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David Stratas
Federal Court of Appeal
Legal writing and written advocacy
Opening Comments
Legal writing and written advocacy
● Many practising lawyers don’t understand the concept of
written advocacy
Introduction
It is respectfully submitted that this appeal raises a broader question of law regarding the division of trust assets in an ongoing pension plan in the context of a corporate divestiture. The fundamental issue can be succinctly expressed - to implement a sale transaction involving an ongoing pension plan comprised of trust assets derived from employer and employee contributions, can an employer unilaterally divide the trust assets in a way that discriminates between identically placed groups of plan members, in the absence of express language in the Trust and Plan documents authorizing such differential treatment?
Introduction
The decision of this Court in Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611 ("Schmidt") is the starting point for the analysis of the principles applicable to pension plan surplus. Schmidt established the general principle that one must first look to the applicable plan documents to determine the rights, duties and obligations in relation to pension plan assets. In this regard, it is critical to determine whether a true trust has been established, and, if so, the assets to which the trust applies. Schmidt further stands for the general principle that if, upon a proper construction of the HBC Plan documents, a trust has been created, another important principle follows: trust law principles are applicable and
prevail in relation to such assets.
Introduction
This instruction:
● Though we shall speak of rules, no hard and fast rules
● Rather, it’s about understanding – at its very essence – the
concept of written advocacy so you can make proper judgments
Introduction
Introduction
● This powerpoint and lecture: by itself, not good enough
● Practice, practice, practice
Part I – The basics of writing
Legal writing and written advocacy
● How to write: it’s a question of judgment
● How to exercise your judgment?
● Keep front of mind the purposes of legal writing, the golden rule of writing, and certain “rules”
Introduction
The purposesof legal writing
● Efficient information transfer from writer to reader
● Empowerment of the reader to deal with the information
● In some contexts, to get the reader to react – persuasion
The purposesof legal writing
The golden ruleof writing
The golden ruleof legal writing
● Always write for your audience
● It is all about your audience
● It is never about you
The golden ruleof legal writing
Possible audiences:
● depends on your document and the occasion
● factums: the judge
● litigation reports and opinions: client / in-house lawyer
The golden ruleof legal writing
The nature of your audience
● Less knowledgeable about your topic than you will be – you must educate them
● They don’t know you. Are you smart? Can you be believed? – you must instill confidence
The nature of your audience
● Most people have limited time
– you must make it easy
● Most hate working hard to understand something that could be easy and no one likes to wrestle with prose – you must make it easy
The nature of your audience
● The reader has ego, independence and autonomy – you must empower them to use the information
The nature of your audience
So how should you write?
● Efficient information transfer, empowerment of the reader, get the reader to react, educate the reader, instill confidence, and make it easy.
So how should you write?
● Efficient information transfer, empowerment of the reader, get the reader to react, educate the reader, instill confidence, and make it easy.
● BE CLEAR, DIRECT AND BRIEF
What you must doSo how should you write?
● NOT vague, indirect/evasive, and long-winded
● You NEVER want the reader wrestling with your prose and questioning it
● You ALWAYS want the reader to soak it up, easily and with total trust
So how should you write?
The judicial audience
● Were babies who became kids who became high school
students who became undergrads who became law students who became articling students who became junior lawyers who became senior lawyers
The judicial audience
● BE CLEAR, DIRECT AND BRIEF
The judicial audience
● BUT this audience does have some unique features and needs
● Even more important to BE CLEAR, DIRECT AND BRIEF
The judicial audience
● Our existing knowledge: the law
● Our existing knowledge: the facts
The judicial audience
● The adversarial context: lack of trust
● Our motivations: public interest, practical problem solvers
● Our egos: empowerment vs. dictation
The judicial audience
● Busy
● How much do we read?
● When and where do we read
● The state of our brains
The judicial audience
● Lawyers and judges are in two worlds: different knowledge,
motivations, needs and attitudes
● Persuasion: translate the stuff in your world so it can be
understood and appreciated by those in the other world
The judicial audience
● More about persuasion…
● Three levels of persuasion: intellectual persuasion, emotional persuasion, credibility persuasion
● BE CLEAR, DIRECT AND BRIEF
The judicial audience
The judicial audience
“Persuasion works best when it is largely invisible.”
-Stephen V. Armstrong and Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing.
How to do clear, direct and brief
● One main principle
● Three practical rules
How to do clear, direct and brief
One main principle
● Always provide context before detail
One main principle
● Always provide context before detail
● Two ideas:
(1) Say what you are going to do, then do it. Make a promise. Keep it. This is often called “point first writing”
(2) Provide necessary context early, at the right time
● Should be done throughout the document, not just introductions
One main principleOne main principle
● Without point first: a blizzard of detail that the reader cannot handle
● Reader: “Why are you telling me this?”
● Poisonous to persuasion
One main principlePoint first writing
● Always ask yourself, “Does the audience (judge) know where I am going and why?”
● If not, stop, and implement “point first.”
One main principlePoint first writing
● Why does “point first writing” work?
● Readers absorb information best if they understand its significance as soon as they see it, not afterwards.
One main principlePoint first writing
The husband hit his son with a metal rod. He bled profusely. He went to the hospital. The police were there. The doctor sewed up his wound. However, he died from the injury. The coroner conducted an inquiry. He called the husband as a witness. He declined to testify, invoking his right to silence. The husband has no right to silence in the coroner's inquiry in these circumstances.
One main principlePoint first writing
The husband has no right to silence in the coroner's inquiry in the circumstances of this case. The husband hit his son with a metal rod. He bled profusely. He went to the hospital. The police were there. The doctor sewed up his wound. However, he died from the injury. The coroner conducted an inquiry. He called the husband as a witness. He declined to testify, invoking his right to silence.
One main principlePoint first writing
● A similar concept: before assaulting the reader with details, at least
provide some context so the reader can understand the details
● Examples: precedents page, documents 2 and 2a; David Stratas, "The Basics of Factum Writing" heading D at the end
One main principleContext before details
● A model to emulate: the designer of a museum exhibit
One main principleOne main principle
● One main principle
● Three practical rules
How to do clear, direct and brief
● The aim: to achieve clarity, directness and brevity.
