David Stratas Federal Court of Appeal Legal writing and written advocacy

David Stratas

Federal Court of Appeal

Legal writing and written advocacy

Opening Comments


● 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


● 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


Possible audiences:

● depends on your document and the occasion

● factums: the judge

● litigation reports and opinions: client / in-house lawyer


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


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


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.


● 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


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




● BUT this audience does have some unique features and needs

● Even more important to BE CLEAR, DIRECT AND BRIEF


● Our existing knowledge: the law

● Our existing knowledge: the facts


● The adversarial context: lack of trust

● Our motivations: public interest, practical problem solvers

● Our egos: empowerment vs. dictation


● Busy

● How much do we read?

● When and where do we read

● The state of our brains


● 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


● More about persuasion…

● Three levels of persuasion: intellectual persuasion, emotional persuasion, credibility persuasion




“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


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.”


● 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.


● 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


● 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 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”)


● 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


● Concentrating on the verb “to be”

● There’s a whole family of wimps: am, are, is, was, were, be, being, been, becoming, became


"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)


Bad version:


Good version:

"The Supreme Court said that Parliament must change the law."


- 13 words - 10 words (-23%)

- 30 page memo - 23 page memo

Bad version:


Good version:



- 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:


Good version:



- Who must change the law is left entirely hidden.

- Imprecision, evasion

- Who must change the law is disclosed.

- Precision, candour

Bad version:


Good version:



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


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

“This baseball bat will make you move!"


● Exceptions: when passive voice might be better than active voice.


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

(nominalizations)


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


“Smith contends that those shares are worth $50 million”


“Smith values the sharesat $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”

“Smith’s contention is that those shares are

worth $50 million”

- 10 words - 7 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 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.


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)

● “To indicate” – say, shout, declare, etc.


● 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.


● Eliminate wimpy words

● Use one plain, good word if you can



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


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 underwent three breath tests by

means of a breath testing device”


- 12 words - 5 words (-58%)

- evasive, indirect, - crisp, direct,

jarring invisible


“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.)


● The questioning commenced at 5:30 p.m.

● The officer attended at the house as soon as his office was contacted.


● 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”


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.”


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”


Redundant modifiers:

In this world of today, official gov’t

red tape is seriously destroying initiative

among individual business

executives.”


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.”


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.”


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.”


Double negatives:

“There is no reason not to believe that

engineering malfunctions in nuclear energy systems cannot

always be anticipated.”


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.”


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.”


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.”


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.”


● 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


Others:

● Adjacent to – next to

● In excess of – more than

● Prior to – before

● Pursuant to – under


Still others:

● It is respectfully submitted

● In my view

● In my opinion

When might you use these?


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.



● 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.



● 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.


The problem of over-elaborating the action:

● The director decided to put her in charge


The problem of over-elaborating the action:

● The director decided to put her in charge

● The director put her in charge


The problem of self-commentary:

● “Having considered the matter carefully, I conclude…” “While I am not submitting that…”


● 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.


● 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.)



● “This is quite puzzling.”



● “This is quite puzzling.”

● “This is baffling.”



● “The witness intentionally testified untruthfully about the cargo”

Use one word if you canOne main principleUse one plain, good word if you can


● “The witness intentionally testified untruthfully about the cargo”

● “The witness lied about the cargo.”



● “Defendant’s sales agents maliciously

took advantage of people with little money and limited intelligence.”



● “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.”


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.


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.


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.


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.


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.


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.


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!


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.


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.


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.


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.


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


● 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 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.”


● 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.









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.




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.


● 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.





● 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.





● 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. 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.







● 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.


● 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. 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.




--- Lots going on there; reader has to pause and think


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…. ”


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….”



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: 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;

● 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.



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


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


Levels at which you must operate:

● within the sentence

● between sentences

● overall


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.”


“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


“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.”


Within sentences



Within sentences


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.


● “She was fired from her job. Needing money, she robbed the bank.”


● “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?)


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.”


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)?


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


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.”


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)


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.”



1.Improve proximity(Place the words being connected closer together, getting rid of words in between, if you can)



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)


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.”


● 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?)


● “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)


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.)


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:



An example of lots of glue:



An example of lots of glue through constant repetition of concept, to make a point:


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:


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?)


“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.”


Within sentences


Between sentences



Within sentences


Between sentences


Overall

● 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).


● 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)


● 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.”


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.


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.


Example:


Example:

● Using larger connective mechanisms

- Point or context 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


Documents

David Stratas Federal Court of Appeal Legal writing and written advocacy