THE SCRIVENER Dear Scrivener by Scott Moïse

THE SCRIVENER Dear Scrivener By Scott Moïse

Three years have passed since the retire to the fainting couch! Just particular claim]’ before the last “Dear Scrivener,” my personal kidding. We already knew that the court.” Id. at 501–02 (alterations legal writing and grammar advice Supreme Court has its own citation in original) (citing Restatement column, and the Scrivener mail rules, which frequently conflict § 19, Comment a, at 161). bag and inbox are over capacity. with the Bluebook. However, I won- Actually, these days most questions der if this new citation form may For me, making those changes is come in by telephone or somebody have gone too far. just fun and makes the passage showing up at my office door—and To understand what happened, more accurate in that the actual none of them calling me “dear”— we need to look at the original alterations are shown. Also, know- but a question is a question, and quotes that Justice Thomas including that the Restatement was the I will give you some of my recent ed in his opinion from Semtek Inter- source for the original quotation favorites. national Inc. v. Lockheed Martin Corp., may help the reader. Otherwise, 531 U.S. 497, 501–02 (2001): Justice Thomas’s method was Dear Scrivener: I’m a Bluebook fine and gets rid of the brackets. nerd, and I saw that Justice Clar- The original connotation of an Moreover, Justice Thomas had ence Thomas made up a new “on the merits” adjudication legal precedent because “cleaned citation rule that is not in the is one that actually “pass[es] up” has been used by some courts Bluebook! He just made it up! See directly on the substance of [a since at least 2017. See, e.g., United Brownback v. King, 141 S. Ct. 740, particular] claim” before the States v. Reyes, 866 F.3d 316, 321 (5th 748 (2021) (making up a new ex- court. Restatement § 19, Com- Cir. 2017). What I take issue with, planatory phrase). ment a, at 161. though, are the words “cleaned up” What do you think? because the original quotation was --Chelsea E. In Brownback this is how Justice not dirty or incorrect, as that label Thomas handled the quotations: implies. Instead, I would use anoth- ANSWER: er term, such as “quotations altered For some background for read- Under that doctrine as it ex- from original” or something that ers who have not heard, Justice isted in 1946, a judgment is the smart students on the Blue- Thomas likely was tired of going “on the merits” if the underly- book editorial board can debate through the grammatical contor- ing decision “actually passes and decide. But I personally will not tions the Bluebook requires when directly on the substance of use “cleaned up” unless ordered by making changes to statements we a particular claim before the a court of law to do so. are quoting: rules requiring brack- court.” Id., at 501–502, 121 S. Ct. ets, ellipses, quotation marks, and 1021 (cleaned up). Dear Scrivener: Should one space altered capital letters. I understand or two spaces be placed at the end the frustration. It takes time, and if Brownback, 141 S. Ct. at 748. of sentences? a lot of changes are made, the sen- If Justice Thomas had followed --Eric S. tence is barely readable. So, Justice the Bluebook and Gregg’s Reference Thomas did something about it in Manual, the citation would have ANSWER: Brownback. He quoted another case been as follows: Although I answered a similar on the issue of res judicata and did question several years ago here, not show where he made the al- Under that doctrine as it exist- this is the most frequently asked terations! Instead, he simply added ed in 1946, a judgment is “ ‘on question I get when speaking to a parenthetical at the end of the the merits’ ” if the underlying groups about legal writing and case citation that said, and I quote, decision “actually ‘pass[es] grammar, so I want to answer it “cleaned up.” Excuse me while I directly on the substance of [a again. People in my seminars have