● Individual sentences matter most of all.
One main principleThe three rules
● Eliminate wimpy words
● Use one plain, good word if you can
● Concentrate on connections
One main principleThe three rules
One main principleEliminate wimpy words
● The biggest wimpy word of all…the verb “to be”
● Other examples: to make (“make a decision”), to arrive at (“arrived at
a decision”), to have (“have a thought”), to receive (“receive an idea”), to bring (“bring an end to..”),
to get (“get an idea that”)
One main principleEliminate wimpy words
● As often as reasonable, get rid of wimpy verbs – replace them with
stronger verbs● It’s true for nouns too – but we’ll
concentrate on verbs
One main principleEliminate wimpy words
● Concentrating on the verb “to be”
● There’s a whole family of wimps: am, are, is, was, were, be, being, been, becoming, became
One main principleEliminate wimpy words
"It was said by the Supreme Court that the law must be changed."
One main principleEliminate wimpy words
"It was said by the Supreme Court that the law must be changed."
Better version:"The Supreme Court said that Parliament
must change the law."
(using active voice not passive voice)
One main principleEliminate wimpy words
Bad version:
"It was said by the Supreme Court that the law must be changed."
Good version:
"The Supreme Court said that Parliament must change the law."
One main principleEliminate wimpy words
- 13 words - 10 words (-23%)
- 30 page memo - 23 page memo
Bad version:
"It was said by the Supreme Court that the law must be changed."
Good version:
"The Supreme Court said that Parliament must change the law."
One main principleEliminate wimpy words
- Who does the saying (the Supreme Court) is slipped in as an afterthought.
- Indirectness, evasion and doubt
- Who does the saying is said up front.
- Directness, honesty and certainty
Bad version:
"It was said by the Supreme Court that the law must be changed."
Good version:
"The Supreme Court said that Parliament must change the law."
One main principleEliminate wimpy words
- Who must change the law is left entirely hidden.
- Imprecision, evasion
- Who must change the law is disclosed.
- Precision, candour
Bad version:
"It was said by the Supreme Court that the law must be changed."
Good version:
"The Supreme Court said that Parliament must change the law."
One main principleEliminate wimpy words
“You will be made to be moved by this baseball bat."
One main principleEliminate wimpy words
“You will be made to be moved by this baseball bat."
“This baseball bat will make you move!"
One main principleEliminate wimpy words
● Exceptions: when passive voice might be better than active voice.
One main principleEliminate wimpy words
“Smith’s contention is that those shares are worth $50 million”
(nominalizations)
One main principleEliminate wimpy words
“Smith’s contention is that those shares are worth $50 million”
One main principleEliminate wimpy words
“Smith contends that those shares are worth $50 million”
One main principleEliminate wimpy words
“Smith values the sharesat $50 million”
One main principleEliminate wimpy words
“Smith values the shares
at $50 million”
“Smith’s contention is that those shares are
worth $50 million”
One main principleEliminate wimpy words
“Smith values the shares
at $50 million”
“Smith’s contention is that those shares are
worth $50 million”
- 10 words - 7 words (-30%)
- evasive, indirect - crisp, direct
One main principleEliminate wimpy words
Exercise:
● There was an intention by John Smith to be in violation of the contract.
● There is support for Mary Brown’s testimony in the testimony of John Smith.
● He underwent a tooth extraction.
One main principleEliminate wimpy words
Exercise:
● It was not until I opened my email that I got the news.
● She arrived at the decision to bring an end to the contract.
● This is a case about the law of contract.
One main principleEliminate wimpy words
Exercise:
● It was the growth of consumer power that led to new legislative reforms.
● The purpose of this document is to explain how to construct a box.
One main principleEliminate wimpy words
Exercise:
● We are in agreement with your position, but if it is your intention to cause delay, we will stand in opposition to you.
One main principleEliminate wimpy words
Other wimps:
● “To get” – take, acquire, pluck, grab, steal, pilfer, rob
● “To have” – hold, clutch, embrace
(or in either case, reconstruct the sentence to get rid of it)
● “To indicate” – say, shout, declare, etc.
One main principleEliminate wimpy words
● Section 1038 has pertinence to any contract that makes provision for attorney fees.
One main principleEliminate wimpy words
● Section 1038 has pertinence to any contract that makes provision for attorney fees.
One main principleEliminate wimpy words
● Section 1038 has pertinence to any contract that makes provision for attorney fees.
● Section 1038 pertains to any contract regulating attorney fees
● Section 1038 applies to lawyers’ fee agreements.
One main principleEliminate wimpy words
● Eliminate wimpy words
● Use one plain, good word if you can
● Concentrate on connections
One main principleThe three rules
One main principleUse one plain, good word if you can
● We are more likely to absorb things
that are easy to understand.● We are more likely to accept things
that are easy to understand.
[ (456-63) – 5 ] + [ 1/8 x (240) ] = 2 40 (2 x 3)(2 + 3)
1 + 1 = 2
One main principleUse one plain, good word if you can
A tip:
Write the way you would speak to a neighbour or a family
member
One main principleUse one plain, good word if you can
“He underwent three breath tests by means of a breath
testing device”
One main principleUse one plain, good word if you can
“He underwent three breath tests by means of a breath
testing device”
“He took three breath tests”
One main principleUse one plain, good word if you can
“He underwent three breath tests by
means of a breath testing device”
“He took three breath tests”
One main principleUse one plain, good word if you can
“He underwent three breath tests by
means of a breath testing device”
“He took three breath tests”
- 12 words - 5 words (-58%)
- evasive, indirect, - crisp, direct,
jarring invisible
One main principleUse one plain, good word if you can
“In criminal cases, I’m tired of reading that ‘the accused exited the vehicle.’ Just once I’d like to read that he ‘got out of the car.’ ”
-- Hon. Justice Thomas Cromwell
(as he then was, in or around this very room, on or about November, of the year 2007, in the city of Toronto, in the province of Ontario.)
