The Journal of Appellate Practice and Process

Volume 18 Issue 2 Article 3

2017

Cleaning Up Quotations

Jack Metzler

Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess

Part of the Legal Writing and Research Commons

Recommended Citation Jack Metzler, Cleaning Up Quotations, 18 J. APP. PRAC. & PROCESS 143 (2017). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol18/iss2/3

This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. 40357-aap_18-2 Sheet No. 18 Side A 06/11/2018 08:46:58 Of 2 And 1 (showing (showing I propose a new I propose a see id. UOTE Q Vol. 18, No. 2 (Fall 2017) (Fall 2017) No. 2 Vol. 18, HAT . 165, 176 (1889). (1889). 176 . 165, T EV ROCESS P .L.R . 857, 859 (1911). (1911). 859 857, . M UOTES EV :Q , 23 A , 23 .L.R M Jack Metzler, @SCOTUSPlaces, Jack Metzler, @SCOTUSPlaces, RACTICE AND P See , 45 A , 45 ) 6/4/2018 3:14 PM ELETE D PPELLATE NTRODUCTION OT A N O I. I 1(D (Mar. 15, 2017, 8:57 PM), https://twitter.com/SCOTUSPlaces/status/8422 (Mar. 15, 2017, ESEND OURNAL OF R The Use and Value of Authorities The Value of Precedent Value The J Judges and lawyers use a lot of quotations in their writing. use a lot of quotations in their Judges and lawyers that they It assures readers has a purpose. All this quoting HE 2.Miller Justice advised the advocate preparing a brief to “give one or two extracts in 1. doctrine “[T]he of of Case-law, in the application precedents to the trial of questions T ETZLER the precise terms of the opinion of the court as to the point under discussion.” Samuel F. discussion.” Samuel point under the court as to the of the precise terms of the opinion Miller, *This essay began as a tweet. *This essay began It’s not hard to understand why: our common-law tradition understand why: our common-law It’s not hard to the past. on what courts have said in places great value quote it? what a court said than to how better to show we necessarily about “what a court said” talk course, when we best So it often turns out that the what a judge wrote. mean has quoted proposition is one in which a judge quotation for a Not only that, there’s a pretty good chance other judge. some still another judge. You see that second judge was quoting where this is going. say-so because the author’s on the to rely solely don’t have by a court, and in so many proposition has already been adopted CLEANING UP QUOTATIONS* UP QUOTATIONS* CLEANING Jack Metzler** M parenthetical for quotes that delete all messy quotation marks, brackets, ellipses, etc.: ellipses, etc.: parenthetical for quotes that delete all messy quotation marks, brackets, up) (cleaned court quoted opinion in which the inspired by a judicial That tweet was 23292752760832. in a distracting mess earlier-still decision, resulting an of an earlier decision which quoted point that the court that obscured the brackets, ellipses, and parenthetical indications intended to make by quoting the earlier authority. Twitter—or at least the community endorsed the idea, known as #AppellateTwitter—enthusiastically responses, likes, and retweets), which led first to a quick justification for responses, likes, and retweets), which led first the idea and more formal proposal. eventually to this Stafford for to Blake comments on an earlier draft and to Thanks **@SCOTUSPlaces. of this project. Twitter for its continuing support #Appellate American legal procedure.” Shackelford importance in English and of law, is of paramount Miller, 40357-aap_18-2 Sheet No. 18 Side A 06/11/2018 08:46:58 A 06/11/2018 18 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 18 Side B 06/11/2018 08:46:58 , : See EGAL This OURTS note 1, note 6, note ARNER 6 ROCESS C P A. G supra supra , , 66 J., 66 L EDERAL F RYAN ARNER HE &B &G ,T RACTICE ANDRACTICE at 134. For a compelling a compelling For 134. at P Id. CALIA CALIA OSNER S 133–34 (2012). 133–34 (2012). 7 S A. P See note 4, at 8–15. 8–15. 4, at note UDGES UDGES PPELLATE J NTONIN A supra A 5, 7 (UNC School of Law, Working Paper (UNC School of Law, 5, 7 ICHARD ICHARD http://scholarship.law.unc.edu/working_papers/1/; http://scholarship.law.unc.edu/working_papers/1/; see also ERSUADING P OURNAL OF OURNAL J ) 6/4/2018 3:14 PM RT OF note 2, at 167). 167). 2, at note Citation Literacy A HE available at available 241 (1996). (1996). 241 ELETE HE D supra note 4, at 684. Other information note 4, at 684. in the citation also affects the :T OT EFORM N note 4, at 10; note note 4, at 7 (acknowledging that citation “addresses the need in a in a “addresses the need that citation 7 (acknowledging 4, at note The Worst System of Citation Except for All the Others The Worst System of Citation Except for All R O ASE Each quote (and its citation) has the potential to its citation) has the potential Each quote (and supra C 8 1(D supra supra Adept legal readers incorporate this metadata into their their into metadata this incorporate readers Adept legal note 4, at 5. 4, at 5. note The reader learns which court (sometimes also which also which court (sometimes learns which The reader 5 OUR An important part of that assurance comes from the from comes that assurance of part important An 4 3 Alexa Z. Chew, Alexa Z. Y ESEND R supra These benefits are in tension, however, with the need for tension, however, with the need are in These benefits See . 668, 683 (2017). (2017). 683 . 668, 4. 6. Chew, 7.use advocates’ face in evaluating dilemma that judges captured the has Judge Posner 3.as precedents consists in the fact “The main value of former decisions that they are 8. Chew, 5. See Ziff, AKING ETZLER HALLENGE AND DUC David J. S. Ziff, (Draft), July 25, 2017), of authorities: “at the same time that they rely heavily on lawyers, judgesthat they rely heavily on lawyers, of authorities: “at the same time do not trust R much.” lawyers completely, or even very the judgments of a court of competent jurisdiction andthe judgments of a court of competent jurisdiction respectability.” Miller, at 861 (quoting Miller, at 861 (quoting common law system to show the provenances of statements of law and balances that need common law system to show the provenances of recommends that allGarner with the competing one of brevity”). Bryan citations be relegated to footnotes to avoid distracting the reader. M at 132–33. Justice Scalia disagreed, arguing that “the careful lawyer wants to know, while “the careful lawyer wants to know, at 132–33. Justice Scalia disagreed, arguing that say.” you reading along, what the authority is for what weight of the authority, such as whether the quotation is from a concurring or dissenting or dissenting a concurring whether the quotation is from such as weight of the authority, subsequent history of the case. the decision was published, or the opinion, whether Chew, C E citation that follows the quote, which communicates information information quote, which communicates that follows the citation the authority of the weight can assess reader which the from quoted. readability. of reasoning. The the author’s line distract the reader from a when a writer cites authority without potential is greater than usually is not what a court said in the past quotation because 144T words. in to find the opinion it, how court said it, when the judge) said quote on which the and the very page court said it, which the appears. it to their read along, comparing they understanding as between various courts and the relationships knowledge about proposition. or less weight to the quoted give more to them M the legal benefits the writer by advancing process, which also benefits with the reader, credibility and building argument and the quotation usually learns enough from the reader, who looking the case up. the citation to avoid argument favoring inline citations, see Chew, see Chew, argument favoring inline citations, 40357-aap_18-2 Sheet No. 18 Side B 06/11/2018 08:46:58 B 06/11/2018 18 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 19 Side A 06/11/2018 08:46:58 83–85, 85–86, rules work Whenthat 9 ITATION C Bluebook remains the standard for legal