Legal writing and written advocacy

Legal writing and written advocacy
David Stratas Federal Court of Appeal Please do not circulate without the permission of the author

Legal writing and written advocacy
Opening Comments

Introduction ● Doing written advocacy well: it is an art, not a science: practice is essential. ● This instruction will give you a gun, but you must learn how to fire the gun.

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

Introduction ● With the concept of written advocacy understood and mastered, you can make appropriate judgments about what to write and how to write ● The pervasiveness and importance of written advocacy in the practice of law

Introduction ● Many practising lawyers don’t understand the concept at all

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

Part I – The basics of writing
Legal writing and written advocacy Part I – The basics of writing

Introduction ● 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”

The purposes of legal writing

The purposes of legal writing
● Efficient information transfer from writer to reader

● Efficient information transfer from writer to reader ● Empowerment of the reader to deal with the information

● 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 golden rule of legal writing The golden rule of writing

● Always write for your audience
The golden rule of legal writing ● Always write for your audience

● Always write for your audience ● It is all about your audience
The golden rule of legal writing ● Always write for your audience ● It is all about your audience

The golden rule of legal writing
● Always write for your audience ● It is all about your audience ● It is never about you

Possible audiences: ● depends on your document and the occasion
The golden rule of legal writing Possible audiences: ● depends on your document and the occasion

The golden rule of legal writing
Possible audiences: ● depends on your document and the occasion ● factums: the judge

The nature of your audience

● Less knowledgeable about your topic than you will be – you must educate them

● 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

● Most people have limited time – you must make it easy
The nature of your audience ● Most people have limited time – you must make it easy

● Most people have limited time – you must make it easy ● Most hate working hard to understand something that could be easy – you must make it easy

● The reader has ego, independence and autonomy – you must empower them to use the information

So how should you write?

● This falls out of the purposes and the nature of your audience
So how should you write? ● This falls out of the purposes and 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.

What you must do 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

● NOT vague, indirect/evasive, and long-winded
So how should you write? ● NOT vague, indirect/evasive, and long-winded

So how should you write? ● You NEVER want the reader wrestling with your prose and questioning it

So how should you write? ● 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

The judicial audience

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

● BE CLEAR, DIRECT AND BRIEF
The judicial audience ● BE CLEAR, DIRECT AND BRIEF

The judicial audience ● BUT this audience does have some unique features and needs

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 ● The public interest
● Our motivations ● Our egos: empowerment vs. dictation ● Our fears

The judicial audience ● Our competing commitments
● When and where do we read? ● How much do we read? ● The state of our brains

The judicial audience ● People in two territories: different knowledge, motivations, needs and attitudes ● Persuasion: translate the stuff in your territory so it can be understood and appreciated in the other territory

The judicial audience ● Three levels of persuasion: intellectual persuasion, emotional persuasion, credibility persuasion

The judicial audience ● Three levels of persuasion: intellectual persuasion, emotional persuasion, credibility persuasion ● BE CLEAR, DIRECT AND BRIEF

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.

The judicial audience ● BE CLEAR, DIRECT AND BRIEF
“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. ● BE CLEAR, DIRECT AND BRIEF

How to do clear, direct and brief

● One main principle ● Four practical rules
How to do clear, direct and brief ● One main principle ● Four practical rules

One main principle

● Always provide context before detail, “point first writing”
One main principle ● Always provide context before detail, “point first writing”

One main principle: point first writing
● Always provide context before detail, “point first writing” ● Say what you are going to do, then do it. Make a promise. Keep it.

● Always ask yourself, “Does the audience (judge) know where I am going and why?” ● If not, stop, and implement “point first.”

● Why does “point first writing” work?
One main principle: point first writing One main principle ● Why does “point first writing” work?

● Why does “point first writing” work? ● Readers absorb information best if they understand its significance as soon as they see it, not afterwards.

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.

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. 57

● A model to emulate: the designer of a museum exhibit
One main principle: point first writing One main principle ● A model to emulate: the designer of a museum exhibit

● One main principle ● Four practical rules
How to do clear, direct and brief ● One main principle ● Four practical rules

The four rules One main principle
● The aim: to achieve clarity, directness and brevity. ● Individual sentences matter most of all.