One main principleUse one plain, good word if you can
● The questioning commenced at 5:30 p.m.
● The officer attended at the house as soon as his office was contacted.
One main principleUse one plain, good word if you can
● The lawyer indicated that his client would not attend.
● Counsel advised the accused that the hearing was scheduled for 5:00 p.m.
One main principleUse one plain, good word if you can
Throat clearing phrases:
“It is important to note that the plaintiff
lived in Toronto”
One main principleUse one plain, good word if you can
Throat clearing phrases:
“It is important to note that the plaintiff
lived in Toronto”
Instead:
“The plaintiff lived in Toronto”
One main principleUse one plain, good word if you can
Redundant pairs:
“If and when we can define and establish our final aims and goals, each and
every member of our group will be able to
help.”
One main principleUse one plain, good word if you can
Redundant pairs:
“If and when we can define and establish our final aims and goals, each and
every member of our group will be able to
help.”
Instead:
“If we define our goals, every
member of our group will be able
to help”
One main principleUse one plain, good word if you can
Redundant modifiers:
In this world of today, official gov’t
red tape is seriously destroying initiative
among individual business
executives.”
One main principleUse one plain, good word if you can
Redundant modifiers:
In this world of today, official gov’t
red tape is seriously destroying initiative
among individual business
executives.”
Instead:
“Today, gov’t red tape is destroying initiative among
business executives.”
One main principleUse one plain, good word if you can
Meaningless modifiers:
“Most students generally find some
kind of summer work.”
One main principleUse one plain, good word if you can
Meaningless modifiers:
“Most students generally find some
kind of summer work.”
Instead:
“Most students find summer
work.”
One main principleUse one plain, good word if you can
Excessive discourse:
“It is almost certainly the case that, for the most
part, totalitarian systems cannot allow a society to settle into what we would
perceive to be stable modes of behaviour or,
even more crucially perhaps, stable relationships.”
One main principleUse one plain, good word if you can
Excessive discourse:
“It is almost certainly the case that, for the most
part, totalitarian systems cannot allow a society to settle into what we would
perceive to be stable modes of behaviour or,
even more crucially perhaps, stable relationships.”
Instead:
“Totalitarian systems cannot
allow a society to settle into stable
behaviour or stable relationships.”
One main principleUse one plain, good word if you can
Double negatives:
“There is no reason not to believe that
engineering malfunctions in nuclear energy systems cannot
always be anticipated.”
One main principleUse one plain, good word if you can
Double negatives:
“There is no reason not to believe that
engineering malfunctions in nuclear energy systems cannot
always be anticipated.”
Instead:
“We can assume that malfunctions in nuclear energy
systems will surprise us.”
One main principleUse one plain, good word if you can
A phrase for a word:
“A small sail-powered craft that has turned on its side or completely over must
remain buoyant enough so that it will bear the weight of those individuals who
were aboard.”
One main principleUse one plain, good word if you can
A phrase for a word:
“A small sail-powered craft that has turned on its side or completely over must
remain buoyant enough so that it will bear the weight of those individuals who
were aboard.”
Instead:
“A small sailboat that capsizes must float well
enough to support its crew.”
One main principleUse one plain, good word if you can
Obvious implications:
“Energy used to power our industries and
homes will in the years to come be
increasingly expensive in terms of dollars and
cents.”
One main principleUse one plain, good word if you can
Obvious implications:
“Energy used to power our industries and
homes will in the years to come be
increasingly expensive in terms of dollars and
cents.”
Instead:
“Energy will cost more.”
One main principleUse one plain, good word if you can
● Other unnecessary phrases: - In the normal course of events = normally- On an annual basis = annually- As of this date in time = now- A large number of = many- In addition to the above = as well- In the event that = if- With respect to, in regards to = regarding, concerning, about- Due to the fact that = because- As per your request = as you requested
One main principleUse one plain, good word if you can
Others:
● Adjacent to – next to
● In excess of – more than
● Prior to – before
● Pursuant to – under
One main principleUse one plain, good word if you can
Still others:
● It is respectfully submitted
● In my view
● In my opinion
When might you use these?
One main principleUse one plain, good word if you can
The problem of “prepositional bloating”:
● After we engage in the preparation of a report, our recommendations will be
presented in their final form before the Executive Committee.
One main principleUse one plain, good word if you can
The problem of “prepositional bloating”:
● After we engage in the preparation of a report, our recommendations will be
presented in their final form before the Executive Committee.
One main principleUse one plain, good word if you can
The problem of “prepositional bloating”:
● After we engage in the preparation of a report, our recommendations will be
presented in their final form before the Executive Committee.
● After we have prepared the report, we will present our final recommendations to the Executive Committee.
One main principleUse one plain, good word if you can
The problem of “prepositional bloating”:
● In the course of the investigation of the crime by the officer from the OPP, a
group of tenants of the apartment building gathered in the lobby on the ground floor.
One main principleUse one plain, good word if you can
The problem of “prepositional bloating”:
● In the course of the investigation of the crime by the officer from the OPP, a
group of tenants of the apartment building gathered in the lobby on the ground floor.
● During the OPP officer’s investigation, a group of tenants gathered in the ground floor lobby.
One main principleUse one plain, good word if you can
The problem of over-elaborating the action:
● The director decided to put her in charge
One main principleUse one plain, good word if you can
The problem of over-elaborating the action:
● The director decided to put her in charge
● The director put her in charge
One main principleUse one plain, good word if you can
The problem of self-commentary:
● “Having considered the matter carefully, I conclude…” “While I am not submitting that…”
One main principleUse one plain, good word if you can
● Edit out attempts to “try again” with a thought – e.g., watch out for
second sentences that begin “In other words…” or “To be more specific…” or “In particular…”
● Try to capture the idea in the first sentence if you can.
