Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, September 1, 2018

Your Legal-Writing Voice and the Quotations that Drown it Out

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"Quotation, n: The act of repeating erroneously the words of another."

—Ambrose Bierce

Authors talk about both the sanctity and fragility of the writer-reader connection. Sanctity because there is nothing more valuable to a writer than getting their reader to connect to them. To trust them. To listen. Fragility because, as hard as that connection is to forge, it’s sure easy to break. Studies say that we now have the attention span of a goldfish (or even less). Give your reader an excuse to stop reading, and they’ll take it.  

So how do you keep that connection humming? A lot of it depends on your writing voice: the unique timber that each of us has when we write. Without a distinct voice, our writing is fungible—the author faceless. It's through our voice that readers see who we are, and whether we're worth listening to. 

Our voice coalesces from several components working together: our word choice, word order, organization, and more. If you carefully craft your writing voice—using tools like sentence structure and vivid language—the link will snap into place. Your readers will hear your voice as clear as if you spoke aloud. Use the right voice, and readers will trust you. With their trust won, you can persuade them.

Given how important our voice is, you would think lawyers wouldn’t give it up easily. You’d think that all their writing would be focused on cultivating that personal connection with their reader and grasping tight until the final page.

But many lawyers give up their voice at the first chance—by quoting the voices of others. They quote so much, in fact, that readers aren’t sure whose voices they’re hearing. First, it’s a judge in one quoted case, then another judge in another quoted case—perhaps a professor or two from some block-quoted law review articles. And the lawyer’s voice? Lost in the cacophony.

Quoting is powerful. It allows you to invite other trustworthy voices into your brief. But there is a way to do it without giving up your voice in the process. Great legal writers do it all the time: their distinctive voice rings true throughout their briefs, even with plenty of quoting in the mix. I like to think of these good writers as the narrators of their briefs, and the quotes they use, the characters. You can always tell it’s the lawyer telling the story—even when the characters fall into some dialogue.

To see what I mean, compare these two snippets. First, a legal writer who gave up his voice to his quotes:

“The public trust doctrine is an old common law principle, from whence several concepts have arisen.” James v. Platt, 314 F.3d 524 (7th Cir. 2000). "The doctrine proceeds in several steps, although none of them are dispositive on their own.” Id. “Occasionally, some have framed this doctrine as one of separation of powers..." 

The lawyer's voice is silent. What voices do we hear? Some random judges in other cases. 

Compare that with a quoting pro and Supreme Court frequent flyer:

But as this Court explained in American Needle, “that is not what the statute means.” Id. To take an obvious example, “while the president and a vice president of a firm could (and regularly do) act in combination, their joint action generally is not the sort of ‘combination’ that § 1 is intended to cover.” Id. at 195. Similarly, when two companies pool their capital to form a joint venture to sell a product, the venture’s “pricing policy may be price fixing in a literal sense,” but “it is not price fixing in the antitrust sense.” Id.

It’s still quote heavy, but the author never gives up his voice to his quotes. He both creates a connection with his reader and uses quoted voices to add to his own credibility. 

A few simple techniques will help you be a better narrator, even when you’re quoting.

First: Quote only when you have a reason—you can often say it better.

There are plenty of reasons to quote, and if you can articulate one of them, then go for it. But please, for the sake of your readers, have a reason before dropping quotes on them. Random quoting is not helping anyone. 

Some common reasons include:

The quoted person’s voice—not just the substance of what they are talking about—is helpful to you. When we’re talking caselaw, that means a particular judge in a particular court might be persuasive to your audience—so you want their voice to join yours. But don’t think that all judges’ voices are equally persuasive. The judge and court's identity will matter as will the style of the quote itself.

That said, if you truly believe that someone's voice will help bolster yours, you probably want to tell your reader who you're quoting so you get the benefits. If you don't make it obvious, don't expect your reader to pick up on a court name in a citation.

These sorts of quotes are most helpful when a credible source has unusually strong language for your position. Take this quote from a motion for summary judgment:

As before, this court should agree with the Ninth Circuit that the public trust is "inalienable"—part and parcel of the state’s job of being a state. 

Or this one, where the identity of the speaker adds some credibility:

The New York Attorney General defends the state’s law as one that “falls squarely within the heartland” of straightforward “economic regulation.”

You want to let the facts speak for themselves, and that includes important conversations. Perhaps you want your reader to understand the tone or language someone used. Take this example from a Susman Godfrey brief before the U.S. Supreme Court:

Martinez-Agüero asked to speak to someone in authority, but González said he was the authority "!Yo soy la autoridad!

You’re analyzing the words used in the quoted material. When you’re parsing statutory or regulatory material, for example, quoting makes sense. When you’re arguing about whether the words the defendant used are offensive enough to be defamatory—by all means, quote.

Sometimes you want to define a term of art (although, if it’s become common usage, you don't need the quotes). This is more common when it’s a factual term of art—like industry-speak.

Initially, cash withdrawals from a foreign ATM involved up to four separate fees. The cardholder might pay a “foreign fee” to her bank (called the “issuing bank”). Id. at 129a. The issuing bank, in turn, would pay a “switch fee” to the network that processed the transaction, and an interchange fee” that would ultimately be received by the ATM’s operator.

