Appellate Advocacy Blog

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

Wednesday, October 20, 2021

Counterpoint: Use (cleaned up) or something like it

The (cleaned up) debate continues apace. Tessa has articulated well one side of the debate, so I thought I'd quickly respond to her points.

  1. Judges can do it, just not attorneys. Let's recall that it was an appellate attorney--Jack Metzler--who came up with it. So if only judges are free to do this sort of innovation, then there will be less--if any--helpful innovation in citations. I started using it a few years ago after a member of our court of appeals used it in an opinion. I see innovations like this being a two-sided conversation with the bench. Of course, you have to know your bench--if it's going to irk the judge(s) you appear in front of, then using it is not worth the distraction that could detract from your arguments.
  2. The citations matter. I wholeheartedly agree that citations belong in the body, not footnotes, because the legal reader wants to know at a glance the authority supporting your assertions. But (cleaned up) doesn't have to sacrifice that. Sometimes the source of a quote is important, sometimes not. If it is, cite to the original case--no need to clean up. If it's a fairly mundane proposition, but you like the quote, then use it and clean it up. If the line of authority is important, then don't use (cleaned up) that time .
  3. It's too informal. I know a number of attorneys who think that (cleaned up) sounds too informal for a court document. Some members of our court of appeals apparently feel this way, but it doesn't stop them in principle--they just use (quotation simplified) instead.
  4. It means more trouble for the court and clerks to look up authority. No judge is going to just take an attorney's word for what a case says, regardless of the parenthetical--they and their clerks will be reading the cases anyway.
  5. It's deceptive. Whether something is deceptive depends on the user. Just because I can quote Exodus 20:14 as "Thou shalt . . . commit adultery" doesn't make use of ellipses inherently deceptive. Like any tool, (cleaned up) should be used with judgment and skill, but it's just that--a tool.
  6. It's overused. I agree that some attorneys can get carried away with it, but again, I don't see that as an argument against using it well. A lot of people drink too much too, but that's not a reason to stop everyone else from drinking. Those attorneys have issues that go beyond their use of a citation signal.

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Comments

Blasphemy!!! Great thoughts John. I think that my biggest beef is with your first point. I don't think that we need innovation in citation beyond discussing how to cite new types of authority. I just see the role of judges and attorneys with respect to citation as very different. But, thanks for your post. I am all in favor of heated citation discussion on this blog!

Posted by: Tessa | Oct 20, 2021 1:24:56 PM

And as a practitioner, I don't think that a bunch of law students at a handful of schools should forever set in stone how we cite things.

Posted by: John | Oct 21, 2021 7:24:10 AM

No disagreement from me there. I find the Bluebook to be hard to use at times. But, I don't trust most lawyers or law students to use cleaned up properly.

Posted by: Tessa | Oct 22, 2021 2:50:12 PM

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