One main principleUse one plain, good word if you can
● Concentrate on the nouns and verbs, delete the adjectives and adverbs.
● Adjectives and adverbs are clumsy, bulky and “in your face”: “He intentionally and sneakily took the bag” vs. “He pilfered the bag.”
● Avoid the following: very, quite, certainly, obviously, surprisingly, definitely, surely, really, quite, absolutely, clearly
One main principleUse one plain, good word if you can
Concentrate on the verbs and nouns, delete the adjectives and adverbs.
● “She was very, very angry”
One main principleUse one plain, good word if you can
Concentrate on the verbs, delete the adjectives and adverbs.
● “She was very, very angry”
● “She was enraged”
(Wydick, Plain English for Lawyers, 4th ed.)
One main principleUse one plain, good word if you can
Concentrate on the verbs, delete the adjectives and adverbs.
● “This is quite puzzling.”
One main principleUse one plain, good word if you can
Concentrate on the verbs, delete the adjectives and adverbs.
● “This is quite puzzling.”
● “This is baffling.”
One main principleUse one plain, good word if you can
Concentrate on the verbs, delete the adjectives and adverbs.
● “The witness intentionally testified untruthfully about the cargo”
Use one word if you canOne main principleUse one plain, good word if you can
Concentrate on the verbs, delete the adjectives and adverbs.
● “The witness intentionally testified untruthfully about the cargo”
● “The witness lied about the cargo.”
Use one word if you canOne main principleUse one plain, good word if you can
Concentrate on the verbs, delete the adjectives and adverbs.
● “Defendant’s sales agents maliciously
took advantage of people with little money and limited intelligence.”
Use one word if you canOne main principleUse one plain, good word if you can
Concentrate on the verbs, delete the adjectives and adverbs.
● “Defendant’s sales agents maliciously took advantage of people with little
money and limited intelligence.”
● “Defendant’s sales agents preyed on the poor and the ignorant.”
Use one word if you canOne main principleUse one plain, good word if you can
Snarky adverbial beginnings.
● Interestingly, the respondent fails to cite any of the jurisprudence under the Act.
● The respondent fails to cite any of the jurisprudence under the Act.
Use one word if you canOne main principleUse one plain, good word if you can
Exercise:
By virtue of servicing the bank account, the bank was required to monitor activity in the account held by Smith. It was this that led the bank to uncover a number of clues that indicated that its customer was engaging in fraud.
Use one word if you canOne main principleBoth rules together
Exercise:
By virtue of servicing the bank account, the bank was required to monitor activity in the account held by Smith. It was this that led the bank to uncover a number of clues that indicated that its customer was engaging in fraud.
● The bank discovered Smith’s fraud while monitoring his account, a task it must do.
Use one word if you canOne main principleBoth rules together
Exercise:
With respect to Canadian jurisprudence, the professor is of the view that the judgments from the Federal Court of Appeal greatly exceed in quality the judgments rendered by the Supreme Court of Canada.
Use one word if you canOne main principleBoth rules together
Exercise:
With respect to Canadian jurisprudence, the professor is of the view that the judgments from the Federal Court of Appeal greatly exceed in quality the judgments rendered by the Supreme Court of Canada.
● Examining the cases, the professor says the Federal Court of Appeal beats the Supreme Court of Canada every time.
Use one word if you canOne main principleBoth rules together
Exercise:
It is important to note that the Supreme Court of Canada is comprised of nine judges because each judge has a need for eight others to detect all of his or her mistakes.
Use one word if you canOne main principleBoth rules together
Exercise:
It is important to note that the Supreme Court of Canada is comprised of nine judges because each judge has a need for eight others to detect all of his or her mistakes.
● The Supreme Court of Canada has nine judges because each judge needs eight others to find all the mistakes.
Use one word if you canOne main principleBoth rules together
Exercise: ● It is important to note that the Supreme Court of Canada is comprised of nine judges because each judge has a need for eight others to detect all of his or her mistakes.
● The Supreme Court of Canada has nine judges because each judge needs eight others to find all the mistakes.
● Each Supreme Court judge needs eight others to find all the mistakes. That’s why there’s nine of them!
Use one word if you canOne main principleBoth rules together
Exercises
Although Smith Hall is regularly populated by students, close study of the building as an architectural work is seldom undertaken by them.
Reminder: one word if you can [neighbour; delete adverbs/adjectives, let the strong verbs play]; avoid indirect expressions; war on “to be”
Exercises
Although Smith Hall is regularly populated by students, close study of the building as an architectural work is seldom undertaken by them.
The students living in Smith Hall ignore its architecture.
Exercises
It was decided by them to submit their resignations as students on account of the fact that it was necessary for them to help support their family.
Reminder: one word if you can [neighbour; delete adverbs/adjectives, let the strong verbs play]; avoid indirect expressions; war on “to be”
Exercises
It was decided by them to submit their resignations as students on account of the fact that it was necessary for them to help support their family.
They decided to drop out of school to support their family.They left school to support their family.
Exercises
It is our opinion that Mary Brown, always being full of effort and with her mind always on the job when she is playing ice hockey, would be a very, very good lawyer in court if she shows those same qualities there.
Reminder: one word if you can [neighbour; delete adverbs/adjectives, let the strong verbs play]; avoid indirect expressions; war on “to be”
Exercises
It is our opinion that Mary Brown, always being full of effort and with her mind always on the job when she is playing ice hockey, would be a very, very good lawyer in court if she shows those same qualities there.
If Mary Brown, a hockey player with focus and tenacity, brought those qualities to the courtroom, she would be the class of the Bar.
Exercises
There are many ways in which Jonathan Bernier, who is interested in winning, is able to have the puck stopped from going in the net.
Reminder: one word if you can [neighbour; delete adverbs/adjectives, let the strong verbs play]; avoid indirect expressions; war on “to be”
Exercises
There are many ways in which Jonathan Bernier, who is interested in winning, is able to have the puck stopped from going in the net.
Keen to win, Jonathan Bernier finds many ways to stop the puck.