YSTEM OF S The Bluebook NIFORM ,AU 145 ) 6/4/2018 3:14 PM note 4, at 669 (“ 11 LUEBOOK B ELETE , which has detailed rules (explored below) for , which has detailed rules (explored D HE supra OT UOTATIONS T N Q O That a quote has been altered, and how, is That a quote has been altered, the immediate source of the quote; source the immediate from an came which part or parts of the quote earlier authority; P , Ziff, 10 1(D U x x see also Bluebook what a legal writer wants to say later. to say wants writer a legal what ESEND R See, e.g. But when the first author to use a quote is a judge and the But when the first author to use How the sources changes to quotations and cite to indicate author wants to quote what that judge said, the rules require author wants to quote what that 11. the second author overall, counting from The first author to use a quote is actually 9. Unfortunately, most judges seem to be focused before them on deciding the cases 10. LEANING LEANING ETZLER 107–08 (Columbia Law Review Association et al. eds., 20th ed. 2015) (including Rules 5.2 (including 2015) eds., 20th ed. et al. Association Review Law 107–08 (Columbia 10.6 and (“Omissions”), Within Quotations”), 5.3 (“Alterations and Quotations Cases”)). (“Parenthetical Information Regarding passage. quoted of the the original author citation.”); rather than on crafting pithy statements of law, free from references to the parties, theirfrom references of law, free pithy statements crafting rather than on for future convenient be would then which facts in the case, arguments, or specific their of that is kind other hand, On the alterations. without to quote judges advocates and job. next reader— author tell the that the second happens, writers alter the quote—maybe they change the verb they change quote—maybe writers alter the happens, must then they word or two—but they drop a tense; maybe or in a itself within the quotation those changes indicate the increases each change the citation. Yet to parenthetical before moving reader must navigate that the of metadata amount multiplies when potential to distract sentence. The on to the next A passage writer. quoted by a subsequent is the altered quotation and ellipses, brackets, cluttered with become can quickly reader’s eyes and attention, that distract the quotation marks mess an unwieldy becomes its citation time while at the same that tests information case cites and parenthetical packed with that the author was the point ability to remember the reader’s place. in the first using the quotation by trying to make legal writers Most is not the problem. quotations of embedded use the quotations. for the reader. The information important how an author has changed a fairly well to tell the reader distraction—for the too much quotation, and they do so without first author anyway. C exactly M 40357-aap_18-2 Sheet No. 19 Side A 06/11/2018 08:46:58 A 06/11/2018 19 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 19 Side B 06/11/2018 08:46:58 , 14 : but The 13 12 ROCESS s] Trinity ’ LUEBOOK P Sherbert v. n. 11. RACTICE ANDRACTICE McDaniel v. Paty McDaniel P See supra 15 PPELLATE A 16 : form and find different form to get ways OURNAL OF OURNAL J ) 6/4/2018 3:14 PM HE ELETE Bluebook D OT N O any alterations that the immediate source made to to source made the immediate that alterations any quote; and the embedded to makes current author that the any alterations quote. or the embedded quote immediate either the , 374 U.S. 398, 406 (1963). , 374 U.S. 398, has rules for “quotations within quotations” too has rules for “quotations 1(D x x at 626. at 626. ESEND R Id. [To] condition the availability of benefits [including access upon this appellant’s willingness to violate a to the ballot] cardinal principle of religious faith [by surrendering [his] hisreligiously effectively penalizes the ministry] impelled constitutional liberties.” free exercise of [his] Verner In this way,said Chief Justice Burger, the Tennessee law “effectivelypenalizes the free exercise of [McDaniel That extra baggage is the problem. It takes very few is the problem. It takes That extra baggage note 10, at 84, 108. 84, 108. 10, at note 14. 618 (1978). 435 U.S. 15. 12. Actually the third and fourth authors, respectively. 16. (2017). 2012 Ct. S. ___, 137 582 U.S. 13. cover 10.6.3 quotations within quotations and and Rule 5.2(e) covers Rules 10.6.2 ETZLER supra And here is Chief Justice Roberts’s quotation in And here is Chief Justice Roberts’s Bluebook of layers deal with the successive to address how it does not rules when a quotation is the that result from source indication requoted by court after court. slightly altered and on will give up legal writers before most successive quotations trying to follow around the strategy is to write A common their points across. words a quotation, either by quoting fewer parts of problematic alterations to avoid the use of distracting prior- or by making is Chief Justice Roberts’s recent quotation baggage. An example opinion written an from quotation of a bracket-ridden passage aby Chief Justice Burger. He used that part of the quotation in appearing bracketed changes contained only one of the five change with one of his own. the original, and then overrode that in as it appears sentence original Here is the Lutheran Church v. Comer 146T M if the second author complicated more of this gets even And all wants to quote. a third author work is also a judge whose how to indicate that the court was “quoting” or “citing” another authority. B “quoting” or “citing” the court was how to indicate that 40357-aap_18-2 Sheet No. 19 Side B 06/11/2018 08:46:58 B 06/11/2018 19 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 20 Side A 06/11/2018 08:46:58 occur —(cleaned —(cleaned Sherbert v.Sherbert Trinity Lutheran Trinity rules applicable to to rules applicable in italics when I’m talking about the Bluebook , at 626 (quoting 626 (quoting , at Id. (cleaned up) (cleaned 147 ) 6/4/2018 3:14 PM ELETE D OT UOTATIONS N 17 Q O P , 374 U.S. 398, 406 (1963); internal quotation marks quotation internal 398, 406 (1963); , 374 U.S. 1(D U at 2020 (quoting McDaniel v. Paty, 435 U.S. 618, 626 (1978)). (1978)). 626 U.S. 618, 435 Paty, v. McDaniel (quoting at 2020 ESEND R Id. —to signal that such material has been removed and that been removed —to signal that such material has constitutional liberties.” liberties.” constitutional Verner omitted). Part II describes the The proposal outlined in this essay gives legal writers the in The proposal outlined Chief Justice Roberts is an adept legal writer, and his writer, and is an adept legal Roberts Chief Justice another opinion, a judge quoting When Often it does not. 18 18. In this essay, I have placed 17. LEANING LEANING ETZLER parenthetical itself rather than showing how to use it in a citation. In practice (as in my examples), it should not be italicized. none of it matters for either understanding the quotation or for either understanding the none of it matters evaluating its weight. all the time, and they needlessly consume judges’ time and and time judges’ consume and they needlessly all the time, and effort, and clients’ money. effort, lawyers’ time like brackets, ellipses, option to drop superfluous material and footnote references from quotation marks, internal citations, new parenthetical their quotations by using a single up) and quotations within quotations, alterations of quotations, the indications required by the quotations. Part III explains how C But another is elegant. change for of one bracketed substitution time really spend extra (or any judge) Chief Justice should the because another to construct a sentence simply working out how too generously?judge used brackets Should clients pay for their ellipses, around or fiddle with brackets, lawyers to write problems? and parentheticals to solve similar quotation marks, any meaningful contain that clutter even And does all information? conventions toshould follow ordinary so that indicate alterations the opinion the earlier authority from readers can distinguish the use of and evaluate the quoting court’s that quotes it the quotation the text of authority. But with that accomplished, or judge wants part of the new opinion. If an advocate becomes of whether all or some to invoke the new decision as authority, and an earlier opinion often doesn’t matter, from the text came new court changed from the earlier opinion matters whatever the quotations, altered quotations, even less. Given the ubiquity of like the legal writing, problems and further altered quotations in in one Chief Justice Roberts encountered M 40357-aap_18-2 Sheet No. 20 Side A 06/11/2018 08:46:58 A 06/11/2018 20 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 20 Side B 06/11/2018 08:46:58 and ROCESS P (cleaned The meat 20 (cleaned up) (cleaned RACTICE ANDRACTICE P ULES R 21 Rule 5.1 describes how to how Rule 5.1 describes 19 PPELLATE A LUEBOOK B HE OURNAL OF OURNAL J ) 6/4/2018 3:14 PM II. T signals the importance of quotations in legal of signals the importance HE to emphasize the principle of law stated in principle of law stated in to emphasize the note 10, at 82–86 (Rule 5: “Quotations”). 