The four rules One main principle

● Use active, direct verbs
The four rules One main principle ● Use active, direct verbs

● Use active, direct verbs ● Wage war on wimpy words
The four rules One main principle ● Use active, direct verbs ● Wage war on wimpy words

● Use active, direct verbs ● Wage war on wimpy words ● Use one plain word if you can

● Use active, direct verbs ● Wage war on wimpy words ● Use one plain word if you can ● Concentrate on connections

Use active, direct verbs
One main principle Use active, direct verbs

One main principle "It was said by the Supreme Court that the law must be changed."

One main principle "It was said by the Supreme Court that the law must be changed." Better version:

One main principle "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."

One main principle 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 principle 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." - 13 words words (-23%) - 30 page memo page memo

One main principle 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." - 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

One main principle 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." Who must change the law is left entirely hidden. Imprecision, evasion Who must change the law is disclosed. Precision, candour

One main principle “You will be made to be moved by this baseball bat."

One main principle “You will be made to be moved by this baseball bat." “This baseball bat will make you move!"

One main principle ● Exceptions

● Use active, direct verbs ● Wage war on wimpy words (especially verbs [action words]) ● Use one plain word if you can ● Concentrate on connections

One main principle Wage war on wimpy words

Wage war on wimpy words One main principle
● The biggest wimpy word of all

● The biggest wimpy word of all…the verb “to be”

● The biggest wimpy word of all…the verb “to be” ● Wherever possible, get rid of it – replace it with a stronger verb

● The biggest wimpy word of all…the verb “to be” ● Wherever possible, get rid of it – replace it with a stronger verb ● Same thing for other wimpy verbs: “to make,” “to have,” “to indicate,” “to undergo,” “to reach” or “to arrive at” (as in a decision)

● Wherever possible, get rid of the wimpy verb – replace it with a stronger verb ● It’s true for nouns too – but we’ll concentrate on verbs

● The whole family of the wimpy verb “to be”: am, are, is, was, were, be, being, been

“Smith’s contention is that those shares are worth $50 million”
Wage war on wimpy words One main principle “Smith’s contention is that those shares are worth $50 million”

“Smith contends that those shares
Wage war on wimpy words One main principle “Smith contends that those shares are worth $50 million”

“Smith values the shares
Wage war on wimpy words One main principle “Smith values the shares at $50 million”

“Smith’s contention is that those shares are worth $50 million” “Smith values the shares at $50 million”

“Smith’s contention is that those shares are worth $50 million” “Smith values the shares at $50 million” - 10 words words (-30%) - evasive, indirect crisp, direct

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.

Exercise: ● It was not until I opened my that I got the news. ● There is support for Mary Brown’s testimony in the testimony of John Smith.

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.

Exercise: ● We are in agreement with your position, but if it is your intention to cause delay, we will stand in opposition to you.

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)

● Section 1038 has pertinence to any contract that makes provision for attorney fees.

● Section 1038 has pertinence to any contract that makes provision for attorney fees. ● Section 1038 pertains to any contract regulating attorney fees

● 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.

Use one plain word if you can
One main principle Use one plain word if you can

One main principle ● We are more likely to absorb things that are easy to understand.

One main principle ● We are more likely to absorb things that are easy to understand. ● We are more likely to accept things

One main principle ● We are more likely to absorb things that are easy to understand. ● We are more likely to accept things [ (456-63) – 5 ] + [ 1/8 x (240) ] = 2 (2 x 3)(2 + 3)

One main principle ● We are more likely to absorb things that are easy to understand. ● We are more likely to accept things [ (456-63) – 5 ] + [ 1/8 x (240) ] = 2 (2 x 3)(2 + 3) 1 + 1 = 2

Use one plain word if you can One main principle
A tip: Write the way you would speak to a neighbour or a family member

“He underwent three breath tests by means of a breath testing device”

“He underwent three breath tests by means of a breath testing device” “He took three breath tests”

“He underwent three breath tests by means of a breath testing device” “He took three breath tests” - 12 words words (-58%) - evasive, indirect, crisp, direct, jarring invisible

One main principle “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 principle ● The questioning commenced at 5:30 p.m. ● The officer attended at the house as soon as his office was contacted.