Exercises
It is critical to note that, with respect to what we will see tonight, trouble is caused when Nazem Kadri is allowed by the not very good Montreal defence to take a dominant position in or about the area in the front of the net.
Reminder: one word if you can [neighbour; delete adverbs/adjectives, let the strong verbs play]; avoid indirect expressions; war on “to be”
Exercises
It is critical to note that, with respect to what we will see tonight, trouble is caused when Nazem Kadri is allowed by the not very good Montreal defence to take a dominant position in or about the area in the front of the net.
Tonight, we will see the trouble Nazem Kadri causes when he is left all alone to dominate in front of Montreal’s net.
Tonight, we will see the trouble Nazem Kadri causes in front of Montreal’s net, left all alone there, to dominate.
Exercises
● Eliminate wimpy words (especially verbs [action words])
● Use one plain word if you can
● Concentrate on connections
One main principleThe three rules
Concentrate on connections
Concentrate on connections
● For “sentence + sentence,” you want “clarity + clarity.”
● To make “clarity + clarity,” sentences must be internally clear and the “+” element must be clear.
● Connections must be made within sentences and between sentences.
Concentrate on connections
Build sentences with easily-discerned meaning. Then connect them. But how?
Concentrate on connections
Build sentences with easily-discerned meaning. Then connect them.● Keep subjects and verbs right together.
This creates a “strong sentence core.”● Divide information into bite-sized, connected chunks and then arrange the chunks logically. Don’t challenge your audience.● Glue sentences together. The 4x100 relay.
● Keep subjects and verbs right together. This creates a “strong sentence core.”
Concentrate on connections
● Keeping subjects and verbs together:
The plaintiff, John Smith, having sought since July 2010 to recover losses from Acme incurred in January of that year, sued Acme Co. for damages for breach of contract and also sued both Acme’s salesperson, Mary Brown, and Mary’s employer, Acme, for damages for negligent misrepresentation.
Concentrate on connections
● Keeping subjects and verbs together:
The plaintiff, John Smith, having sought since July 2010 to recover losses from Acme incurred in January of that year, sued Acme Co. for damages for breach of contract and also sued both Acme’s salesperson, Mary Brown, and Mary’s employer, Acme, for damages for negligent misrepresentation.
Concentrate on connections
● Keeping subjects and verbs together:
The plaintiff, John Smith, having sought since July 2010 to recover losses from Acme incurred in January of that year, sued Acme Co. for damages for breach of contract and also sued both Acme’s salesperson, Mary Brown, and Mary’s employer, Acme, for damages for negligent misrepresentation.
Concentrate on connections
● Keeping subjects and verbs together:
Having sought since July 2010 to recover losses from Acme incurred in January of that year, the plaintiff, John Smith, sued Acme Co. for damages for breach of contract and also sued both Acme’s salesperson, Mary Brown, and Mary’s employer, Acme, for damages for negligent misrepresentation.
Concentrate on connections
Concentrate on connections
Build sentences with easily-discerned meaning. Then connect them.● Keep subjects and verbs right together.
This creates a “strong sentence core.”● Divide information into bite-sized, connected chunks and then arrange the chunks logically. Don’t challenge your audience.● Glue sentences together. The 4x100 relay.
Concentrate on connections
● Divide information into bite-sized, connected chunks and then arrange the chunks logically. Don’t challenge your audience.● This is a HUGE issue for legal writers. All
too frequently, legal sentences are far too ambitious.
● The solution is to chunk, then arrange the chunks.
● The sole eyewitness, having seen the accident from the window of an apartment which was on the seventh floor of a building located one-half block in a northerly direction from the intersection, testified that she did not see which car made the first entry into the intersection.
Concentrate on connections
● The sole eyewitness, having seen the accident from the window of an apartment which was on the seventh floor of a building located one-half block in a northerly direction from the intersection, testified that she did not see which car made the first entry into the intersection.
Concentrate on connections
● The sole eyewitness, having seen the accident from the window of an apartment which was on the seventh floor of a building located one-half block in a northerly direction from the intersection, testified that she did not see which car made the first entry into the intersection.
● There was only one eyewitness to the accident. She saw it from the seventh floor of a building that was one-half block north of the intersection. She testified that she did not see which car entered the intersection first.
Concentrate on connections
● By establishing a technique whereby the claims of many individuals can be resolved at the same time, class actions serve an important function in our judicial system in eliminating the possibility of repetitious litigation and providing claimants with a method of obtaining enforcement of claims which would otherwise be too small to warrant individual litigation.
Concentrate on connections
● By establishing a technique whereby the claims of many individuals can be resolved at the same time, class actions serve an important function in our judicial system in eliminating the possibility of repetitious litigation and providing claimants with a method of obtaining enforcement of claims which would otherwise be too small to warrant individual litigation.
Concentrate on connections
● By establishing a technique whereby the claims of many individuals can be resolved at the same time, class actions serve an important function in our judicial system in eliminating the possibility of repetitious litigation and providing claimants with a method of obtaining enforcement of claims which would otherwise be too small to warrant individual litigation.
● Class actions serve an important function in our legal system. They allow the claims of many to be solved at the same time and thus eliminate the possibility of repetitious litigation. They also allow claimants to enforce claims that would otherwise be too small to warrant individual litigation.
Concentrate on connections
● However, given the nature of Meridian’s assets and operations, in particular, the fact that much of Meridian’s value flows from its promising exploration and development projects for which N.I. 43-101 compliant Resource Estimates have yet to be completed and the fact that its primary producing assets are comprised of underground vein mines rather than more easily accessible and predictable pit mines, the due diligence process is lengthy and time-consuming.
Concentrate on connections
● However, given the nature of Meridian’s assets and operations, in particular, the fact that much of Meridian’s value flows from its promising exploration and development projects for which N.I. 43-101 compliant Resource Estimates have yet to be completed and the fact that its primary producing assets are comprised of underground vein mines rather than more easily accessible and predictable pit mines, the due diligence process is lengthy and time-consuming.