5: “Quotations”). (Rule 10, at 82–86 note ELETE D OT supra party N , O This kind of change opens up several ways to use a This kind of change opens up several at 83 (Rule 5.1(b)(i), which applies (as does this essay) toat 83 (Rule 5.1(b)(i), which quotations that are 1(D 22 or Bluebook often fail to convey meaningful information beyond beyond information meaningful convey fail to often at 108 (setting out Rule 10.6.2 (“Quoting/Citing Parentheticals in Case Parentheticals in Case (“Quoting/Citing 10.6.2 (setting out Rule at 108 at 83 (setting out Rule 5.2(a) (“Substitution of letters or words”), Rule 5.2(b) ESEND LUEBOOK R See id. Id. B Id. Rule 5.2 explains how to show that you have added, Rule 5.2 explains how to show The . . Part VI briefly concludes. briefly concludes. . Part VI 20. 21. 19 22. ETZLER not block-quoted). not block-quoted). quotation while retaining the substance of the quoted passage. quotation while retaining the substance lower case letter for a capital letter, a An author might substitute the quote does not appear at the beginning because for example, a substituting or omitting Similarly, sentence. of the author’s or conjugation a verb’s a writer to adjust permits two letter or a new sentence. within tense so that the quote fits grammatically a subsequent a litigant’s name, When a court’s holding includes like term generic with a the name replace author might defendant application to the earlier case. the quote rather than its specific of Rule 5, citation-wise, is found in Rules 5.2 and 5.3, which is found in Rules 5.2 of Rule 5, citation-wise, altered. Whenindicate that a quotation has been describe how to rules work together with these a quotation contains a quotation, a citation that appears to format Rule 10.6, which explains how original source of a quote, the within a parenthetical to identify and where to place that parenthetical. in a or a fixed mistake words; letters; added changed, or omitted quotation. 148T Bluebook no- top-level, Rule 5—a full-blown, devoting by writing rule—to the subject. decimal-point dictate (for purposes important with its most quotations; format be must rule that quotations the simple of this essay) being within and that quotation marks quotation marks enclosed within marks. appear as single quotation the quoted material M Part IV introduces level of quotation. the first to start using convince you it. Part V should how to use up) Citations”) and Rule 10.6.3 (“Order of Parentheticals”)). of Parentheticals”)). (“Order Rule 10.6.3 Citations”) and (“Omission of letters”), and Rule 5.2(c) (“Mistakes in original”)).(“Omission of letters”), and 40357-aap_18-2 Sheet No. 20 Side B 06/11/2018 08:46:58 B 06/11/2018 20 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 21 Side A 06/11/2018 08:46:58 ]” and ]” sic , 861 F.3d , 861 F.3d Bluebook , at Rule 3.3, 3.3, , at Rule FFICE OF THE Id. United States v. United States § 7.4 (Jack Metzler ed., (Jack Metzler 7.4 § Many writers ignore this Many 25 Id. UIDE G Ovalles v. United States 23 TYLE S does not provide guidance about when when about provide guidance not does S ’ ] bomb” as reflecting poorly on the writer ] sic OURT Bluebook C Model Rules of Professional Conduct Model 149 UPREME UPREME S ) 6/7/2018 4:43 PM HE note 10, at 83–84 (setting out Rule 5.2(d) (“Changes to ,T note 10, at 85 (Rule 5.3). 5.3). (Rule 10, at 85 note permits a correction without any indication at all. any indication without correction permits a ELETE D We’re told to use a parenthetical when we’ve told to use a parenthetical when We’re OT supra UOTATIONS supra generally directs authors to indicate these changes these changes indicate to authors directs generally N Guide 26 , , Q O ] is often used as passive-aggressive criticism of the original author. As a ECISIONS P when we’ve added or removed emphasis—(emphasis emphasis—(emphasis when we’ve added or removed D 2(D (Rule 5.2(a)). In the case of mistakes, Rule 5.2(c) says to use “[ says to of mistakes, Rule 5.2(c) (Rule 5.2(a)). In the case sic U The rule explains when an ellipsis is required (and ellipsis is required (and when an The rule explains 27 https://www.americanbar.org/ groups/professional_responsibility/publications/ 24 at 85–86 (Rule 5.3(a)–(b)). The The 5.3(a)–(b)). (Rule at 85–86 ESEND LUEBOOK LUEBOOK , American Bar Association, R Id. See id. Both Rule 5.2 and Rule 5.3 also instruct how to indicate Rule 5.3 also instruct how Both Rule 5.2 and Rule 5.3 covers how to indicate that you have omitted omitted have that you indicate covers how to Rule 5.3 , 865 F.3d 566, 570 (7th Cir. 2017) (Bauer, J.); 566, 570 (7th Cir. 2017) (Bauer, , 865 F.3d Bluebook 26. B 24. B 27. tell the reader never If you’d Many legal writers leave out “internal” as superfluous. 25. 23. LEANING LEANING ETZLER EPORTER OF available at model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal.html. otherwise leave the mistake “as [it] appear[s] appear[s] in theotherwise leave the mistake “as [it] original.” rule because [ result, the reader could view dropping a “[ even if no criticism of the earlier author was intended. Other style guides recognize this. recognize Other style guides even if no criticism of the earlier author was intended. permitsFor example, the Supreme Court’s style guide authors to correct an error with O on the error.” it is desired to place less emphasis brackets “where Brown omitting words is permissible, like “Never use an ellipsis to omit permissible, like ‘not’ and change the omitting “Never use is words attorneys are to exercise professional to its opposite.” Presumably meaning of a quote judgment in light of their obligationdecisions. of candor to the tribunal when making such See, e.g. (“When omitting a footnote or citation”)). citations”) and Rule 5.3(c) that you omitted quotation marks quotedexternal to the material, the qualification that the quotation marks you omitted were internal doesn’t A few recent add anything useful. in found “quotation marks omitted” can be examples of unspecified R rule is simple: when one or more words are omitted, use an use words are omitted, when one or more rule is simple: ellipsis. punctuate and where to place it, and how to when prohibited), is used and depending on how the quotation capitalize the quote the quote. appears within where the omission a brackets or ellipses: use apparent from changes that aren’t parenthetical. a citation—(citation omitted), taken out a footnote—(footnote marks quotation marks—(internal quotation or omitted), omitted); C The in brackets. the new material by putting from a quotation. letters) (other than individual material court from draw specific points helps authors material Omitting appear in sentences, over multiple made they are when opinions by material interrupted are otherwise or sentence, a complex The the author wishes to make. other than the point M 2016). If the error is a misspelling or an obvious typo and has “no relation to the purpose of and has “no relation typo 2016). If the error is a misspelling or an obvious the the quotation,” 40357-aap_18-2 Sheet No. 21 Side A 06/11/2018 08:46:58 A 06/11/2018 21 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 21 Side B 06/11/2018 08:46:58 at ; many ROCESS haven’t P see also id. , Auto-Owners Bluebook dictates the dictates , 859 F.3d 23, 30 30 23, , 859 F.3d Recognizing Recognizing 28 See, e.g. When a case cited When RACTICE ANDRACTICE 33 P Bluebook 30 at 84 (Rule 5.2(d)(iii)). 