One main principle ● The lawyer indicated that his client would not attend. ● Counsel advised the accused that the hearing was scheduled for 5:00 p.m.

Throat clearing phrases: “It is important to note that the plaintiff lived in Toronto”

Throat clearing phrases: “It is important to note that the plaintiff lived in Toronto” Instead: “The plaintiff lived in Toronto”

One main principle 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 principle 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 principle Redundant modifiers: In this world of today, official gov’t red tape is seriously destroying initiative among individual business executives.”

One main principle 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.”

Meaningless modifiers: “Most students generally find some kind of summer work.”

Meaningless modifiers: “Most students generally find some kind of summer work.” Instead: “Most students find summer work.”

One main principle 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 principle 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 principle Double negatives: “There is no reason not to believe that engineering malfunctions in nuclear energy systems cannot always be anticipated.”

One main principle 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 principle 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 principle 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.”

Use one plain word if you can Obvious implications:
One main principle 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.”

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 principle ● 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 principle Others: ● Adjacent to – next to ● In excess of – more than ● Prior to – before ● Pursuant to – under

One main principle Still others: ● It is respectfully submitted ● In my view ● In my opinion

One main principle 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 principle 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 principle 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 principle 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 crime investigation, a group of tenants gathered in the apartment building’s ground floor lobby.

One main principle The problem of over-elaborating the action: ● The director decided to put her in charge

One main principle The problem of over-elaborating the action: ● The director decided to put her in charge ● The director put her in charge

One main principle The problem of self-commentary: ● “Having considered the matter carefully, I conclude…” “While I am not submitting that…”

One main principle ● Edit out “that” where you can She said that the balloon that the kid lost burst. She said the balloon the kid lost burst. Deliberate passive: She said the balloon lost by the kid burst.

One main principle ● 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 principle ● 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

Concentrate on the verbs and nouns, delete the adjectives and adverbs. ● “She was very, very angry”

Concentrate on the verbs, delete the adjectives and adverbs. ● “She was very, very angry” ● “She was enraged” (Wydick, Plain English for Lawyers, 4th ed.)

Concentrate on the verbs, delete the adjectives and adverbs. ● “This is quite puzzling.”

Concentrate on the verbs, delete the adjectives and adverbs. ● “This is quite puzzling.” ● “This is baffling.”

Use one 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 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 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 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 plain word if you can Snarky adverbial beginnings.
One main principle Use one 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.

All three rules together
One main principle Use one 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.

One main principle Use one word if you can 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.

One main principle Use one word if you can 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 active, direct verbs ● Wage war on wimpy words (especially verbs [action words]) ● Use one plain word if you can ● 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.

Build sentences with easily-discerned meaning. Then connect them. But how?

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. Don’t challenge your audience. ● Put like with like. Don’t challenge your audience. ● Glue sentences together. The 4x100 relay.

● Keep subjects and verbs right together. This creates a “strong sentence core.”

● 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.

● 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.

● Keep subjects and verbs right together. This creates a “strong sentence core.”

● Keep subjects and verbs right together. This creates a “strong sentence core.” ● Divide information into bite-sized, connected chunks. Don’t challenge your audience.

● 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.

● 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.

● 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.

● 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.

● 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 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, in particular, the fact that much of Meridian’s value flows from its promising exploration and development projects for which N.I 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 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, 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 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, 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 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 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.

● Compare original with final:
Concentrate on connections ● Compare original with final: 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 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 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.

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

● Keep subjects and verbs right together. This creates a “strong sentence core.” ● Divide information into bite-sized, connected chunks. Don’t challenge your audience.

● Keep subjects and verbs right together. This creates a “strong sentence core.” ● Divide information into bite-sized, connected chunks. Don’t challenge your audience. ● Put like with like.

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 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 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.

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.

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.

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.

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 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.

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. 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.

● Keep subjects and verbs right together. This creates a “strong sentence core.” ● Divide information into bite-sized, connected chunks. Don’t challenge your audience. ● Put like with like. ● Glue sentences together.