Occasionally, you will truly not be able to come up with a better way to say something than a quote you found. If you’re working hard to improve your writing, I doubt this will happen often. But still, it happens. We have some wordsmiths in courts across the country, and judges sometimes do capture points so perfectly that they're worth stealing. 

In the end, I’m not worried as much about encouraging you to quote, because most of us already do it too much. The bigger takeaway is that you can usually convey ideas clearer and more persuasively than others. So don't just quote to quote. Rather than writing like this:

That court stated: “Fraud claims are malum in se and the most deplorable and atrocious of torts given they include requisite elements of falsity and reliance.” Illiam v. Shack, 522 F.2d 155 (3rd Cir. 2000).

You can often write better, like this:

Fraud is the worst of torts: the defendant must lie to a victim knowing she will rely on that lie.

Second, use your own sentence structure and sprinkle quotes within them—unless you truly want your reader to hear the voice of the source without you interfering.

By maintaining your own sentence structure, you keep your voice. Simple as that. Often all you really want is a pithy quoted word or phrase to make your points, like this passage in a SCOTUS brief:

All states allow such dual pricing. But a New York statute . . . seeks to control how merchants may communicate the price difference to consumers: It allows merchants to offer “discounts” to those who pay in cash, but makes it a crime to impose equivalent “surcharges” on those who pay by credit card.

Sometimes you want more of your source’s voice to come through, but still, keep in control if you can. Check out how this lawyer maintains control amid a sea of quotes in a SCOTUS brief: 

Of course, “[n]ot every instance of cooperation between two people” constitutes concerted action within the scope of Section 1. Rather, courts must undertake a “functional” analysis of “how the parties involved in the alleged anticompetitive conduct actually operate.” Where “separate economic actors pursuing separate economic interests” agree to limit competition among themselves, their conduct is “concerted” and subject to Section 1.

You can maintain your voice even when you are quoting an entire sentence, like in this Susman Godfrey brief: 

The entry-fiction doctrine derives from the recognition that the political branches of government are more appropriately suited to function as gatekeeper of the nation’s borders, and thus, “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”

Third, lead your reader into—and out of—quotes.

Don’t just drop readers into the middle of a quote without a parachute. Give your readers a clear understanding of where the quote is going. This does wonders for maintaining your voice. So not:

The case states in pertinent part…

But instead these examples from some trial-court motions:

The Park court explained that leaving out allegations about the fraud itself dooms the complaint under Rule 8: “without the fraud allegations, the claim must be dismissed entirely."

Or

Indeed, as the court there explained, contracts need not be signed by both parties to be enforceable:

Or:

Because the plaintiff had not proved damages beyond those for breach of contract, the court held that the tort claim should have been dismissed:

Fourth, don’t block quote much. Please. Many readers just skip them.

When readers come upon one of these gargantuans, many feel a powerful desire to turn their eyes away. For me, it’s almost physical. But if you must block quote (and I suppose there may be times where it’s really needed—like when quoting statutory text, longer dialogues from the record, or some other pivotal language), at least give your reader enough of a preview of the blockquote so that they can skip it if they want to.

If nothing else, this introduction will make it less scary for readers to dive into the block-quote abyss: 

The court drew a line between claims about public trust, which can be brought in federal court, and claims about private nuisance claims, which cannot:

[Block quote explaining this same point—on principle, I’m not actually inserting the block quote!]

Finally, a couple other notes about quoting.

Emphasis quotes are not a thing. We can’t air-quote in writing. Your argument does not become more persuasive because the other party "blatantly" ignored its obligations. 

Don't quote common phrases or adages. Like: These are the times that try men’s souls. They don't need quotes anymore. As I mentioned above, same goes for common legal terms of art. 

Don’t use any other scare quotes. Scare quotes loosely refers to using quotation marks around words or phrases that you think are slang or nonstandard—or when you’re being sarcastic or offensive. Greil Marcus points out that scare quotes just make us look unsure about our own writing: 

Scare quotes kill narrative. They kill story-telling. And it’s not a question of parsing, examining, analyzing, laying bare sacred texts. They are a writer’s assault on his or her own words.

Jonathan Chair rightly suggests that they're even more useless because it's often not clear what they mean: 

The scare quote is the perfect device for making an insinuation without proving it, or even necessarily making clear what you’re insinuating.

So don’t do what this attorney did:

Opposing counsel contends that his client has a “case,” but that is patently false.  

No one is going to find this sort of thing persuasive.

Defined terms rarely need quotes. For that matter, defined terms are usually not needed. If your reader will plainly understand what a shorthand refers to—what is the point of a special defined term? We aren’t writing contracts here. And if you really do need a defined term, the parenthesis alone is probably enough, right?

Hoffman Incorporated filed this suit two days ago. Hoffman knew it was late when it filed.

The Trenshion Bank (Bank) knew what it was doing.

A final public service announcement: Commas and periods go within quotes (at least in the U.S.). So: 

The court explained that the theft of several grocery bags was indeed actionable because, "bags are not free here." 

Joe Regalia teaches at Loyola University School of Law and practices law in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

https://lawprofessors.typepad.com/appellate_advocacy/2018/09/quotation-marks-are-if-i-may-say-so-the-most-misused-punctuation-mark-in-the-english-language-well-perhaps-not-e.html

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