84 (Rule at Id. Mercifully, the Bluebook Mercifully, 34 PPELLATE A King Soopers, Inc. v. NLRB v. Inc. King Soopers, Each of these, apparently, should appear Each of these, apparently, OURNAL OF OURNAL J 29 ) 6/4/2018 3:14 PM HE note 10, at 86 (Rule 5.3(c)), 83–84 (5.2(d)(i)-(iii)). Emphasis that note 10, at 86 (Rule83–84 5.3(c)), ELETE at 108 (Rule 10.6.2 (“Quoting/Citing Parentheticals in Case 10.6.2 at 108 (Rule D OT supra N , O It advises to cite the original source, “[w]henever original cite the It advises to That citation should appear in yet another should appear in yet another That citation allows the omission of internal quotation marks that of internal marks quotation allows the omission 31 1(D 32 see also id. (giving the example “(alteration in original) (citation omitted)”); 20th edition of the new to the at 84 (Rule 5.2(f)). This rule is at 83–84 (Rule 5.2(d)(i)). (Rule at 83–84 at 84 (Rule 5.2(e) (“Quotations within quotations”)). Whether including the within quotations”)). Whether at 84 (Rule 5.2(e) (“Quotations ; at 108 (Rule 10.6.3). 10.6.3). (Rule at 108 ESEND LUEBOOK R Id. Id. Id. Id. Id. When the quoted material itself includes a quotation, the itself includes a quotation, material When the quoted .Id. 28. B 31. 29. 30 32. 33. 34. ETZLER (D.C. Cir. 2017) (Edwards, J.). J.). (Edwards, (D.C. Cir. 2017) allows that “only one level of recursion is required” when a allows that “only one level of quotes a third case (and so quotation contains a quotation that in a parenthetical requires its own “quoting” parenthetical, “the in a parenthetical requires its own two parentheticals should be nested.” (Hull, J.); and Cir. 2017) (11th 1257, 1264 Bluebook and very end of appear at the very beginning would otherwise the quote. possible.” 5.2 and 5.3 parentheticals, formatted Rule the parenthetical after and including whatever as if the source were cited directly, of its own those rules require. parentheticals 150T we when sometimes and removed); or (emphasis added) apply, the may than one of these that more (2) added); (emphasis appear: (1) which they should order in (4) (emphasis omitted); (3) (citation(s) in original); (alteration and (6) omitted); marks quotation (5) (internal removed); omitted). (footnote(s) is each to be in parenthetical, which within its own sequential of to explain the weight parentheticals required addition to any phrases. or other explanatory the authority M in original). the quotation—(alteration changed 108 (Rule 10.6.3 (Order of Parentheticals)). Parentheticals)). (Order of 108 (Rule 10.6.3 appears in the original does not require a parenthetical. a parenthetical. require does not original appears in the courts appear to have not yet caught up, continuing to use “(internalcourts appear to have not yet caught up, continuing quotation marks omitted)” when they quote language that is entirely a quotation. a Cir. 2018) (quoting 852, 860 (10th Ass’n, 886 F.3d Park Townhome v. Summit Ins. Co. with “(internal 921 (10th Cir. 1992), 916, 965 F.2d Reynolds, v. passage from Erenhaus very at the been have marks would quotation marks omitted)” though the omitted 1058, 1068 (11th Cir. beginning and very end of the quote); Looney v. Moore, 886 F.3d (Ala. 2003)). 566 2d So. 877 Howorth, v. Cain from passage quoting a 2018) (same, except original source is “possible” is left open to interpretation. original source is Citations”). Rule 10.6 describes an array of parentheticals to which it could potentially array of describes an 10.6 Citations”). Rule apply. 40357-aap_18-2 Sheet No. 21 Side B 06/11/2018 08:46:58 B 06/11/2018 21 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 22 Side A 06/11/2018 08:46:58 It also offers It also 36 Although courts often 38 NFORMATION I rules serve an important important serve an rules UCH M 151 OO Bluebook ) 6/4/2018 3:14 PM ELETE III. T D The extra marks thus add visual clutter without The extra marks OT UOTATIONS 37 N Q O P 1(D U (Rule 10.6.2). 10.6.2). (Rule at 84–85 (Rule 5.2(f)(ii)). at 84–85 (Rule (indicating that writers may “not omit multiple levels of nested marks . . . even ESEND Yet it expressly forbids writers from omitting the omitting from writers forbids it expressly Yet R Id. Id. Id. The brackets, ellipses, and other indications required by ellipses, The brackets, The accumulation of redundant or irrelevant information of redundant or irrelevant information The accumulation Although the identifies In fact, the first “quoting” parenthetical—which 35 35. 36. 37. 38. court 2. The which quoted 1, writer quoting court about a As a reminder: This is LEANING LEANING ETZLER quote controlling authority from a higher court, they also a higher court, they from quote controlling authority cases and non-controlling regularly quote their own prior In those instances (absent authorities that they find persuasive. special about the earlier decision), a “quoting” something that the reader does parenthetical gives the reader information of evaluation reader’s the not need because it does not advance of the court that used the the quotation beyond the authority quote. that the reader information Rules 5.2 and 5.3 likewise contain standardization purpose, they often are more trouble than they purpose, they often are more standardization first level of quotation. are worth after the that introduce a quote the quotation marks often starts with of levels of multiple forbids the omission because Rule 5.2 citations omitting it permits even though marks nested quotation than the first “quoting” (other to the corresponding decisions parenthetical). no relief from explaining what happened to any ellipses, to any ellipses, what happened explaining from no relief the alterations in footnotes, citations, omitted omitted brackets, way. along the removed or emphasis added, emphasis original, the evaluate the reader that helps providing any information quotation. which the quoted court was quoting—often the opinion from information. fails to provide any useful C on). that those marks” [quotation] nested levels of “multiple to. would have referred parentheticals “quoting” M though ‘quoting’ parentheticals beyond the first level may be omitted”). first level may be parentheticals beyond the though ‘quoting’ is a citation to court 2 appearing in the writer’s citation to court 1. “quoting” parenthetical Still with me? 40357-aap_18-2 Sheet No. 22 Side A 06/11/2018 08:46:58 A 06/11/2018 22 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 22 Side B 06/11/2018 08:46:58 See This court ROCESS Note: P Windom 40 quoted that language RACTICE ANDRACTICE Madrid Madrid P of the seizure would of the seizure would in note 40 includes the ellipsis and ) and (2) includes “(alterations in . In fact, PPELLATE A Madrid Windom , 863 F.3d at 1329 (alterations in original) (alterations in original) F.3d at 1329 , 863 Madrid court added the ellipsis and brackets to show its at the moment Windom that quote encompasses the court’s that quote encompasses 39 does not expressly permit an author to does not expressly permit Windom OURNAL OF OURNAL Rule 5.2 aside, courts and practitioners Rule 5.2 aside, courts and practitioners J ) 6/4/2018 3:14 PM 42 HE note 10, at 83–84 (Rule 5.2(d)(i)). Lacking the option of Lacking 5.2(d)(i)). at 83–84 (Rule note 10, ELETE D Omitting the clutter also makes the quote much quote much the also makes clutter the Omitting OT supra N Bluebook 41 , O 1(D ESEND LUEBOOK R The unadorned quotation is easier to read without the quotation is easier to read without The unadorned But the 39. up): “In Cir. 2017) (cleaned (10th 1329 F.3d 1322, Windom, 863 United States v. 40. we of officers’ use of force “In evaluating the reasonableness Here is the full quote: 41. with the the version in note 40, which is seventy words, To see this, compare 42. B at 108. For example, the quotation from ETZLER evaluating the reasonableness of officers’ use of force we apply an objective standard, objective standard, of forceofficers’ use an we apply evaluating the reasonableness of at theasking whether the facts available to the officer moment of the seizure would warrant taken was appropriate.” belief that the action the caution in reasonable a man of is foreshadowing. the at ‘facts available to the officer the whether objective standard, asking apply an reasonable caution in the belief that warrant a man of . [would] . . moment of the seizure the action taken was appropriate.’” (quoting United States v. Madrid, 713 F.3d 1251, 1256 (2013)). (2013)). 