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Thursday Thinkpiece: Guthrie’s Guide to Better Legal Writing, 2/e

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Guthrie’s Guide to Better Legal Writing, 2/e

Author: Neil Guthrie
ISBN: 9781552215692
Publisher: Irwin Law Inc.
Page Count: 300 pages
Publication Date: April 9, 2021
Regular Price: $60

Excerpt: 159–62 and 255–60 [cross-references and citations omitted]

TERMS FOR LAWYERS

Counsel

Counsel is an ancient term for one’s legal advisers as a body (The accused did not have the benefit of counsel when he was interrogated) or for a single legal adviser (Maria acted as counsel to the federal government, for which she was made Queen’s Counsel).

A judge will address a Canadian barrister as Counsel (if not by name); in the United States, it would more usually be counselor (with a single American L).

The OED says counsel is rarely pluralised; should never be, in my view (and Fowler’s), but one sees it. As a job title, legal counsel is a redundancy. Just counsel (although investment counsel might disagree).

In US firms, many (typically grey-haired) professionals are described as of counsel — that is, still practising, but no longer a partner and too senior to be an associate. As a description, that’s fine, but as a job title it is not (How many Of Counsels does your firm have? Yuck.).

Counsel and council were historically to some extent interchangeable; over time, council came to mean a board or assembly and its members councillors (Privy Councillors, municipal councillors) — although the members of such a group could also be one’s counsellors if they offered advice, whether legal or general. 

Juniors in general 

“Why can’t we just use sponsee?” This question came up in a recent discussion forum for professional development people at law firms. The subject was terminology to describe law students and recently minted lawyers in need of guidance from more senior members of the profession. 

The reason we can’t use sponsee is that it is an ugly neologism (as bad as attendee, evaluatee, or secondee).

Other equally icky suggestions that came up: 

  • aspirant 
  • disciple 
  • fosterling 
  • protégé(e
  • ward 

And, of course, the dreaded mentee — which must be rejected because there is no verb ment (a mentor is called that after Mentor, who took charge of Telemachus, the young son of Odysseus (Ulysses), during the latter’s absence during the Trojan War).

Budding English advocates undergo a pupillage, but pupil may seem a bit old-fashioned in North America. And, like articling student, articled clerk, or articled student, it describes only someone who is not yet a lawyer. A more recent UK term is NQ, for newly qualified [lawyer], which would work — but only for those who have passed out of the student phase. 

Why not something simple like junior, which is inclusive and has both the sanction of time and the advantage of simplicity? 

Dickens uses it in Pickwick Papers (1837): “Mr. Sergeant Buzfuz . . . leads on the other side. That gentleman behind him, is Mr. Skimpin, his junior.” (A sergeant or serjeant was a senior barrister in the old Court of Common Pleas.)

Terms for associates who won’t make partner but who are allowed to stick around

The old Darwinian rule for associates was “up or out,” meaning that if you weren’t going to be asked to join the partnership, you’d be more or less politely shown the door. Some firms still do it that way, but not all. Terminology varies, but the most common term in my neck of the woods for someone who’ll never have a corner office is Senior Associate.

Counsel is also used for associates not on the partner track, but also for lawyers past retirement age but still profitable or prestigious enough to keep on board. Counsel is also used for senior lateral hires who are not immediately made partners, although that often follows a sort of probationary period. (And see the discussion of the bastard noun Of Counsel in the previous section.)

In the United States, there is a wider variety of nomenclature. For associates who aren’t on the partner track, these titles are apparently seen on US business cards: 

  • Agile Counsel 
  • Career Associate 
  • Department Attorney 
  • Innovative Staffing Attorney 
  • Permanent Associate 
  • Practice Group Attorney 
  • Staff Attorney 
  • Team Attorney

Agile Counsel and Innovative Staffing Attorney sound especially bizarre: don’t you want all your lawyers to be agile, at least mentally? And is every other job assignment unimaginative? Career Associate and Permanent Associate are descriptive but a bit tragic (career-limited, stuck in a rut) — and Permanent may imply a level of job security that no associate should expect. Staff Attorney suggests in-house counsel to me, but maybe that’s the idea. The others have a Knowledge Management feel to them, but that may accurately reflect the work this type of lawyer ends up doing. In the United Kingdom, this would be a Professional Support Lawyer or PSL, in Canada a KM Lawyer (if not a Senior Associate). In light of that KM-ish category, Agile Counsel may refer to Agile, the project-management process, rather than agile (the normal adjective). That makes a bit more sense, but as a job description it would baffle all but initiates. 