60 SC Lawyer gotten into yelling matches over As one blog writer, put it, “Nothing said, “You’ll have to pry that second this issue. I am not kidding. says over 40 like two spaces after space out of my cold, dead hands.” Here is my answer: the majority a period!” Jennifer Gonzalez, www. (But never say never. Robert came of grammar style books agree that cultofpedagogy.com/two-spaces-af- back to me on this about a year one space at the end of sentences ter-period/ (Aug. 12, 2014). later and sheepishly admitted that is correct. This includes the Asso- For many of us who decided he is now in the one-space camp, ciated Press Stylebook (which is not to make the change, adding two having been shamed out of it by his surprising because the AP is always spaces at the end of a sentence had associates and young partners.) looking for ways to reduce space); become second nature. Although I The Gregg Reference Manual (my go- am making progress on this front, Dear Scrivener: My friend and I to grammar book); and The Chicago that extra space creeps in with- have a bet on this. Do you have to Manual of Style among others. out my realizing that I have added put a space between a single quo- Additionally, legal writing ex- it. But you can check your docu- tation mark and double quotation perts like Bryan Garner overwhelm- ment for the errant second space mark that are next to each other? ingly call for one space. See The Red- by using the “search and replace” Here’s an example: book: A Manual on Legal Style. Also, option in Word. In the “Find what” author Matthew Butterick does not tab, type a period, followed by two The district court ruled for quibble: “Some topics in this book spaces (made with your space bar). Ainsley’s client, stating that will offer you two choices. Not this In the “Replace with” tab, type a “under Willcox v. Stroup, the one. Always put exactly one space period, followed by one space with Court is bound by the truism between sentences.” Typography the space bar. If your document that ‘possession is nine-tenths for Lawyers (2d ed.) (emphasis in has other punctuation marks at of the law.’” original) (found at https://typogra- the end of sentences, like question phyforlawyers.com/one-space-be- marks, repeat the process with Dinner at Hall’s is riding on this bet. tween-sentences.html). Even some those marks. It works. --Donna L-J courts, such as the Seventh Circuit Despite the modern trend and Court of Appeals, require using just the rule books, some people do not ANSWER: one space. care and will flatly tell you that Spaces have become a hot topic Beyond the rules, using two they are not going to change. As all of a sudden. The Gregg Reference spaces is just not cool anymore. my partner Robert Brunson once Manual requires spaces between