1256 1251, F.3d 713 v. Madrid, States (quoting United is fifty-one words. which 39, version in note remove brackets and ellipses. Under Rule 5.2, the author should brackets and ellipses. Under Rule 5.2, the author remove in original)” to “(alterations leave those distractions in and add the citation as well. standard even though part of the language was quoted from an part of the language was standard even though earlier case was case, and even though the earlier Tenth Circuit and a bracketed word addition. altered with an ellipsis and its citation and ellipsis, brackets, marks, additional quotation a “quoting” and occupies fewer words without is less distracting parenthetical. to alter so that it fits in a or advocate easier for the next judge old the sort out to be necessary new opinion or brief—it won’t new. the alterations from 152T quoted authority a that to changes applied when not need does A court’s other authority. some the course of quoting in made not in in its opinion, the words it uses is expressed in decision that opinion. also appear in that might and ellipses the brackets officers’ evaluate police says that to the Tenth Circuit So when whether the standard, asking “an objective it applies use of force the officer to facts available M action belief that the in the caution reasonable warrant a man of taken was appropriate,” bracketed change that appeared in the original and its citation both (1) notes that the court and its citation both (1) notes that the court that appeared in the original bracketed change had quoted an earlier Tenth Circuit case ( original).” This suggests that the “(alterations omitted),” Rule 5.2 produces confusing citations when combined with Rule “(alterations omitted),” Rule 5.2 produces “only one level of recursion”which requires when a case quotes another case. 10.6.2, id. changes to language written by the court in from an earlier case; it added one of the two changes (the brackets) and the of the two changes from an earlier case; it added one 40357-aap_18-2 Sheet No. 22 Side B 06/11/2018 08:46:58 B 06/11/2018 22 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 23 Side A 06/11/2018 08:46:58 , 802 F.3d F.3d , 802 Cobell v. Jewell (the putative “original” for (the P Windom U LEANING 153 IV. C ) 6/4/2018 3:14 PM ELETE D OT UOTATIONS N Q to avoid the clutter that quotations gather as they that to avoid the clutter O Those nonstandard parentheticals allow the author allow nonstandard parentheticals Those P But there is a better way. But there is a better way. 1(D 43 U 44 , Clark v. United States, 695 Fed. App’x 378, 381 (10th Cir. 2017) (using 378, States, 695 Fed. App’x United , Clark v. , Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545 (7th Cir. 2017) (Wood, (Wood, 2017) Cir. (7th 545 541, 860 F.3d Inc., Bisco, v. LLC Dental, , Fulton because the alterations actually appeared in the alterations actually appeared because ESEND R E.g. E.g. I propose that all legal writers adopt the parenthetical I propose that all legal writers When forced to choose between placing excessive between placing When forced to choose 44. 43. LEANING LEANING ETZLER (cleaned up) the citation the other (the ellipsis). Although misleading, proper under is added the Bluebook are successively requoted and altered from court opinion to altered from are successively requoted and that accumulates baggage as well as the citation court opinion, both “internal quotation12, 25 (D.C. Cir. 2015) (Millett, J.) (using marks omitted” and “ellipsis omitted”). of Smyrna, “brackets, ellipses, and internal quotation marks omitted”); Mayhew v. Town citations, and quotation marks (using “brackets, 463 (6th Cir. 2017) 856 F.3d 456, (6th Cir. 2017) (using 609, 610, 612 601, 852 F.3d omitted”); In re Inc., Amazon.com, citation omitted,” “citation and brackets omitted,” and quotation marks and “internal and ellipsis omitted”). “citation, brackets, C and quotations from and ellipses brackets remove regularly omitted)” with “(brackets omissions the indicate and “(ellipsis omitted).” by adding but only the quotation clutter from some to remove citation. In addition, associated to the clutter metadata additional include author should suggest that the parentheticals all of these in when “(alteration too. Otherwise, a “quoting” parenthetical original)” original is the reader is left to wonder what appears, and omitted)” with “(brackets to. Signaling being referred same question. But of course raises the the “(ellipsis omitted)” that parentheticals mean first realize that those reader must from something been omitted must have or an ellipsis brackets authority, and other probably was some and that the something these parentheticals of about it. None wonder then the reader can on a quotation that relies or evaluate understand helps the reader own authority. the quoted court’s and lengthy, nonstandard punctuation clutter in their quotations judges often choose citations, in their explanations parenthetical the latter. 10.6.2. Rule under recursion is required level of one only 5.2), and Rule purposes of marks and brackets omitted”); (using “internal quotation C.J.) M 40357-aap_18-2 Sheet No. 23 Side A 06/11/2018 08:46:58 A 06/11/2018 23 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 23 Side B 06/11/2018 08:46:58 ROCESS P , explain how it , explain how it RACTICE ANDRACTICE P indicates that in quoting a in quoting that indicates PPELLATE (cleaned up) A (cleaned up) up) (cleaned could have adopted a Part V, the period during which we When language quoted from a court a court language quoted from When OURNAL OF OURNAL rule that I propose for inclusion in the the in for inclusion rule that I propose J A. The Proposed Rule ) 6/4/2018 3:14 PM seems wellwayto becoming the dominant form. on its seems HE ELETE see infra Using Using D 45 OT N O has removed extraneous, non-substantive material material non-substantive extraneous, has removed ellipses, footnote marks, quotation like brackets, citations; numbers, and internal reference without using changed capitalization have may that change; and brackets to indicate the alterations were represents that affirmatively that the and solely to enhance readability made reproduces the quoted faithfully quotation otherwise text. (cleaned up) (cleaned 1(D (cleaned up) would appear as new Rule 5.4: has spread, x x x ESEND R Cleaning Up Quotations (a) Cleaning up. an earlier decision, quoted from material decision contains the quotation for readability,may, of internal be stripped quotation marks, brackets, ellipses, internal citations, and footnote reference numbers; the original sources of need not be cited quotations within the quotation may parenthetically; be changed without and capitalization parentheticallybrackets. Indicate these changes with specified, the text of (cleaned up). Other than the changes the up should match the quotation after it has been cleaned cited. If the quotation is alteredtext used in the opinion the according or omissions changes further, indicate to