Tuesday, September 17, 2019
Appellate advocates must write clean, crisp prose that will persuade judges. We constantly strive to improve the readability of our prose. But the conventions of legal writing often interfere with readability. One such convention is how we format and cite quotations from case law, particularly when we alter or omit inconsequential parts of the quotation to make the quotation more readable, or when the material we are quoting is a quotation from an earlier case.
Let’s say that we represent Mr. Smith in his claim that officers used excessive force. In our brief we write:
Officers used excessive force when they arrested Smith.
In evaluating these claims, a court must consider (1) whether “the handcuffs were unreasonably tight, [sic] (2) [whether] the defendants ignored the plaintiff’s pleas that the handcuffs were too tight; and (3) the degree of injury to the wrists.” Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.Supp.2d 459. 468-469 (S.D.N.Y.2008) (emphasis and alteration omitted) (quoting Esmont v. City of N.Y., 371 F.Supp.2d 202, 215 (E.D.N.Y.2005)).
Higginbotham v. City of New York, 105 F. Supp. 3d 369, 377 (S.D.N.Y. 2015).
Does it matter to our argument that the reader know that the Higginbotham court quoted Lynch, a case from another district court, for this standard (or that Lynch quoted another district court case); that the court added the word “whether” to that quote; that it omitted emphasis and alteration; or that the court in Higginbotham mistakenly used a comma after “tight” when the Lynch court had used a semicolon? In most instances, that information does not affect our analysis, so why do we include it if our goal is to write clean, crisp prose? The short answer is that the Bluebook says we should. But one author, Jack Metzler, who tweets as @SCOTUSPlaces, suggests that we omit this superfluous material. He has proposed a new citation parenthetical—(cleaned up) to help make our prose more readable when we quote case law.
In Cleaning Up Citations, 18 J.App. Prac. & Process 142 (2017), https://ssrn.com/abstract=2935374 Metzler discusses the need for, and importance, of accurate quotations and citations. He points out that the citation sentence following a quotation gives readers the information they need to assess the weight of the quoted authority. But, he notes, quotations and citations are in tension with the need for readability. So how can we convey the information the reader needs to assess the weight of authority without interfering with the readability of our brief? Metzler proposes that “legal writers adopt the parenthetical (cleaned up)” to show that in quoting a court’s opinion the writer:
- has removed extraneous, non-substantive material like brackets, quotation marks, ellipses, footnote reference numbers, and internal citations;
- may have changed capitalization without using brackets to indicate that change; and
- affirmatively represents that the alterations were made solely to enhance readability and that the quotation otherwise faithfully reproduces the quoted text.
Id. at 154.
Lawyers, beholden as we are to tradition, might be reluctant to use (cleaned up) but we are in good company if we do. Bryan Garner, an expert on legal writing, has endorsed (cleaned up) https://www.lawprose.org/lawprose-lesson-303-cleaned-up-quotations-and-citations/ and judges across the country have used (cleaned up) in opinions. According to Metzler, as of August 31, 2019, (cleaned up) had been used in 1775 judicial opinions. It has been used by every federal circuit court of appeals except the First, fifty-four United States District Courts, twelve state supreme courts, and ten state intermediate appellate courts.
(Cleaned up) has its critics. Adam Eakman, blogging at Attorney Words, has identified some problems with using (cleaned up). Several examples Eakman gives stem from misuse or misunderstanding of how and when to use this new parenthetical. http://attorneywords.com/cleaned-up/. And, as Eakman points out, it is often better to paraphrase material from a case than to quote it. Eakman believes that (cleaned up) gives writers an “easy out” that will cause lawyers to quote material rather than paraphrasing. While that may be true, given the penchant lawyers have for quoting it’s better to make those quotations more readable. (Cleaned up) does that. We can work on paraphrasing too (and sometimes it takes work to paraphrase well).
So, how does (cleaned up) up work in practice? Let’s clean up the example in our brief for Mr. Smith:
Officers used excessive force when they arrested Smith. “In evaluating these claims, a court must consider (1) whether the handcuffs were unreasonably tight, (2) whether the defendants ignored the plaintiff’s pleas that the handcuffs were too tight; and (3) the degree of injury to the wrists.” Higginbotham v. City of New York, 105 F. Supp. 3d 369, 377 (S.D.N.Y. 2015) (cleaned up).
Our quotation is now easier to read and what was a block quotation (fifty words or more) can now be an in-line quotation. Metzler’s article gives several other examples of how (cleaned up) can help improve the readability of legal writing, something we should always try to do.