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advice you can use — short and to the point — every Tuesday, Wednesday & Thursday

technology  practice  research

All Our Tips

Take a Pass on the Passive

Does the subject of your sentence do something (She said that), or is something done to the subject (That was said by her)? The first is an active construction, the second a passive one.

The active voice is much more effective. It tends to be shorter and simpler, more natural and direct, more engaging.

Lawyers, who are often accused of being verbose and overly complicated, unnatural, indirect and anything but engaging, favour passive constructions.

Which is more forceful? I love you (active) or You are loved by me (passive)? We recommend the chocolate mousse (active) or The chocolate mousse is recommended by us (passive)? No points for getting the right answer: it’s too obvious.

With good reason, Theodore Blumberg Seven Deadly Sins of Legal Writing (2008) calls passive constructions the first deadly sin of legal writing.

There are some occasions when the passive is the better choice, but not many:

• the responsible party is irrelevant or unknown (The summons was served)
• result > responsible party (Mission accomplished)
• you want to deflect blame (Mistakes were made, as opposed to Our client made mistakes)
• for emphasis (He was shot) – although it’s easy to deaden rather than heighten effect with the passive
• to improve flow between two sentences (Bupinder is a model associate. He is consistently praised by partners.)
• to vary sentence structure? trust me (note the active voice there), the passive rarely works
• sounds better? doubtful; see examples above
• to create ambiguity and uninteresting prose? for sure

Next tip: that and which

–Neil Guthrie (@guthrieneil)

 

Read the Regulatory Impact Analysis Statement

Since 1986 almost all federal Canadian regulations have included a Regulatory Impact Analysis Statement (RIAS) following the text of the regulation.

Why should you read the RIAS? Unlike acts, you will not find a discussion of new regulations in Hansard. The RIAS tells you what the rationale was for a given regulation and what it was expected to achieve. A RIAS is usually divided into five sections: issue and objectives; description and rationale; consultation; implementation, enforcement, and service standards; and contact information.

Another benefit of Regulatory Impact Analysis Statements is that they are written for a range of readers. The target readers for the RIAS are “parliamentarians, ministers, TBS officials, members of the legal community, affected parties, and interested members of the public”. As a result, the instructions for writing a RIAS emphasize the use of clear language, stating that it should “be understandable to anyone who may wish to read it.”

–Susannah Tredwell (@hannasus)

 

Keep a “Happy Client Folder”

I’m sorry if this sounds like a cheesy idea, but it’s a good one nonetheless.

There will be inevitable slings and arrows in the life of any professional. Hopefully, the good days will outnumber the bad.

Some days,  you may need a positive reminder, though

Thankfully, there will always be clients who are good enough to let you know that they feel you’ve done a good job, that they are happy with the results you’ve achieved, and that they truly appreciate your hard work and good service.

For the last little while, I’ve been copying all those thank you emails to what I call my “Happy Client Folder” on my iPhone.

It’s nice to know that in one, easily available repository, there is a collection of kind words, gratitude, and acknowledgement of a job well done.

So that brings me to today’s tip: Maintain your own Happy Client Folder. It will always be there at your fingertips as reminder that your work is appreciated and your successes have not gone unnoticed

One day, you may be glad it’s there.

Wishing all of our readers much joy and happiness in the festive season.

Garry J. Wise, Toronto

 

Apostrophe Catastrophes

In many ways we’d be better off without the apostrophe, judging by the frequency with which it’s incorrectly used, its functions misunderstood.

Here’s a handy guide.

Possessive

• singular possessor: John’s book
• singular possessor ending in S: James’s is preferable to James’, but both are OK; and the possessive form of many biblical and classical names traditionally leaves out the additional S (Jesus’, Claudius’)
• plural possessors: the Singhs’ house is next to the Joneses’ house [not the Jones’ house – or, heaven forfend, the Jone’s – but the Jones house (non-possessive) would be fine (see ‘Is it plural or possessive?’, below)]
• no apostrophe: possessive pronouns (his, hers, ours, yours, theirs, whose and the sometimes troublesome its, not to mention mine)

Contraction

• it’s (it is); also what’s up, let’s (let us), who’s who, don’t, you’re (that is, you are; never to be confused with the possessive your) etc.
• note, however, that some contractions take a period (‘Mr.’, ‘St.’ for ‘Saint’) – although they could usefully lose that, as they have in the UK

Plural

• don’t go here! but people do; I saw this apostrophe catastrophe in a publication from one of the Seven Sisters: the legislature’s intention to provide substantial protections to franchisee’s [it’s the second apostrophe that’s wrong, I hasten to add]
• this is the dreaded ‘greengrocer’s apostrophe’ (tomato’s, bean’s …)
• traditional to pluralise some things with an apostrophe (dot your i’s and cross your t’s)
• better to use capitals and drop the apostrophe (cross your Ts)
• this may help you avoid the temptation to use an apostrophe when you absolutely must not (see franchisee’s above)

Is it plural or possessive?