Rules 5.2 and 5.3. The 45. draft of this essay suggested An early other possible forms for the parenthetical ETZLER (e.g., cleaned, stripped, uncluttered, denuded, decluttered, detangled, tidied). Given how far tidied). Given how decluttered, detangled, denuded, stripped, uncluttered, (e.g., cleaned, up) (cleaned different term has all but with closed, one exception: the variant “(cleaned)” has acquired a v. United States as a matter of law. is acceptable judicial imprimatur and therefore 25, Aug. (S.D. Tex. at *2 136656, LEXIS Dist. U.S. 2017 5:13-cr-634-5, No. Abundez, so, 2017). Even Next, I propose a rule for using Next, I propose drawn from and demonstrate through examples should be used, legal writing. streamline authors cases how it can help recent court’s decision the author— the author— court’s decision Bluebook 154T the way. along M 40357-aap_18-2 Sheet No. 23 Side B 06/11/2018 08:46:58 B 06/11/2018 23 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 24 Side A 06/11/2018 08:46:58 46 : overruled In addition In addition , 60 F.3d 906, , 60 F.3d 906, 47 Buchanan v. Maine Dartmouth Review v. Rubinovitz v. Rogato is simple. To quote language from an To quote language from is simple. 155 B. How to Clean Up B. How to Clean to the citation. to the citation. ) 6/4/2018 3:14 PM , 889 F.2d 13, 19 (1st Cir. 1989), (1st Cir. 889 F.2d 13, 19 , ELETE , 367 F.3d 61 (1st Cir. 2004)). 61 , 367 F.3d D OT UOTATIONS N Q O (cleaned up) (cleaned up) P 1(D U (cleaned up) (cleaned up) at 178. at 178. ESEND R Id. on other grounds by Educadores Puertorriqueos en Accion on other grounds by Educadores v. Hernandez “Plaintiffs claiming an equal protection violation must first violation an equal protection “Plaintiffs claiming ‘identify and relate specific instances where persons situated similarly in all relevant aspects were treated the capacity to differently,instances which have were singled . . . out for that [plaintiffs] demonstrate unlawful oppression.’” (b) Cleaning up intermediary case citations. case citations. up intermediary (b) Cleaning to the alterations a Rule 5.4(a), when described in quoted third case, the case quoting a quotes a second passage case that the to show may middle be omitted the citation to change, retain To indicate this quoted the third. first court the quoted from around the material the quotation marks were alterations that third case and any made the to (cleaned up) before the “quoting” quotation, and insert parenthetical to the third case. citation Indicate any the alterations that were made to language quoted from to Rules 5.2 and 5.3. third case according 910 (1st Cir. 1995) (alteration and omission in original) 1995) (alteration 910 (1st Cir. (quoting added) (emphasis Dartmouth Coll. For example, take this passage from take this passage from For example, Using 46.2006). Cir. 158 (1st 469 F.3d 47. LEANING LEANING ETZLER This passage is particularly difficult to use under the ordinary This passage is particularly difficult to use under the ordinary to a bracketed change and ellipsis inherited rules. In addition C another opinion, simply from opinion that includes a quotation itself within a single set of enclose the words of the quotation leaving out brackets, ellipses, internal double quotation marks, numbers. footnote reference quotation marks and citations, and the quotation if it begins your Capitalize the first letter of the does not. Cite the source of it lower case if it sentence; make to the court you’re citing, quotation as if the words were original and add M 40357-aap_18-2 Sheet No. 24 Side A 06/11/2018 08:46:58 A 06/11/2018 24 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 24 Side B 06/11/2018 08:46:58 ROCESS United United P , making , making signals that court quoted quoted court court (which that RACTICE ANDRACTICE , the ellipsis signals signals , the ellipsis P (cleaned up) Buchanan (cleaned up) (cleaned up) PPELLATE A (cleaned up) permits the author to treat the words of treat the words of to the author permits also gives the author flexibility to fit the also gives the author flexibility to OURNAL OF OURNAL J , 469 F.3d 158, 178 (1st Cir. 2006) 178 (1st Cir. 2006) , 469 F.3d 158, ) 6/4/2018 3:14 PM HE is not difficult at all: is not difficult ELETE D Thus, when the passage below from from Thus, when the passage below is quoted using OT 48 N 49 O , an author’s alterations are easily identified without without are easily identified alterations , an author’s (cleaned up) (cleaned up) (cleaned up) (cleaned up) 1(D ESEND (cleaned up) (cleaned R We have clarified that “[w]hile a PSR generallyWe have clarified that “[w]hile bears conclusionary sufficient indicia of reliability, ‘[b]ald, reliability by mere patina of statements do not acquire the “Plaintiffs claiming an equal protection violation must first violation must equal protection an claiming “Plaintiffs persons situated instances where relate specific identifyand similarly relevant aspects all were treated differently, in instances thatwhich have the capacity to demonstrate oppression.” singled plaintiffs were out for unlawful Buchanan v. Me. (cleaned up). Using original: Here is the Using 48. For an example of the difficulty of attributing successive alterations to a quotation, 49. Cir. 2017). 381 (5th 864 F.3d ETZLER see note 42 above. 42 above. see note has a wordy and negative-sounding “overruled on other “overruled on wordy and negative-sounding has a in full this passage But to quote subsequent history. grounds” using the quoted opinion as the opinion of the as the opinion of the quoted opinion States v. Rico it There is no need to distinguish that author omitted. material other cases. from alterations inherited from 156T case the is quoting, court the that the case from M in an earlier even though they first appeared is what they are) that and ellipses slough off the brackets can opinion. The author words of the all forty-nine the quote and eliminate with came is not lost— citation. That information itself a quotation, so the reader at least part of the quotation was work. But the quote does retains the option to check the author’s an that the cited court (or not tax the reader with all the changes the language in the new while adopting earlier court) made opinion. using the traditional document quote to the needs of the current Without signals for altering quotations. become so can altered quotation alterations to a multi-level, it. With writers won’t attempt and confusing that most complex (cleaned up) have altered from the may confusion about what the first court second court. 40357-aap_18-2 Sheet No. 24 Side B 06/11/2018 08:46:58 B 06/11/2018 24 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 25 Side A 06/11/2018 08:46:58 Aponte Aponte (cleaned : , 148 , 148 , 999 United States v. United States (cleaned up) (cleaned , 683 6, 10 (1st F.3d Cir. reduces the number of of number reduces the streamlines legal writing writing legal streamlines eliminates brackets and brackets and eliminates . Examples The First Circuit “set[s] aside the it rests on an decision only where or error of law or reflects arbitrary making.” capricious decision v. Holder 2012) (cleaned up). United States v. Elwood United States , (cleaned up) (cleaned up) (cleaned up) United States v. Narviz-Guerra v. States United (cleaned up) (cleaned up) Aponte Aponte 157 (Cleaned Up) ) 6/4/2018 3:14 PM C. ELETE D OT Chedid v. Holder v. Chedid UOTATIONS N Q O P 1(D U form. The language on the right shows how the same how the same the right shows The language on form. , 864 F.3d 381 (5th Cir. 2017) (cleaned up). Cir. 2017) (cleaned up). , 864 F.3d 381 (5th , 683 6, 10 (1st F.3d Cir. ESEND R F.2d 814, 817–18 (5th Cir. 1993)). 1993)). 