content Manager at LAWPRO.
Change Your Role
For so many busy lawyers it’s almost too easy to go in and do your time day after day, year after year. But at some point you may find yourself wondering if this is really what you still want to be doing.
- If the answer is yes, great, just keep moving forward.
- If the answer is no, listen and change your role.
A simple but illuminating exercise to get the ball rolling in the right direction is to write your future biography. Not based on where things are headed today. But based on where your interests lie. A different area of practice, a different emphasis in your role (practice management, rainmaker, leadership) or other significant shift… Try writing it for a year from now. Three years from now. Five years from now.
Then take a step back and find the gaps.
What do you need to do differently today to set the stage for this change in your role? Can you identify opportunities, events, clients, peers, mentors, coaches or other possibilities that can help you with the transition?
Other lawyers have done it. You can too.
Sandra Bekhor is a practice development coach & consultant in Toronto.
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For more reading related to business coaching for lawyers, see these past articles on SlawTips:
- Can Lawyers Benefit From Business Coaching?
- Creating the Team: A Leadership Moment
- Does Your Law Firm Need More Leadership?
Some Thoughts on Punctuation
If you find you use a lot of semi-colons, there’s a good chance your sentences are too long. Break things into smaller units, especially for readers using a small screen.
Semi-colons can be useful in lists where the enumerated items are clauses with internal commas, so you know what goes with what. Parentheses could help, but a thicket of round brackets (or any kind of brackets, really) is hard on the eye (as my friend and colleague Angela Swan points out).
In those situations, it might be easier for your reader to put the items in a bulleted or numbered list. In my view, you can dispense with the semi-colon at the end of each line.
Do not place a semi-colon in the salutation of a letter: Dear Ms Ali; is just weird. A colon or comma would do. Or you can dispense with punctuation altogether; the white space after the salutation provides an adequate break.
Note the use of a semi-colon in the previous sentence, where it effectively joins a thought that explains a previous one. A comma after altogether would be wrong, as you’d end up with a non-grammatical comma splice or run-on sentence.
A dash could also be used in that sentence – and would add a bit more emphasis.
But go easy on dashes. Too many and they lose their punch.
Figuring Out Geographic Areas in the Canadian Census
The Canadian census is carried out every five years (you may remember filling it out earlier this year) and, in addition to basic demographic information, covers such areas as housing and employment.
If you’re trying to find census information on a more granular level than simply for the country as a whole, the first thing that you need to determine is what geographic area you are interested in. Do you want to pull statistics for the country as a whole or on a more granular basis?
Statistics Canada divides the country up in a number of different ways including:
- Provinces or territories (e.g. Alberta). Each province is assigned a two digit code that can be found here.
- Census divisions (CD) are “intermediate geographic areas between the province/territory level and the municipality” (e.g. Greater Vancouver).
- Census metropolitan areas (CMA) are “one or more adjacent municipalities [with] a total population of at least 100,000” (e.g. Toronto, Montréal and Vancouver).
- Census subdivisions (SCD) are municipalities or areas treated as municipal equivalents (e.g. Vancouver, CY). There are 54 different types.
- Dissemination areas (DA) are geographic units “with an average population of 400 to 700 persons” and are “the smallest standard geographic area for which all census data are disseminated.” Each dissemination area has a four-digit code which is preceded by the two-digit province/territory code and the two-digit census division code to produce a unique identifier (e.g. 12 09 0103).
- Economic regions (ER) are groupings of “complete census divisions […] created as a standard geographic unit for analysis of regional economic activity.” (e.g. Lower Mainland–Southwest).
- Federal electoral districts (FED) are areas represented by a member of the House of Commons (e.g. Vancouver Quadra).
- Health Regions are “are legislated administrative areas defined by provincial ministries of health” with a four digit numeric code being used as a unique identifier, e.g. 5932 for the Vancouver Health Service Delivery Area.
The Census allows you to search by place name, postal code or geographic code. For example a search for “York” would return these results which in turn link to census information for each location.
You can also use Geosearch to narrow down your geographical area, e.g. to drill down to the map forDissemination Area 59153845, but keep in mind that data is not always available for the smaller geographic divisions.