Law students 

A friend, who is originally from the United Kingdom and not a lawyer, asked me why we call our trainees articling students

The articling element comes from the articles (provisions, clauses) of the agreement by which a mediaeval apprentice was bound to his (it would have been his in the Middle Ages) principal. 

In full, it was always articles of clerkship for would-be lawyers, clerk being an old word for anything kind of scribe-y. My late, very old-school father would refer to articled clerks (and pronounce the second word to rhyme with larks not lurks). 

In British Columbia, the technical term is articled student; in Ontario and other provinces, it is the rather unlovely articling student, which I suspect dates from the 1960s. 

Both come from the verb to article, meaning to be in a formal legal apprenticeship under the supervision of a lawyer. 

In England, trainee accountants also article — and there, one is generally articled to someone specific. In Canada, one just articles in a general way, as the first Canadian usage listed in OED suggests: He articled as a student-at-law in September of 1912 (from the Manitoba Free Press, 1918). 

The at-law bit is an old-fashioned way of saying “in relation to the activity of law”; one is also at the bar or a barrister-at-law once called to the bar

The bar being the railing or other physical barrier surrounding the judge in a courtroom, not one of the cocktail variety — although lawyers are often no strangers to those. By extension, the practice of advocacy itself. 

Most of this would baffle an American legal practitioner, who typically does a brief stint as a summer associate (what we would call a summer student), then writes the bar exam, and immediately becomes an attorney (in a firm, with the title of associate, as here).

 

***

YOUR QUESTIONS ANSWERED

Did the COVID-19 pandemic raise any linguistic or grammatical issues for you?

Linguistic ones, certainly.

Curbside pick-up

All of a sudden, we did a lot of this. It felt like shopping in Bulgaria in the mid-1970s, lining up for the remaining 40-watt bulb on the shelf. If you live in the United Kingdom or other parts of the Commonwealth, you would be doing it at the kerbside.

The form curb is usual in North America in describing the raised edge of a sidewalk, walkway, or paved area. Both versions are seen in early eighteenth-century examples (sometimes kirb). Curb actually makes more sense, given that the word comes from the French courbe and Latin curvus, meaning “curved.”

Why the K, then? 

The OED points to the word kennel by way of comparison, which also comes from a C-word: canis, which is Latin for “dog.” In mediaeval French, a canaille was a pack of dogs. Spelling being flexible in the Middle Ages, the word also appeared as chienaille or kienaille. A chenil or kenil was the enclosure or structure one put them in. For reasons that aren’t entirely clear, British English went with kennel and, after a flirtation with curb, kerb

The verb meaning “to restrain” is universally spelt curb

Face mask 

Never write or say this — it is just a mask. There is no other kind but that worn on the face (except figuratively). Face mask is as silly as foot shoe or head hat

As these twenty different senses of mask that are listed in the OED will attest: 

  • face-covering 
  • image of a face worn by an actor 
  • representation of a human or animal head 
  • grotesque representation of a face worn at carnivals, etc. 
  • facial expression concealing emotion, giving false impression 
  • human face resembling a mask 
  • protective covering for the face 
  • surgical dressing for the face 
  • medical device placed over the mouth and nose 
  • gauze or fibre covering for mouth and nose 
  • gas mask 
  • swimmer or diver’s watertight shield for the eyes 
  • face disguised by cosmetics 
  • cosmetic preparation for the face 
  • likeness of someone’s face in clay or wax, especially from a mould 
  • stylized representation of a face 
  • face, head, or skinned head of a fox or other animal 
  • mouth of a dragonfly larva 
  • marking on the face of an animal 
  • blotchy discoloration on the face of a pregnant woman 

Please do wear a mask, but refer to it properly.

When we return to normalcy — or is that normality?

Properly, it’s normality. Just as formal leads to formality and final to finality. But one does also see normalcy, as in this New York Times piece.

You won’t see the word normalcy as much outside the United States, however. (And whether one saw the concept there from 2016 to 2020 is another question entirely.) Although normalcy was used as early as 1857, the word really only came into its own in 1920, when Warren G Harding used “A Return to Normalcy” as his campaign slogan in that year’s presidential election. He meant the conditions that had existed before the First World War and the Spanish flu pandemic that came in its wake. Harding was ridiculed by the word nerds of the day, but he won the election handily — and the word gained currency.