817–18 (5th Cir. F.2d 814, inclusion in the PSR.’” PSR.’” the in inclusion in original) (second alteration 537 (5th Cir. 1998) F.3d 530, (quoting omitted) (citation has “clarified thatThis Court a PSR while generally bears of reliability,”sufficient indicia that does not that mean . acquire the patina of . . “bald, conclusionary statements inclusion in the PSR.” reliability by mere Rico In the first example, In the first example, In the next example example In the next To demonstrate how To demonstrate . In each example, the language on the left is just as it would the language on the left is just . In each example, LEANING LEANING ETZLER words by twenty-seven percent (from forty-eight to thirty-five) forty-eight to thirty-five) percent (from words by twenty-seven parenthetical about quotation marks: an ambiguous and removes The First Circuit “set[s] aside the on an it rests only where ‘decision or error of law or reflects arbitrary capricious decision making.’” and eliminates unnecessary material, this section shows before this section material, unnecessary and eliminates of volume a recent several cases from of how and after versions be quoted, with and without the Federal Reporter might up) appear if a writer quoted that part case using current of the cited Bluebook passage can be cited using v. Holder (quoting 2012) passage in the the words and reduces internal quotation marks a seventy to fifty-two) by obviating by twenty-six percent (from parenthetical a eliminating change (thus capitalization the in an alteration from that change to distinguish explanation that it an ellipsis (and the indication eliminating original), First to cite a the need and removing appeared in the original), Circuit case that the First Circuit quoted. C which uses is the quoted version, And here 2009) (1st Cir. 36 33, 573 F.3d omitted)). (internal quotation marks M 40357-aap_18-2 Sheet No. 25 Side A 06/11/2018 08:46:58 A 06/11/2018 25 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 25 Side B 06/11/2018 08:46:58 , food, ROCESS P e.g. , 509 U.S. 25, , 683 F.3d 54, 57 57 54, F.3d 683 , , 683 F.3d 15, 17 (1st 17 (1st 15, , F.3d 683 RACTICE ANDRACTICE P PPELLATE 32, 35 (1999)). 35 (1999)). 32, clothing, shelter, medical care, and medical clothing, shelter, may they safety’—and reasonable that to conditions be exposed not of serious risk unreasonable ‘pose an health.’” to [their] future damage Jabbar v. Fischer (cleaned curiam) 2012) (per (2d Cir. up) (alteration (quoting in original) McKinney Helling v. The First Circuit has held that First The that held has Circuit involves normally “persecution of a at the hands severe mistreatment but it own government, petitioner’s non- arise where may also in league are actors governmental with the government orare not by the government.” controllable Holder Ayala v. (cleaned up). Cir. 2012) “that Circuit agreed The Second of not be deprived may prisoners needs— human their ‘basic A , quoting the Supreme Court. Court. quoting the Supreme 50 e.g. , , 308 , 683 Silva v. OURNAL OF OURNAL J ) 6/4/2018 3:14 PM Helling v. HE ELETE D OT N rule, which permits the author to cut out the to cut out author the rule, which permits , 683 F.3d 15, 17 (1st 17 (1st 15, , F.3d 683 O 1(D Jabbar v. Fischer v. Jabbar Jabbar v. Fischer , 509 U.S. 25,, 50935 32, U.S. Phelps v. Kapnolas Phelps , 394 F.3d 1, 7 (1st Cir. ESEND R The final example illustrates section (b) of the proposed section illustrates The final example 50. Cir. 2012). 54 (2d 683 F.3d ETZLER The Second Circuit agreed “that Circuit agreed The Second of not be deprived may prisoners their ‘“‘basic needs— human (cleaned up) quoting a third. a decision decision quotes when a middleman of appeals when a federal court for example, This will be useful, its own prior case, which or a state court of last resort quotes quotes the United States Supreme Court. Cleaning up the the quote inaccurate—the not make decision does middleman Court even though the the Supreme first decision has still quoted quotation. For example, quotation appears within a middleman show a recent Second Circuit suppose that the author wishes to decision, 158T First The that held has Circuit involves normally “[p]ersecution at the hands of mistreatment ‘severe but own government,’ [a petitioner’s] also ‘non- it arise where may . are in league . . actors governmental with the government orare not by the government.’” controllable Holder Ayala v. care, shelter, medical food, clothing, safety’”—and reasonable and they may not be exposed ‘to conditions of risk that “pose an unreasonable future to [their] serious damage health.”’” F.3d 54, 57 (2d Cir. 2012) (per original) (alteration in curiam) (quoting M (second alteration and Cir. 2012) ellipsis in original) (quoting Ashcroft 2005)). F.3d180, 185 (2d Cir. 2002)(per (quoting curiam) McKinney (1999))). 40357-aap_18-2 Sheet No. 25 Side B 06/11/2018 08:46:58 B 06/11/2018 25 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 26 Side A 06/11/2018 08:46:58 Jabbar directly directly (cleaned (the Supreme Phelps ! Helling Helling P (the middleman case) (the middleman U Further, that option would that option would Further, will make it easier to use it easier will make court—is retained because court—is retained Phelps LEANING Jabbar. C had been decided by a different decided by had been Jabbar ’s quotation of is used to eliminate the middleman, middleman, the to eliminate is used , the court that added it. If the author , the court that 159 TART (cleaned up) (cleaned up) Phelps ) 6/4/2018 3:14 PM Phelps V. S could all be eliminated. could all be eliminated. Jabbar ELETE D OT UOTATIONS N Q O (cleaned up) up) (cleaned P Helling 1(D U is ten years older than is ten years ESEND R So far I have explained how lawyers’ and judges’ So far I have explained how job should already be my If you’ve read this far, part of When —and explained how it works. In this section I hope to —and explained how it works. LEANING LEANING ETZLER propensity to use quotations complicates writing when to use quotations complicates propensity I quoted and requoted in later cases. quotations are themselves attaches to quotations and the have shown that the clutter that often provides no that they accumulate citation metadata risks distracting for readers but instead information meaningful assign weight to ability to the text and taxing their from them proposed a solution— quotations as they read. And I’ve up) the new parenthetical in your convince you to begin using writing. I of quoting, so the problems done. You’ve probably done a lot And as my than familiar. have described should be more show, using examples in flexibility quotations in your legal writing, give you more and result in citations that are less distracting how you use them, any important for your audience without compromising Court case). Cleaning up such a change would properly attribute a change would properly attribute such Cleaning up Court case). the plain text to without relying authority wished to invoke the Second Circuit’s and Court, the brackets, quotation marks, on the Supreme to citation C quote could in this example author the Although M Court, the Supreme Circuit quoted that the Second to show Phelps available if not be circuit. that word to brackets would inaccurately attribute the removing be true if the would not The same the Supreme Court. language from court had altered of that was not part authors must be careful to ensure that the plain text attributed to plain text attributed the that be careful to ensure authors must that as the plain text the same in the citation is each opinion the bracketed alteration In this example, appears in that opinion. by the “[their]”—added 40357-aap_18-2 Sheet No. 26 Side A 06/11/2018 08:46:58 A 06/11/2018 26 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 26 Side B 06/11/2018 08:46:58 is , United ROCESS P E.g. in this case . (cleaned up) (cleaned for the first for the (cleaned up) (cleaned (cleaned up) (cleaned RACTICE ANDRACTICE P (cleaned up) (cleaned right now is the number of right now is the number PPELLATE A was first proposed, it has been used all was first proposed, (cleaned up) up) (cleaned has spread so quickly and been adopted has spread so quickly and been OURNAL OF OURNAL J ) 6/4/2018 3:14 PM HE And according to the Utah Court of Appeals, to the Utah Court And