May 2021 61 the two quotation marks, so the as Madam President (no “e” unless judges. Because court opinions are end of your sentence would be you are speaking French). the law that we must follow, and this: ‘possession is nine-tenths of because these cases will be read for the law.’ ” The reason for this rule Dear Scrivener: I know this is an years to come, including popular is that the space keeps the quota- odd question, but what is a “pol- culture in the opinions can cause tion marks distinct when writing lyanna”? During research, I came consternation after the referenced a quotation within a quotation. across this in a 1980 New York culture is no longer popular. My legal writing heroine Grammar case: “[I]t would have been pure Girl agrees with this rule, but she pollyanna to presume that the nec- Dear Scrivener: advocates usage of a “thin space” essary safety information would In a brief, should I preempt ar- between the two quotation marks. filter down to those who had to guments that I expect the oppos- See Mignon Fogarty, Single Quotation work on the machine.” Is this a ing party to raise by first raising Marks Versus Double Quotation Marks, New York thing like “yous guys”? the issue myself and explaining Quick and Dirty Tips (Nov. 15, --Michael S. why that argument is inapplicable 2019), www.quickanddirtytips.com/ or incorrect? Or should I wait for education/grammar/single-quo- ANSWER: the other side to raise the argu- tation-marks-versus-double-quo- This not just a New York ex- ment first, hoping that they might tation-marks. She defines a “thin pression. The judge was referring overlook it? space” as being “just what it sounds to a fictional character, Pollyanna --Michael S. like: a space that’s thinner than a Whittier, in a book series written regular space.” by Eleanor H. Porter that was first ANSWER: “Thin spaces” would be wonder- published in 1913. The book Polly- The answer to this depends on ful, but getting a thin space is not anna was later adapted into seven several factors. easy. Here is how: Highlight the two movies, a play, and a TV show. Hay- First, if there is a case in the quotation marks and press “Ctrl + ley Mills even won an Oscar for her controlling jurisdiction that is D.” That brings up the “font dia- Pollyanna movie. directly adverse to your client’s logue” box. Click on the down-ar- But that does not answer your position, Rule 3.3 of South Caroli- row of the “spacing” box and click question. Pollyanna was a twelve- na Rules of Professional Conduct on “expanded.” Then click on “OK.” year-old orphan, who was always, requires you to disclose that case There you have your thin space. and I mean always, cheerful and to the court if the opposing lawyer Victory! But then the next sentence upbeat despite having had a hard has not done so. That is non-ne- you type is now still in “expand- life. She had a “glad game” in which gotiable. In that case, disclose the ed” mode, so go back through that she looked to find good in every bad case up front—do not wait for the process with the new sentence and situation. For example, one Christ- other side to raise it—and explain change spacing back to “normal.” mas, Pollyanna was hoping for a why the case is distinguishable or Hopefully, you will not need many doll from the missionaries, but all wrongly decided. thin spaces in your document, or she got was a pair of crutches, and Unless there are adverse cases you can just use normal spacing she was not lame. Did that send that are directly on point in your between the two quotation marks. Pollyanna running in a vale of tears jurisdiction, the comments to Rule Also, remember to use “smart” to her cold attic room? No! She was 3.3 clarify that lawyers are not ex- (a.k.a. “curly”) quotation marks and just glad that she was strong and pected to make an “impartial expo- not straight quotation marks. As did not need the crutches. sition of the law” or a take neutral with using two spaces at the end “Pollyanna” then became and disinterested position. There- of a sentence, straight marks are a noun (better than an Oscar), fore, determine if you will have unnecessary unless you are using meaning “a person who believes the chance to make a reply to the a typewriter, and they are just as that good things are more likely to adverse party’s opposition and then uncool. happen than bad things, even when decide whether you want to raise this is very unlikely” (Cambridge) or the opposing party’s argument first. Dear Scrivener: We have a new “an excessively or persistently op- In South Carolina state circuit president of our local Bar associ- timistic person” (Collins). The New court, lawyers are not required ation. We address a man as “Mr. York judge seems to have invented to submit supporting or opposing President” if he is president of an the term “pure pollyanna” to mean briefs. They can submit the brief organization. What is the correct “a state of unfounded optimism.” as late as at the hearing—or never term for addressing a woman who Through an unscientific poll of file one. Although this practice sets has that role? Ms. President? Ma- lawyers of a range of ages, the only up motion by ambush and deprives dame President? ones I could find who knew the judges of valuable research and in- --Andrew C. term “Pollyanna” were members of sight from each party, lawyers must the baby boomer generation. The assume that they will not have ANSWER: younger ones had no idea, which a chance to reply in a filed docu- A woman should be addressed raises a legal writing lesson for ment, so raising and disposing of

62 SC Lawyer adverse arguments in the opening brief will protect the record. If you are blind-sided by an unexpected argument at oral arguments, ask the court for permission to submit a supplemental brief, which is usu- ally allowed but is not guaranteed. In federal court, South Caroli- na district court Local Rules 7.04 through 7.06 require supporting and opposing briefs for all motions other than for motions to compel and those made in a hearing or tri- al. Relative to your question, Local Rule 7.07 discourages, but allows, reply briefs, which are limited to replying to matters initially raised in the opposing party’s response. Therefore, if you are the moving party, waiting for the other side to first raise opposing arguments is less risky than in state court. For the opposing party, the rules do not explicitly allow sur-replies, so you will have to make a motion for leave to do so, a decision that is dis- cretionary with the court. Note, too, that despite Local Rule 7.07, some judges have not waited for replies before ruling. Also, oral arguments are not as prevalent in federal court, so you may not have the opportunity to clean up the record outside of your filed briefs. Additionally, whether in state or federal court, the judges them- selves may raise issues that are un- helpful to your case, and you will want to ensure that your position is in the record. The bottom line is that no one answer works for all cases. Base your decision on the facts, law, and lawyers in your cases and make an educated decision on when and if to address opposing arguments, always keeping in mind your duty of candor to the court and opposing counsel.

As always, I love getting questions. Keep those cards and letters coming!

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