Concentrate on connections
● However, given the nature of Meridian’s assets and operations, in particular, the fact that much of Meridian’s value flows from its promising exploration and development projects for which N.I. 43-101 compliant Resource Estimates have yet to be completed and the fact that its primary producing assets are comprised of underground vein mines rather than more easily accessible and predictable pit mines, the due diligence process is lengthy and time-consuming.
● However, the due diligence process is lengthy and time-consuming, given the nature of Meridian's assets and operations. Much of Meridian’s value flows from promising exploration and development projects for which N.I. 43-101 complaint Resource Estimates have yet to be completed. Moreover, Meridian’s primary producing assets are comprised of underground vein mines rather than more easily accessible and predictable pit mines.
Concentrate on connections
● However, the due diligence process is lengthy and time-consuming, given the nature of Meridian's assets and operations. Much of Meridian’s value flows from promising exploration and development projects for which N.I. 43-101 complaint Resource Estimates have yet to be completed. Moreover, Meridian’s primary producing assets are comprised of underground vein mines rather than more easily accessible and predictable pit mines.
Concentrate on connections
● However, the due diligence process is lengthy and time-consuming, given the nature of Meridian's assets and operations. Much of Meridian’s value flows from promising exploration and development projects for which N.I. 43-101 complaint Resource Estimates have yet to be completed. Moreover, Meridian’s primary producing assets are comprised of underground vein mines rather than more easily accessible and predictable pit mines.
Concentrate on connections
● However, the due diligence process is lengthy and time-consuming, given the nature of Meridian's assets and operations. Much of Meridian’s value flows from promising exploration and development projects for which N.I. 43-101 complaint Resource Estimates have yet to be completed. Moreover, Meridian’s primary producing assets are comprised of underground vein mines rather than more easily accessible and predictable pit mines.
● However, given the nature of Meridian's assets and operations, the due diligence process is lengthy and time-consuming for two particular reasons:
1) much of Meridian’s value flows from promising exploration and development projects for which N.I. 43-101 complaint Resource Estimates have yet to be completed.
2) Meridian’s primary producing assets are comprised of underground vein mines rather than more easily accessible and predictable pit mines.
Concentrate on connections
● Compare original with final:
Concentrate on connections
However, given the nature of Meridian’s assets and operations, in particular, the fact that much of Meridian’s value flows from its promising exploration and development projects for which N.I. 43-101 compliant Resource Estimates have yet to be completed and the fact that its primary producing assets are comprised of underground vein mines rather than more easily accessible and predictable pit mines, the due diligence process is lengthy and time-consuming.
However, given the nature of Meridian's assets and operations, the due diligence process is lengthy and time-consuming for two particular reasons:
1) much of Meridian’s value flows from promising exploration and development projects for which N.I. 43-101 complaint Resource Estimates have yet to be completed.
2) Meridian’s primary producing assets are comprised of underground vein mines rather than more easily accessible and predictable pit mines.
Having sought since July 2010 to recover losses from Acme incurred in January of that year, the plaintiff, John Smith, sued Acme Co. for damages for breach of contract and also sued both Acme’s salesperson, Mary Brown, and Mary’s employer, Acme, for damages for negligent misrepresentation.
Concentrate on connections
Having sought since July 2010 to recover losses from Acme incurred in January of that year, the plaintiff, John Smith, sued Acme Co. for damages for breach of contract and also sued both Acme’s salesperson, Mary Brown, and Mary’s employer, Acme, for damages for negligent misrepresentation.
--- Lots going on there; reader has to pause and think
Concentrate on connections
Extract and operate on the messy phrase, creating chunks:
“Having sought since July 2010 to recover losses from Acme incurred in January of that year, the plaintiff, John Smith, sued Acme Co…. ”
Concentrate on connections
Extract and operate on the messy phrase, creating chunks:
“Having sought since July 2010 to recover losses from Acme incurred in January of that year, the plaintiff, John Smith, sued Acme Co…. ”
“John Smith had a contract with Acme Co. In January, 2010, Acme breached it. For the next seven months, John suffered losses but Acme refused to compensate him. So John sued Acme Co….”
Concentrate on connections
Concentrate on connections
Put like with like: John Smith had a contract with Acme Co. In January, 2010, Acme breached it. For the next seven months, John suffered losses but Acme refused to compensate him. So John sued Acme Co. for damages for breach of contract and also sued both Acme’s salesperson, Mary Brown, and Mary’s employer, Acme, for damages for negligent misrepresentation.
Concentrate on connections
Put like with like: John Smith had a contract with Acme Co. In January, 2010, Acme breached it. For the next seven months, John suffered losses but Acme refused to compensate him. So John sued Acme Co. for damages for breach of contract and also sued both Acme’s salesperson, Mary Brown, and Mary’s employer, Acme, for damages for negligent misrepresentation.
Concentrate on connections
Put like with like:
So John sued Acme Co. for damages for breach of contract and also sued both Acme’s salesperson, Mary Brown, and Mary’s employer, Acme, for damages for negligent misrepresentation.
Concentrate on connections
Put like with like:
So John sued Acme Co. for damages for breach of contract and also sued both Acme’s salesperson, Mary Brown, and Mary’s employer, Acme, for damages for negligent misrepresentation.
John seeks damages from Mary for negligent misrepresentation and from Acme for breach of contract and liability as Mary’s employer.
Concentrate on connections
John seeks damages from Mary for negligent misrepresentation and from Acme for breach of contract and liability as Mary’s employer.
Concentrate on connections
John seeks damages from Mary for negligent misrepresentation and from Acme for breach of contract and liability as Mary’s employer.
John seeks damages from:
● Mary for negligent misrepresentation;
● Acme for breach of contract and liability as Mary’s employer.
Concentrate on connectionsThe plaintiff, John Smith, having sought since July 2010 to recover losses from Acme incurred in January of that year, sued Acme Co. for damages for breach of contract and also sued both Acme’s salesperson, Mary Brown, and Mary’s employer, Acme, for damages for negligent misrepresentation.