Glue sentences together:
Concentrate on connections Glue sentences together: Mary Brown claims that she wrote the book, “Coming Alive”. The novel was about a love affair between two people, Bob and Janice. The man first began in 1984 romancing the woman. 16 years ago, their child was born out of wedlock.

Concentrate on connections Glue sentences together: Mary Brown claims that she wrote the book, “Coming Alive”. The book was about a love affair between two people, Bob and Janice. The man first began in 1984 romancing the woman. 16 years ago, their child was born out of wedlock.

Concentrate on connections Glue sentences together: Mary Brown claims that she wrote the book, “Coming Alive”. This book was about a love affair between two people, Bob and Janice. The man first began in 1984 romancing the woman. 16 years ago, their child was born out of wedlock.

Glue sentences together: Mary Brown claims that she wrote the book, “Coming Alive”. This book was about a love affair between two people, Bob and Janice. The man first began in 1984 romancing the woman. 16 years ago, their child was born out of wedlock.

Glue sentences together: Mary Brown claims that she wrote the book, “Coming Alive”. This book was about an affair between two people, Bob and Janice. Their affair in 1984 started. In 1996, they had a child. 207

Glue sentences together: Mary Brown claims that she wrote the book, “Coming Alive”. This book was about an affair between two people, Bob and Janice. Their affair started in In 1996, they had a child. (Juxtaposition, for better glue) 208

Glue sentences together: Mary Brown claims that she wrote the book, “Coming Alive”. This book was about an affair between two people, Bob and Janice. In 1984, their affair started. In 1996, they had a child. (Parallelism, for better glue) 209

Glue sentences together: Mary Brown claims that she wrote the book, “Coming Alive”. The novel was about a love affair between two people, Bob and Janice. The man first began romancing the woman in years ago, their child was born out of wedlock. Mary Brown claims that she wrote the book, “Coming Alive”. This book was about an affair between two people, Bob and Janice. In 1984, their affair started. In 1996, they had a child. 210

Glue sentences together: Mary Brown claims that she wrote the book, “Coming Alive”. The novel was about a love affair between two people, Bob and Janice. The man first began romancing the woman in years ago, their child was born out of wedlock. Mary Brown claims that she wrote the book, “Coming Alive”. This book was about an affair between two people, Bob and Janice. In 1984, their affair started. In 1996, they had a child. Gluing sentences together can result in huge simplification 211

Glue sentences together: Words that can act as glue – Transitional words: "for example", "therefore", "however", "on the other hand", "further", "moreover", "thus", "consequently", "accordingly." Orienting words: "for the most part", "historically," "in this case." 212

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: 213

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: 214

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: 215

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: 216

● Keep subjects and verbs right together. This creates a “strong sentence core.” ● Divide information into bite-sized, connected chunks. Don’t challenge your audience. ● Put like with like. ● Use larger connective mechanisms

● Using larger connective mechanisms
Concentrate on connections ● Using larger connective mechanisms

● Using larger connective mechanisms - Point first - Ordering of paragraphs within sections: logical, thematic, chronological - Logical ordering of sections within the document

● 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

The proximity principle: ● Closely related information and ideas should be kept together ● Unrelated information and ideas should be kept apart ● The reader encounters the facts and law together when relevant

● Proximity principle (not recommended): - Set out the dry legal test: “For X, there are three branches…” - Then plaintiff’s position on branch one, branch two, branch three. - Then defendant’s position on branch one, branch two, branch three. - Then why each branch is in plaintiff’s favour, going branch by branch. 223

● Proximity principle (recommended): Plaintiff wins on the X test: (1) Branch one. (put all the branch one stuff here) (2) Branch two. (put all the branch two stuff here) (3) Branch three. (put all the branch three stuff here) 224

Exercises

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 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 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 There are many ways in which James Reimer, 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 It is critical to note that, with respect to what we will see tonight, trouble is caused when Phil Kessel 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”

Part II – Advanced writing techniques
Law 633- Legal writing and written advocacy Part II – Advanced writing techniques

Advanced techniques Ways to achieve emphasis
and glue ideas to the reader’s brain without the reader really knowing it and without using CAPS, Bold, underline, or italics.

