Wednesday, October 20, 2021
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.
- 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.
- 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 .
- 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.
- 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.
- 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.
- 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.