• some things could go either way: British Bankers’ Association (possessive) and Canadian Bankers Association (plural, adjectival noun) are both correct; similarly, shareholders’ agreement/shareholders agreement
• some things probably could not: Keep out, police dog’s working

Law firm names

• apostrophes have been creeping in (e.g. Gilbert’s LLP, which to me has the somewhat unfortunate ring of ‘Gilbert’s very own little LLP’)
• confusion with the plural at work here?
• but be careful with that too: Torys is correct (two Torys founded it), Stikemans is not (only one Stikeman)

Up next: take a pass on the passive.

–Neil Guthrie (@guthrieneil)

 

Some Good Advice

♫ Get a leg up
What’s the matter
Are you shy, shy, shy? ♫

Lyrics, music and recorded by: John Mellencamp.

In an article entitled: 5 Rules for When to Listen to Advice (And When Not To) in Inc. Magazine,  Matthew Swyers, the Founder of The Trademark Company

 stated (here I am just going to summarize) the rules as to determine if advice is worth anything:

1. Context: Determine the weight to be given to advice from the context in which it is given.
2. Unsolicited Advice: Determine why someone is giving you advice.
3. Motivation: What is the person seeking who is giving you advice?  Matthew says, “What is their end game?”
4. Knowledge: How reliable is the advice that you have been given?
5. Experience: What experience does this person have relative to the advice that they are giving?

All this is to put the following advice in context.  Peter Legge, O.B.C, CSP, CPAE, HoF, LLD (Hon)

is an author, a very successful businessman, a community leader and an incredible presenter. I went to one of his presentations years ago and just rediscovered his handout: a publication entitled “97 Tips: Doing Business in Tough Times, Proven Strategies that Work“.  Since the U.S. Federal Reserve raised interest rates slightly on Wednesday, which I understand is bad news for the Canadian dollar and economy, I thought it was appropriate to post some of his 97 tips here that deal with leadership and personal conviction.  Full disclosure: I went up to Peter after his presentation and asked if I could republish, with attribution, some of his tips and he agreed. I assume that this approval and consent has not expired with the passage of time.  After all, Peter’s advice is timeless:

• Be positive. You become what you think about. If you refuse to accept failure and if you think like a winner, you will be one.
• Be decisive. Take action. Nothing kills a good idea or an opportunity faster than procrastination. Survey the options, make the call, move on it, and never 2nd-guess yourself. There’s nothing to be gained from regret.
• Achieve. Do not try hard, do not make excuses. Do what needs to be done. “Sometimes you have to do your best, but sometimes you have to do what is required,” said Winston Churchill. This is the time to execute with conviction.
• Know what’s important. No matter what kind of challenge you find yourself up against, always face it with absolute clarity. Be specific about what you want to accomplish and be sure you are perfectly clear on what’s most important.
• Don’t be afraid. Remember, everyone around you has fears, phobias and doubts. Rise above your worries. Think about the example set by New York Mayor Rudolph Giuliani on September 11. The people around you are losing their cool, show them that you are not afraid. Face your fear and do it anyway.
• Stay true. These may be tough times indeed, but when it comes down to it, nothing has really changed. It still all about doing business the best that you can. So, stay focused on your organization’s mission, stick to your core values and don’t waver from your goals. Stick to your knitting.
• Be unforgettable. When clients are looking for a product or service, make sure they think of you first. Be appreciative, considerate, courageous, positive-thinking and excited.
• Small can be beautiful. Don’t let yourself get too big for your britches. Successful small business is infinitely preferable to a big business that has been marginalized by undisciplined growth. Grow when you’re ready.
• Handwrite thank-you cards. Write 5 thank you notes daily. Don’t think people via email. Handwritten notes have become a rarity. Send personal greetings for important occasions as well as lesser ones.
• Take time to think. Slow down. Don’t be rushed or pushed into making the wrong decision. Look out the window and take 30 minutes a day to think about your challenges. Your decisions will be much better in the long-run.
• Be thoughtful and courteous. Courtesy is a hallmark of a distinctive approach to business. People are drawn to doing business with the people they like and who treat them well.
• Be kind. People will forget what you said. The will forget what you did. But they will never forget how you made them feel. Learn how to listen. Be sensitive to the needs and expectations of people.
• Make yourself heard. Marketing costs are often the 1st expenditure to be cut when money gets tight. But this is the time when you actually need to increase your marketing efforts, not cut them. After all, if your competitors stop advertising while you continue to trumpet your own business, guess who’s message customers will notice?