Skilful use of detail can persuade
Advanced techniques Skilful use of detail can persuade

Advanced techniques Skilful use of detail can persuade “The police obtained information that many bikers were to gather a number of times on a property in an Ontario town.”

Advanced techniques Skilful use of detail can persuade “The police obtained information that many hundreds of members, friends and associates of a known outlaw motorcycle gang, the Paradise Riders, were to gather on four weekends on a small property in the middle of the quiet rural hamlet of Caesarea, population 700.”

Advanced techniques Skilful use of detail can persuade “The police obtained information that many hundreds of members, friends and associates of a known outlaw motorcycle gang, the Paradise Riders, were to gather on four weekends on a small property in the middle of the quiet rural hamlet of Caesarea, population 700.” “The Respondent obtained information that many bikers were to gather a number of times on a property in an Ontario town.”

Advanced techniques Skilful use of detail can persuade This technique builds on an important truth in persuasion: demonstration is better than assertion

Advanced techniques Punctuation

The dash – a comma with attitude
Advanced techniques The dash – a comma with attitude “The appellants fail to address how this Court should balance the important needs of public safety, public order, peacekeeping and highway safety on the one hand with the vital constitutional rights of individuals on the other hand, perhaps because they don’t acknowledge the existence of the former.”

The dash – a comma with attitude
Advanced techniques The dash – a comma with attitude “The appellants fail to address how this Court should balance the important needs of public safety, public order, peacekeeping and highway safety on the one hand with the vital constitutional rights of individuals on the other hand – perhaps because they don’t acknowledge the existence of the former.”

The semi-colon: another comma with attitude
Advanced techniques The semi-colon: another comma with attitude “The appellants fail to address how this Court should balance the important needs of public safety, public order, peacekeeping and highway safety on the one hand with the vital constitutional rights of individuals on the other hand: perhaps because they don’t acknowledge the existence of the former.”

The framing dash – to emphasize a particular idea
Advanced techniques The framing dash – to emphasize a particular idea “The appellants fail to address the balancing of interests – the important needs of public safety, public order, peacekeeping and highway safety on the one hand and the vital constitutional rights of individuals on the other hand – perhaps because they don’t acknowledge the existence of the former.”

Use lists (tabulations)
Advanced techniques Some spice in your writing Use lists (tabulations)

Advanced techniques Use lists (tabulations) You are eligible for a bonus at the end of a calendar year if your sales are over $2,000,000, you are still an employee on December 31 of that year, your performance review is satisfactory and you have been with the company more than 10 years.

You are eligible for a bonus at the end of a calendar year if: (a) your sales are over $2,000,000; (b) you are still an employee on December 31 of that year; (c) your performance review is satisfactory; and (d) you have been with the company more than 10 years.

Lists and point first combined
“[T]he facts as found…do not implicate any of the three main elements of Canada’s war crimes policy: (a) Direct involvement or complicity. The Federal Court did not find that Mr. Odynsky and Mr. Katriuk were directly involved or directly complicit in war crimes or crimes against humanity. (b) Awareness or contribution. The Federal Court did not find that Mr. Odynsky and Mr. Katriuk were aware of the commission of war crimes or crimes against humanity, nor did it find that they contributed directly or indirectly to their occurrence. …..

Advanced techniques Artful modifiers

Advanced techniques Artful modifiers Resumptive modifiers:
“The Supreme Court has decided 970 Charter cases, cases that have enhanced our understanding of human rights.”

Advanced techniques Artful modifiers Summative modifiers:
“The Supreme Court has decided 970 Charter cases, a mountain of law that no one could have foreseen.”

Advanced techniques Artful modifiers
“The Supreme Court has decided 970 Charter cases, a mountain of law that no one could have foreseen.” “No one could have foreseen that the Supreme Court would decide 970 cases by now.”

