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We are a firm of lawyers. Our website should deal with legal subjects. Hopefully, we do not lapse from that rule and, without going to the trouble of conducting an audit, we think we do not.

It’s a broad rule and allows us to write (polemically if necessary) about such diverse topics as road accidentsaccidents at workmedical negligence,  planning act infringements and fingerprints.

We could, if necessary, even comment on Bilbo Baggins’ contract with the dwarves at the beginning of The Hobbit. (1)

Now this, we think, gives us a practical turn of mind. Admittedly, it is difficult to know what that means and I think its meaning varies from situation to situation, but it probably means that we expect to reach for and grasp finality, or, as they say in the USA, we expect to reach closure (for our client).

That militates against interest in reviews of the current state of the law but certainly does not exclude it; we read or write them if we need to do so, but they are not our reading of choice. (2)

It is possible that a certain interest we express, in probabilities, springs from this utilitarian approach. Sometimes this appears so clearly our client notices it; one such litigious client bought us a crystal ball because we had lamented (too often) we lacked one. (3)

Being practical also means being discreet. At the beginning of the US civil war in 1861, the newspapers published the Federal army’s plans for forthcoming movements, having got the information from the army’s generals. Undoubtedly, the sales of newspapers increased substantially in Richmond VA. We try to avoid equivalent mistakes.

We also know the difference between discreet and discrete, (otherwise we would be incomprehensible) and we try to avoid being that. In the same vein we distinguish our inferences  from perceived implications and we deplore the use of “presently” to mean “currently”.

We hope we can understand an opponent even, or particularly, where we disagree with him. Take the National Newspapers of Ireland, for example.  It is this writer’s contention that the NNI position on its claimed property rights in internet links may be an old and sad error; a failure to know and use the subjunctive  in writing or speech.

Be that as it may (4), such an error can end in trying to defend the indefensible and what lawyer, at least, wants to end there?

What is the subjunctive? It is one of the three moods of English verbs: the indicative, the imperative and the subjunctive. The subjunctive conveys ambivalence and uncertainty. (5)

NNI cannot deny the uncertainty of its position on links; it asked the Copyright Commission to remove the perceived (by NNI) uncertainty.

So, the original position of NNI was this:

“Were we to possess a property right in internet linking to our websites we would charge our notified rates”

Unfortunately if your journalists, particularly your editors, are unfamiliar with the subjunctive you will retreat to the indicative  or even the imperative: now you have rubbed everybody up the wrong way.

  1. Bilbo lacked legal advice. Surely he was more like a consumer than a professional burglar, as Gandalf had described his role? Nowadays if you go white water rafting, say, the organisers must ensure that you will come through the experience unharmed.
  2. This brings CPD (continuous professional development) to mind. We do our CPD quota of hours every year, and more besides. Otherwise, professionally, we are toast.
  3. In due course, when the shop in which he bought it went out of business we lamented to him how unforeseeable it was (not least for the shop) that that would happen!
  4. The subjunctive!
  5. When Phillip of Macedon sent a message to the Spartans – “You are advised to submit without further delay, for if I bring my army into your land, I will destroy your farms, slay your people, and raze your city.”, they replied; “If.”