Thank you Peter in helping all of us keep a clear head, set our compass and take your advice on how to get a leg up and not be shy!

(p.s. If you want to get the rest of Peter’s tips, you should be able to order them from Peter Legge Management Co. Ltd at 604 299 9188.)

-David J. Bilinsky, Vancouver, BC.

 

Find Out About New Regulations Before They’re Published in the Gazette

Many lawyers and legal researchers keep a mental note to look out for new regulations under specific Acts or new proclamations bringing into force an Act of interest. As Shaunna Mireau pointed out in this October 2011 tip though, if you’re only keeping an eye on new issues of the relevant Gazettes, you’ll be days or even weeks behind those who are also keeping an eye on orders in council. Remember, most regulations, proclamations, and orders begin life as orders in council. Then, if required, the OIC is later published in either part of the Gazette. So, stay on top of new regulations by looking at orders in council first.

I’ve compiled a handy reference list below for the jurisdictions I work in most often. Chime in the comments if you have a tip to share about your own early warning system for your province’s regulations or proclamations.

• Federal: Federal orders in council are posted to the Privy Council Orders in Council database as they are signed throughout the week. Do a date-limited blank search for the past two weeks in this database so see the latest OIC’s.
• British Columbia: New regulations are listed in the BC Regulations Bulletin every Thursday and orders in council are posted to the BC Laws website as they are signed throughout the prior week.
• Alberta: Orders in council are posted to the Alberta orders in council webpage on the day or the day after they’re signed throughout the month.
• Ontario: Regulations are posted to e-Laws, here, as they are filed, and extracts from proclamations are listed in the e-Laws Proclamations table as each OIC is signed. (My thanks to the very helpful Susan Merdzan, Manager of e-Laws with the Ontario Attorney General, for confirming this order of operations.)
• Northwest Territories: Registered regulations and orders are not made available in advance. (Thank you to Bev Speight of the NWT Department of Justice Library and her colleagues at the Legislation Division at GNWT for confirming this for me.)
• Nunavut: OIC’s are not made available separately in advance, however often the Government will put out a press release with a heads up if a regulation or proclamation is going to have effect before the next issue of the Gazette is published. (My thanks to Jenny Thornhill, Manager of Court Library Services for the Nunavut Court of Justice for the tip about press releases.)

— Bronwyn Guiton (@BronwynMaye)

 

Avoid the Adverb

The novelist Graham Greene – a master of lean, mean prose – called adverbs ‘beastly’. (In spite of the -ly ending, that’s an adjective.)

Think of the adverb ‘quite’, which is either ambiguous or weak: ‘quite good’ can mean ‘better than expected’, ‘something a bit less than good’, ‘actually good’, ‘very good’. In any case, it lacks oomph.

Or indeed ‘very’, which the nineteenth-century newspaper editor William Allen White called ‘the weakest word in the English language’. Very true.

In legal writing, adverbs are often used as qualifiers or fillers. I’m thinking of words like ‘generally’, ‘clearly’, ‘unfortunately’.

In opinions, ‘generally’ may have a valid place as a signal of potential uncertainty in the law (although even there it can be overused, when it’s a substitute for actual analysis). In an article or blog, try to eliminate ‘generally’. You’re not writing an opinion (and there will be a boilerplate disclaimer saying that your piece is not to be taken as legal advice anyway), so all it does is soften your impact.

If you have to say ‘clearly’, odds are the point isn’t clear at all. The word is just filler – or an attempt to make the best of a bad job.