Normality has a slight edge in terms of history: the earliest example cited in the OED is 1839. But it’s also close to the post-classical Latin normalitas (“the state of being governed by rules or norms”), seen as far back as the eleventh century.

I’d go with (and hope for) normality.

Pandemic versus epidemic: what’s the diff?

Coverage, essentially.

You’ll need a little ancient Greek here. The –demic suffix comes from demos, which means “the people,” “the community.” Demos is the root of democracy (“rule by the people”).

The epi– bit comes from the Greek for “upon,” “at,” “close to.” Think of the epicentre of an earthquake.

Pan–, on the other hand, means “universal.” Pandemonium (or pandaemonium) is total confusion or chaos; pantheism is the belief that the divine is present everywhere in the universe.

An epidemic is a disease that touches a fairly localized group; a pandemic reaches far beyond the local. One would therefore say There was an epidemic of meningitis among local highschool students, but The world was severely affected by the Spanish flu, AIDS, and COVID-19 pandemics

The earliest use of pandemic appears to be 1666 (a year of plague in London); epidemic goes back further — to 1603 in its current form, to the late fifteenth century as epidemy

Let’s get phygital 

As long as we don’t call it that, though. (In part because “Let’s get phygital” may conjure up images of Olivia Newton-John in a headband for those of a certain age.) 

Phygital is a newish (and unlovely) term for communication or connection that combines the physical and the digital. It comes from the pre-COVID world of marketing and sales. In the pandemic period, if you were hosting a virtual breakfast or happy hour for the summer students in your office using a digital platform, you could make it (ugh) phygital by sending participants all the food and drink they need to have an experience that feels a least a bit more like being in the same room with everyone else. 

But phygital? Please, no. Just send the cereal or the ready-made Negronis and try to have a good time.

Reflections on Language From Confinement 

I often feel like a grumpy old schoolmaster, rapping the knuckles of my hapless pupils with a ruler when they misplace a comma or mistake who’s for whose

A certain amount of knuckle-rapping is necessary, but no one who writes about words and writing can afford to be overly prescriptive. 

Language changes over time, sometimes for the better. I like text as a verb; it neatly captures a new kind of linguistic transmission we didn’t have when my knuckles were being rapped as a schoolboy. Readers of my blog will be well aware of new words I am less fond of (productise, reference (as a verb), attendee, learnings, proactive, to name but a few). 

I also don’t like the way crucial has changed in meaning from “that which finally decides between two hypotheses” (crux being Latin for an instrument of torture and, by extension, a difficult problem) to merely “very important,” but there isn’t much I can do about it at this point.

What we think of as long-established rules sometimes turn out not to be that old: Shakespeare broke just about every grammatical and stylistic rule you can think of, mainly because it wasn’t until much later that many of them came into being (like coherent punctuation and consistent spelling). Many were invented (and were the subject of vigorous debate) by writers of grammars and dictionaries in the eighteenth and nineteenth centuries. Some rules turn out not to be as hard-and-fast as we think (between versus among, none is/are). Some are arbitrary, if useful for the sake of consistency (the “rules” of legal citation, for example).

This doesn’t mean writing is a free-for-all, at least in a professional or business context. You want to write prose that your peers will recognize as technically correct and socially appropriate (in the sense of respecting norms, rather than being polite). A certain amount of conformism is required, so if you want to be a linguistic radical, law may not be the best berth for you.

You don’t want to write exactly the way others do, though. That’s boring. A distinctive voice, an unexpected turn of phrase, a fresh metaphor, or an unusual word will make your writing vivid and memorable. Heaven knows there are enough dull legal blog posts out there.

Writing like the herd is not only boring; it can also show lack of thought. This is what troubles me about buzzwords and jargon. In an exchange on LinkedIn, a reader suggested that what I call bad business jargon can often be useful shorthand that gets the job done when everybody understands the terminology. OK, but it can just as often be a cover for a problematic lack of actual content or analysis. The New Yorker cartoon on my desk calendar for the day of that LinkedIn exchange depicted a guy telling his audience in a business meeting, Enhanced branding metrics drive robust solutions for scalable monetization of jargon, which seemed apt. Jargon more often than not means nothing, or not much.

It’s important, particularly for lawyers, to think about the meaning of words and to use them with precision and purpose. 

When words lose meaning, they can be manipulated and the underlying facts distorted. Think of the Twitterer-in-Chief or his precursors in Orwell’s Ministry of Truth. 

But perhaps I have just been spending too much time alone in my apartment.

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