John Smith entered into a contract with Acme Co. based on certain representations of its employee, Mary Brown. In January, 2010, those representations proved to be false. For the next seven months, John suffered losses but Acme refused to compensate him. John seeks damages from: ● Mary for negligent misrepresentation; and ● Acme for breach of contract and liability as Mary’s employer.
Concentrate on connections
Build sentences with easily-discerned meaning. Then connect them.● Keep subjects and verbs right together.
This creates a “strong sentence core.”● Divide information into bite-sized, connected chunks and then arrange the chunks logically. Don’t challenge your audience. ● Glue sentences together. The 4x100 relay.
Blazing clear paths of reasoning: the power of connections
● Gluing sentences: creates paths of reasoning
● Paths of reasoning: the data is selected and then connected in some way to lead to a conclusion
Blazing clear paths of reasoning: the power of connections
The nature of facts and law:
● Facts: every story is different; stories are connections between bits of data
● Law: usually embodied in tests containing content and internal logic (connections)
► OVERALL: the connections we choose and how we express them is the core of legal writing
Blazing clear paths of reasoning: the power of connections
Levels at which you must operate:
● within the sentence
● between sentences
● overall
Blazing clear paths of reasoning: the power of connections
Within sentences
● move from better-known information to new
Within sentences: move from better-known information to new
Example: “She was fired from her job. She robbed the bank because she had no money.”
Within sentences: move from better-known information to new
“She was fired from her job. She robbed the bank because she had no money.”
● The problem: The second sentence goes from new information to old. Reader encounters the word “robbed” and is thrown for a second
Within sentences: move from better-known information to new
“She was fired from her job. She robbed the bank because she had no money.”
● The problem: The second sentence goes from new information to old. Reader encounters the word “robbed” and is thrown for a second
● Better: “She was fired from her job. Needing money, she robbed the bank.”
Blazing clear paths of reasoning: the power of connections
Within sentences
● move from better-known information to new
Blazing clear paths of reasoning: the power of connections
Within sentences
● move from better-known information to new
Between sentences
● forge and strengthen connections
Between sentences: forge and strengthen connections
Something in sentence 2 should connect with sentence 1. And stronger the connection, the better.
Between sentences: forge and strengthen connections
● “She was fired from her job. Needing money, she robbed the bank.”
Between sentences: forge and strengthen connections
● “She was fired from her job. Needing money, she robbed the bank.”
● Substantive concern re the connection: just because you are fired doesn’t mean you need money. Maybe she had savings. Need more data to make the connection work. (Do you have the data?)
Between sentences: forge and strengthen connections
Maybe the evidence allows you to write this:
● “She was fired from her job. No longer receiving money and without savings, she robbed the bank.”
Between sentences: forge and strengthen connections
Maybe the evidence allows you to write this:
● “She was fired from her job. No longer receiving money and without savings, she robbed the bank.”
● Can we improve the connections (underlined)?
Between sentences: forge and strengthen connections
There are some techniques. Try to use as many as possible.
The game plan:
● Think of the glue you can use
● Think of the things being glued together; the more related or similar, the better the connection
Between sentences: forge and strengthen connections
Think of the glue you can use
Types of glue:
● Using overt connectors: next, then, this, that, and, but, however, although, in addition…
“He bought the book. But that purchase left him with no money.”
● Temporal connection
“He bought the book in March. In April, he asked for a refund.”
Between sentences: forge and strengthen connections
Think of the things being glued together; the more related or similar, the better the connection
● Repetition of a word or idea by using same word, a proxy for the word or a concept intimately associated with the word:
“He bought the book. A good book, it soon sold out.” (repetition)
“He bought the book. It was leather-bound.” (use of a proxy, here the pronoun “it”)
“He bought the book. Now his wallet was empty.” (related concept – buying leads to no cash in wallet)
Between sentences: forge and strengthen connections
Think of the things being glued together; the more related or similar, the better the connection. Back to our old example:
“She was fired from her job. No longer receiving money and without savings, she robbed the bank.”
Between sentences: forge and strengthen connections
“She was fired from her job. No longer receiving money and without savings, she robbed the bank.”
1.Improve proximity(Place the words being connected closer together, getting rid of words in between, if you can)
Between sentences: forge and strengthen connections
“She was fired from her job. No longer receiving money and without savings, she robbed the bank.”
1.Improve proximity(Place the words being connected closer together, getting rid of words in between, if you can)
“She was fired. No longer receiving money and without savings, she robbed the bank.”
Between sentences: forge and strengthen connections“She was fired. No longer receiving money and without savings, she robbed the bank.”
2.Make the link more precise(People no longer receive money for many reasons, not just firings. Choose a concept closer to the concept of firing.)
Between sentences: forge and strengthen connections“She was fired. No longer receiving money and without savings, she robbed the bank.”
2.Make the link more precise(People no longer receive money for many reasons, not just firings. Choose a concept closer to the concept of firing.)
“She was fired. Deprived of pay and without savings, she robbed the bank.”
Between sentences: forge and strengthen connections“She was fired. Deprived of pay and without savings, she robbed the bank.”
3. Condense the items being linked.
<clear meaning> + <clear meaning> = <strong connection>
(Is there a strong noun or a strong verb that has a clear meaning that can replace “fired” or “deprived of pay”?)
Between sentences: forge and strengthen connections“She was fired. Deprived of pay and without savings, she robbed the bank.”
3. Condense the items being linked. (Is there a strong noun or a strong verb that has a clear meaning?)
<clear meaning> + <clear meaning> = <strong connection>
“She was fired. Jobless and penniless, she robbed the bank.”(You want the pathway of reasoning in the sentences to be crisp)
<fired> <jobless and penniless> <rob the bank>
(Bonus: note the parallel words “jobless” and “penniless” within the second sentence. Even more connection achieved)
Between sentences: forge and strengthen connections
Comparison:
Old: “She was fired from her job. She robbed the bank because she had no money.”