Even worse is ‘unfortunately’, which I see a lot in student memos (‘Unfortunately, there appears to be no case law on point …’). It’s not unfortunate, it just is.

And please don’t misuse ‘literally’ as mild form of emphasis. It means ‘as opposed to figuratively’. It would be correct to say ‘I literally have to run’ if the starting gun for your 10-km race is about to go off; incorrect if all you mean is ‘I must go’.

As linguistics prof Geoffrey Nunberg puts it, ‘Adverbs tend to show people at their worst – posturing, embellishing, apologizing, or just being mealy-mouthed.’

Next tip: apostrophe catastrophes.

–Neil Guthrie (@guthrieneil)

 

How to Deal With Difficult People

♫ The wheels on the bus go round and round,
round and round,
round and round.
The wheels on the bus go round and round,
all through the town…♫

Lyrics and music by: Lydia Ulsaker, sung by teachers, parents and children everywhere.

(image by: LaurMG, used under the Creative Commons Attribution-Share Alike 3.0 Unported license.)

James C. Collins wrote the best seller: “Good to Great: Why Some Companies Make the Leap…and Other’s Don’t.”  It has stood the test of time and sold over 4 million copies according to Wikipedia.

Jim has some very good advice that is contained in his seven characteristics of companies that went from good to great. For this column I am only going to deal with the first:

First Who, Then What: Get the right people on the bus, then figure out where to go. This is all about finding the right people and trying them out in different positions.

Of course to get the right people on the bus, you have to find out who may be the wrong people on the bus that perhaps have to get off.

Well that is all well and good if you are in a management role and have the authority to ask someone to politely get off the bus. What if you are a fellow rider and have to work with someone who should have been asked to get off a long time ago but for one reason or another, is still on the bus.  Now what?

Forbes.com published Kevin Kruse’s article “Dealing with Difficult People”.  The full article can be found here, but I am just going to summarize his excellent advice:

1. Don’t get dragged down. Don’t get sucked into their world of negativity.
2. Listen. Use good listening techniques.  They think no one is listening to them.
3. Use a time for venting. Let the Downer vent for 5 minutes. Then move on.
4. Don’t agree. Appeasing them only adds fuel to the fire.
5. Don’t stay silent. Silence will be interpreted as agreement.
6. Do switch extremes into facts. Switch them to fact-based statements.
7. Move to problem solving. Help them move to a problem-solving mode.
8. Cut them off. Nothing worked? Then politely shut them down.

You want to enjoy the company of those with whom you work while the wheels on the bus go round and round.

-David J. Bilinsky, Vancouver.

 

 

Use CanLII to Compare Two Versions of an Act

Most CanLII users know that CanLII provides point-in-time versions of legislation. However, one feature of CanLII that is less well known is that it allows users to compare two versions of an act.

It is straightforward to compare two versions of an act on CanLII:

1. Find the act you wish to compare the versions of.
2. Underneath the name of the act is a list of point-in-time versions of that act. Select the two versions you want to compare. (They don’t have to be consecutive.)
3. Click on COMPARE.

The older of the two acts will be on the left hand side of the page and the newer will be on the right. Text removed from the act is highlighted in red; text added to the act is indicated in green. Use the arrow keys on the top right of the page to move through the changes.

Note that this does not work for longer British Columbia acts (such as the Motor Vehicle Act) because the Queen’s Printer splits them into multiple parts.

–Susannah Tredwell (@hannasus)

 

Gruesome Twosomes

What do I mean by this? Pairs of words that lawyers routinely use together, but would be better not to.

These pairs may once (in the late Middle Ages?) have had distinct meanings but now really don’t.

And even in the Middle Ages they may not have: many of these ‘coupled synonyms’ (in Richard Wydick‘s phrase) join an English word with its (Old) French equivalent, in a belt-and-suspenders manoeuvre.

Like ‘free and clear’, which combines the synonymous Old English freo and the Old French cler.

Examples:

Null and void [how about ‘of no effect’?]
No force or effect [ditto]
Save and except [one or the other, not both]
Full and complete [same comment]
Unless and until [this drives me crazy]
Separate and apart [except as a term of art in family law]
Cease and desist [plain old ‘stop’ will do just fine]

These formulations are redundant and inelegant, they don’t reflect how normal people (like clients) actually speak, and they make your writing look fussy.

Next: avoid the adverb.

–Neil Guthrie (@guthrieneil)