(and paragraph) length
Advanced techniques Some spice in your writing Vary the sentence (and paragraph) length

Vary the sentence (and paragraph) length:
“We must take September 15 as the culminating date. On this day the Luftwaffe, after two heavy attacks on the 14th, made its greatest concentrated effort in a resumed attack on London. “It was one of the decisive battles of the war, and, like the Battle of Waterloo, it was on a Sunday. I was at Chequers. I had already on several occasions visited the headquarters of Number 11 fighter Group in order to witness the conduct of an air battle, when not much happened. However, the weather on this day seemed suitable to the enemy and accordingly I drove over to Uxbridge and arrived at the Group Headquarters.”

The start and end of a sentence is prime real estate
Advanced techniques The start and end of a sentence is prime real estate “Never in the field of human conflict was so much owed by so many to so few.”

The start and end of a sentence is prime real estate
Advanced techniques The start and end of a sentence is prime real estate “The police obtained information that many hundreds of members, friends and associates of a known outlaw motorcycle gang, the Paradise Riders, were to gather on four weekends on a small property in the middle of the quiet rural hamlet of Caesarea, population 700.”

Advanced techniques The start and end of a sentence is prime real estate. The same is true for the start and end of paragraphs.

Beginning: for orientation End: we think there might be a climax
Advanced techniques This plays to a characteristic of the human mind: we pay most attention to the beginning and the end of any piece of communication. Beginning: for orientation End: we think there might be a climax

Advanced techniques Repetition of words or ideas or structures
(if not overused) can underscore a point

Advanced techniques Repetition of words or ideas or structures
(if not overused) can underscore a point “We must have government of the people, by the people, for the people.”

Advanced techniques “We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.” Winston Churchill

Advanced techniques Structures leading to climax, to emphasize a lengthy, careful process: “The plaintiff carefully negotiated the draft contract, frequently amended the draft contract and finally signed the draft contract.”

Advanced techniques “The plaintiff carefully negotiated the draft contract, frequently amended the draft contract and then, finally, signed it.” “After many negotiations and changes, the plaintiff signed the contract.”

Advanced techniques Parallel structures (periodic sentences) and rhythm

Advanced techniques Parallel structures (periodic sentences) and rhythm The persuasive technique: a concrete, repetitive structure and a rhythm comforts us and makes us want to hold onto the idea firmly. We grasp onto beat and cadence.

Advanced techniques Parallel structures (periodic sentences) and rhythm: “Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all details and treat his subjects only in outline, but that every word tell.” -- E.W. White, The Elements of Style

Advanced techniques Examples:
“We must have government of the people, by the people, for the people.”

Unexpected reversals of concepts, abrupt transitions, ironic twists
Advanced techniques Unexpected reversals of concepts, abrupt transitions, ironic twists

Advanced techniques Examples:
●“Do not ask what your country can do for you; ask what you can do for your country.”

Advanced techniques Another example
● Knowing how flooded Manhattan was, he led us there. We followed him, unaware of what we were about to see.

Advanced techniques Another example
● Knowing how flooded Manhattan was, he led us there. We followed him, unaware of what we were about to see. Suppose you wish to emphasize the fact he knew and we didn’t?

Original version: ● Knowing how flooded Manhattan was, he led us there. We followed him, unaware of what we were about to see. Reworked versions: ● Off to the Manhattan floods we went. Knowingly, he led; blindly, we followed. (thrusting the contrast together, with parallelism) ● Off to the Manhattan floods we went. Knowingly, he led; we followed, blindly. (chiasmatic structure) ● Off to the Manhattan floods we went. He led knowingly. We followed blindly.

Another example: “[40] The launching of a proposed class action is a matter of great seriousness, potentially affecting many class members’ rights and the liabilities and interests of defendants. Complying with the Rules is important.”

“[40] The launching of a proposed class action is a matter of great seriousness, potentially affecting many class members’ rights and the liabilities and interests of defendants. Complying with the Rules is not trifling or optional; mandatory and essential it truly is.” (Merchant v. Minister of National Revenue, 2010 FCA 184)

Advanced techniques Why this works: we notice and absorb sudden shifts of concept. Provided they are set up right, they hammer home ideas without jarring the reader.

Advanced techniques Others:
● Arranging the data to trigger shared understandings or dominant cultural themes ● Understatement persuades

Exercises Exercise on connections – Exercise “G”

Legal writing and written advocacy

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