Revised: “She was fired. Jobless and penniless, she robbed the bank.”
Between sentences: forge and strengthen connections
● Example: “John Smith wrote the book. The novel was a best seller.”
(Hints:
Can you think of adding glue? Are there any opportunities for making the items being glued more proximate, more precise, or condensed?)
Between sentences: forge and strengthen connections
● “John Smith wrote the book. His book was a best seller.”
● Also good: “John Smith wrote the book. It was a best seller.”(repetitions of words, or the use of proxies for them can create powerful connections)
● Best: “John Smith wrote the book, a best seller.” (compression enhances connection)
Between sentences: forge and strengthen connections
Taking it one step further: strengthening the connection to achieve a strategic end.
● “John Smith wrote the book. To his surprise, it was a best seller.”
● Another: “John Smith wrote the book. A labour of love, it was a best seller.”
(The concept being connected gets emphasized in the reader’s mind: the reader discovers the concept and grasps it. In the first example, the concept is John and his surprise; in the second, it’s his devotion to his writing.)
Concentrate on connections
Armed with sophisticated wordsmithing tools and cunning minds, skilful pleaders can make Tax Court matters sound like administrative law matters when they are nothing of the sort. When those pleaders illegitimately succeed, they frustrate Parliament’s intention to have the Tax Court exclusively decide Tax Court matters. Therefore, in considering a motion to strike, the Court must read the notice of application with a view to understanding the real essence of the application.
An example of lots of glue:
Concentrate on connections
Armed with sophisticated wordsmithing tools and cunning minds, skilful pleaders can make Tax Court matters sound like administrative law matters when they are nothing of the sort. When those pleaders illegitimately succeed, they frustrate Parliament’s intention to have the Tax Court exclusively decide Tax Court matters. Therefore, in considering a motion to strike, the Court must read the notice of application with a view to understanding the real essence of the application.
An example of lots of glue:
Concentrate on connections
Armed with sophisticated wordsmithing tools and cunning minds, skilful pleaders can make Tax Court matters sound like administrative law matters when they are nothing of the sort. When those pleaders illegitimately succeed, they frustrate Parliament’s intention to have the Tax Court exclusively decide Tax Court matters. Therefore, in considering a motion to strike, the Court must read the notice of application with a view to understanding the real essence of the application.
An example of lots of glue through constant repetition of concept, to make a point:
Concentrate on connections
Armed with sophisticated wordsmithing tools and cunning minds, skilful pleaders can make Tax Court matters sound like administrative law matters when they are nothing of the sort. When those pleaders illegitimately succeed, they frustrate Parliament’s intention to have the Tax Court exclusively decide Tax Court matters. Therefore, in considering a motion to strike, the Court must read the notice of application with a view to understanding the real essence of the application.PROBLEM (hammered home through repetition) SOLUTION (easy)
An example of lots of glue through constant repetition of concept, to make a point:
Between sentences: forge and strengthen connections
Exercise:
“The Supreme Court has released over 1,000 cases on the Charter. Those authorities have greatly changed Canadian law.”
(Hints:
Can you think of adding glue? Are there any opportunities for making the items being glued more proximate, more precise, or condensed? Want to pursue any strategic ends?)
Between sentences: forge and strengthen connections
“The Supreme Court has released over 1,000 cases on the Charter. Those authorities have greatly changed Canadian law.”
● Better: “The Supreme Court has released over 1,000 Charter cases. They have greatly changed Canadian law.”
● Another option: “The Supreme Court has released over 1,000 Charter cases, transforming Canadian law.”
● Another option: “The Supreme Court has released over 1,000 Charter cases, a deluge of law.”
● Another option: “The Supreme Court has released over 1,000 Charter cases, wreaking havoc in our law.”
Blazing clear paths of reasoning: the power of connections
Within sentences
● move from better-known information to new
Between sentences
● forge and strengthen connections
Blazing clear paths of reasoning: the power of connections
Within sentences
● move from better-known information to new
Between sentences
● forge and strengthen connections
Overall
● point or context first, then data, making the connections obvious
Point or context first, then data, making the connections obvious
Point or context first, then data, making the connections obvious
● Conclusion, then offer supporting data. (Point first writing)
● As readers hit the data, they evaluate whether it connects to the conclusion they’ve already read. If you’ve made the connection obvious, that’s easy.
● The readers’ finding of a connection: that becomes their own discovery, which they hold onto tightly (persuasion achieved).
Point or context first, then data, making the connections obvious
● Overtly connect the supporting data to the conclusion: “For four reasons, I find that the accused possessed the gun. 1.2. 3. 4.”
(1, 2, 3, 4 being bulleted subparas., separate paras., separate sections under headings)
Point or context first, then data, making the connections obvious
● Warn the appeal court off: “Based on my assessment of the weight of the evidence presented, I make four factual findings. Taken together, these show that the accused possessed the gun: 1, 2, 3, 4.”
Point or context first, then data, making the connections obvious
Legal tests have built-in connections. Exploit them:Smith Co. meets the three-fold test for a stay in RJR-MacDonald.
(1) Serious issue to be tried Blah blah blah.
(2) Irreparable harm Blah blah blah
Etc.
Point or context first, then data, making the connections obvious
Where possible, compress:
Smith Co. meets the three-fold test for a stay in RJR-MacDonald:
● Serious issue to be tried. Blah blah blah.
● Irreparable harm. Blah blah blah.
● Balance of convenience. Blah blah blah.
Point or context first, then data, making the connections obvious
Example:
Point or context first, then data, making the connections obvious
Example:
● Using larger connective mechanisms
- Point or context first
- Ordering of paragraphs within sections: logical, thematic, chronological
- Logical ordering of sections within the document
Concentrate on connections
● Using larger connective mechanisms
- Overviews and introductions
- Brief orienting paragraphs when needed
- Aids to structure: headings, transitions throughout to give constant orientation and pt. first
- Be the museum designer
Concentrate on connections