Monday, October 18, 2021
Unpopular opinion--Lawyers should not use (cleaned up) citations in their briefs.
Two years ago Charles Oldfield blogged on this very blog about (cleaned up) citations. As Charlie explained it, in legal writing we often "alter or omit inconsequential parts of the quotation to make the quotation more readable." All of those alterations and omissions can make a quote difficult to read between the ellipses, the [sic], and the brackets. The solution, as proposed by Jack Metzler of @SCOTUSPlaces, is to omit these changes and use a parenthetical (cleaned up) to signal to our readers that we have not indicated those changes.
Metzler published an essay in The Journal of Appellate Practice and Process on (cleaned up) citations a few years ago. Apparently, Bryan Garner has endorsed the practice too--but he also supports the dreaded practice of footnoting citations. The most prominent (cleaned up) user is Justice Thomas, who included it in a February 25 opinion. According to information that Metzler gave the ABA Journal in March 2021, (cleaned up) has appeared in 5000 judicial opinions.
So, now for my unpopular opinion--Judges can use (cleaned up) all they want. But attorneys should not unless the court rules expressly allow for it.
I have no issue with Justice Thomas or any other judge using (cleaned up). I consider that a benefit of being on the bench. The truth is that judicial opinions are rarely models of exemplary citation form. And, to be honest, they don't have to be. If the briefing was done well, there shouldn't be many sources in the opinion that come as a surprise to the advocates. Attorneys, on the other hand, write to inform the court about the issues and the law. Citations and explanations of caselaw are a key part of that responsibility. Perhaps one of the best explanations of the role of citations that I have read came from Eugene Volokh. He wrote:
I remember asking a federal appellate judge once why courts don't shift more to the citations-in-footnotes style, which I had thought looked cleaner and made it easier to follow the flow of the argument. He laughed, and said something like, "You view citations to authority as support for the argument. I view them as often the most important part of the argument."
If judges do view citations and quotations to caselaw as "the most important part of the argument," then they might be wary of efforts to clean those sources up. As I explained in this blog post, one of judges' most common complaints about briefs is that attorneys misstate the law and record. That post, in fact, discussed a Ninth Circuit opinion where the court chastised attorneys for misrepresenting precedent by altering quotations from cases.
If I were a judge, a brief full of (cleaned up) citations would just annoy me (and my clerks), since we would have to carefully check each cite. Sure, one would hope that the opposing party would help out, but you never know. And, while I am aware that misrepresenting quotations isn't the spirit of the (cleaned up) citation, I am also aware that regardless of its purpose it would be misused as a citation device.
So, my advice for attorneys (and students) is to avoid (cleaned up) citations for the present. If court rules eventually adopt the practice, then you can use it correctly (and hopefully sparingly).