according ELETE 52 D OT N has appeared in more than 150 judicial opinions. than 150 judicial more has appeared in O (cleaned up) , 880 F.3d at 986 n.3 (also explaining that use of (also at 986 n.3 F.3d , 880 (cleaned up) 1(D 51 ESEND R That If you are still hesitating, your main objection is probably is probably objection your main still hesitating, If you are Since Perhaps the surest indicator that you can simplify your indicator that you can simplify Perhaps the surest .Steward 51. Circuits have all used Ninth Eighth, and The Fifth, Sixth, 52 ETZLER eliminated “internal quoting quotation marks, brackets, additional parentheticals and an ellipsis”). Maryland’s highest court has similarly explained that “‘[c]leaned up’ is a new parenthetical intended to simplify quotations from v. Hearn, No. legal sources.” Lamalfa available from the author. available from the author. so widely by the bench suggests so widely by the bench suggests you will not be taking a that or you use the parenthetical in your own opinion great risk when As there speak for themselves. brief. The opinions already out up’ is a new parenthetical the Eighth Circuit put it: “‘Cleaned unnecessary explanation of non-substantive used to eliminate prior alterations.” 160T of you; some for be enough probably will That information. hesitant. be more others will and to adopt a new be the first one don’t want to that you bea lawyer, you might If you’re citation convention. untested see a judge have to reluctant especially should one of your opponents in your brief, thinking that time probably don’t And if you are a judge, you take that chance. feels like a first on your bench to take what want to be the and even all of your objections to overcome radical step. I hope provide an incentive. it. As of March 31, 2018, judges and courts already adopting (cleaned up) M plucky band of early adopters was once a What over the country. legal working to make movement a nationwide has become also easier to write. read and writing easier to legal writing by using of appeals, twenty federal four federal courts from They come of last resort, six intermediate district courts, six state courts were state trial court, and and one state appellate courts, and joined by an additional authored by forty-nine judges eighty. States v. Joiner, No. 16-6833, 2018 WL 1211942 at *4 n.2 (6th Cir. Mar. 8, 2018); UnitedMar. 8, 2018); (6th Cir. at *4 n.2 WL 1211942 2018 States v. Joiner, No. 16-6833, Co., NAC Marketing 2017); Lopez v. Cir. n.3 (8th 986 983, F.3d 880 States v. Steward, 866 curiam); United States v. Reyes, (9th Cir. 2017) (per App’x 492, 493 Fed. LLC, 707 using full list and judges of the courts A Cir. 2017). (5th 321 316, F.3d 40357-aap_18-2 Sheet No. 26 Side B 06/11/2018 08:46:58 B 06/11/2018 26 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 27 Side A 06/11/2018 08:46:58 Thus, as an Thus, as (cleaned up) (cleaned up) 54 At the state level, it 57 in hundreds of briefs in hundreds of 56 had by then “found favor with at least one (cleaned up) 161 (cleaned up) ); Sang Ho Na v. Gillespie, 234 Md. App. 742, 174 A.3d 742, App. 234 Md. Gillespie, Na v. ); Sang Ho ) 6/4/2018 3:14 PM Indeed, “[t]he ‘cleaned up’ parenthetical is up’ parenthetical “[t]he ‘cleaned Indeed, 53 ELETE , Commonwealth v. Kehr, 180 A.3d 754, 761 n.6 (Pa. Super. Ct. 761 n.6 (Pa. Super. 180 A.3d 754, v. Kehr, , Commonwealth D . OT UOTATIONS N (cleaned up). up). (cleaned (cleaned up) (cleaned Q O Id. P This widespread judicial adoption of This widespread 1(D U 55 see also, e.g. ESEND R Lawyers have now used Lawyers have now (cleaned up) 53. 2018). App. n.2 (Utah ¶ 9 UT App 8, 2018 Cady, State v. 54. *8 n.12 (Tex. at 9868 LEXIS App. Tex. No. 02-16-00434-CR2017, Marks, Tex. v. 55. Dist. U.S. 2018 4:17-cv-00362-JEG, No. Reynolds, Animal Legal Def. Fund v. 56. Appeals Circuit and the Court of The outlier federal courts of appeals are the D.C. 57. Florida, California, Alabama, Arizona, those in The highest state courts are LEANING LEANING ETZLER filed in courts at every level of the judicial system, spreading it every level of the judicial system, filed in courts at where it has appeared in judicial courts many well beyond the more 2018, it had appeared in the end of March opinions. By Court, in States Supreme than a dozen briefs filed in the United briefs court of appeals, and in every federal briefs filed in almost courts. filed in thirty-five federal district up) signals that to (“Use of (cleaned 2018) Feb. 2, filed (Md. 23 n.5 at 39/17, slip op. of the quotation,improve readability but without altering the substance the current author quotation marks, brackets, clutter such as non-substantive extraneous, has removed to or made un-bracketed changes ellipses, footnote signals, internal citations capitalization.”) should put to rest any concern that the judges with whom you with whom any concern that the judges should put to rest react negatively you practice—will before whom hear cases—or to the highest courts of fourteenhas appeared in briefs filed in state intermediate eighteen states and the District of Columbia, courts. appellate courts, and eight state trial C is unfamiliar, perhaps up,’ while ‘cleaned parenthetical “[t]he that internal to indicate frequency with increasing being used omitted citations have been and/or marks, alterations, quotation a quotation.” from first being proposed.” traction since fast gaining Southern District the “[t]he of Iowa concludes, from opinion be used when extraneous, (cleaned up) may parenthetical a from has been removed information residual, nonsubstantive citation.” M App. Oct. 19, 2017) (noting that 2017) Oct. 19, App. 493, 499 n.2 (Md. Ct. Spec. App. Dec. 1, 2017) (same). 1, 2017) Dec. App. Ct. Spec. (Md. n.2 493, 499 up). 2018) (cleaned Iowa (S.D. n.2 *13 LEXIS 38613, author. district courts is available from the A list of the Armed Forces. for the Texas, Carolina, South Ohio, York, New Mississippi, Michigan, Maryland, Kentucky, A list of Columbia. court in the District also the highest Virginia, and West Vermont, and from the author. trial courts is available of the state intermediate appellate courts and 2018) (describing Texas Supreme Court justice and at the Fifth Circuit, among other courts around the courts around at the Fifth Circuit, among other Court justice and Texas Supreme country”); 40357-aap_18-2 Sheet No. 27 Side A 06/11/2018 08:46:58 A 06/11/2018 27 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 27 Side B 06/11/2018 08:46:58 . , f s l s e e a e S f r S i, /. s s s r. e g e g i M i M S S o o i i d d n c n c s t s t h h h h S S a r a r x x A A o o T M t at x roces p ROCE RKANS id. P A And 60 , in , in . 6/4/2018 3:14 P 59 ed up)” r. Garner as “t nal that ppellate Practi ellipsis ellipsis contain f a model s. ord AND AGarner. And AGarner. ns and Citatio ur time”); Carl ert on leg ert on tice-and- lem that lem p) e first cour an Garner’s an Garner’s need to eady in the han their reade their writing—simpl y remainin and Justice Scal and raged judge e, I know tha TY OF n T n g g l l r s A r s A c s n o c s o y n o o y M E M E g g n w n w b b u p u h u p u h n n u u ra p ore is al F NIVERSI Here’ RACTIC s enco U P r 61 See (cleaned itter.com/Brya tte ore opinion t of some olves a pro ed-Up Quotati ed-Up ust 2017: ust 2017: . of quotatio Edition of Br The Journal of xicographer of xicographer ed. ay with a ay with that Mr. Garner nd simply si mail listmail might b opinion yo of-appellate- nd Process tes to refer tes to add “(clea source, usin 14) (describing leading ex leading sterbrook, ain style in lega ATE l a A e s w n e e s y w n s e y d s , e d , t r - e t r g e g e a a a m m w w AW L PPELL https://t A See , Frank H. Ea , Frank sed footno country’s f adopting uld do a L OF port in Au ekly newsl ). the LawProse gelist for the pl to do that is to ch it appea s an earlier on on the Thir CHOOL OF sson 303: Clea sson ions/the-journal- s more and s more .g. quoting tha ge in the countr This signal ess 139, 140 (20 ess 139, 140 can emulat ers. ellate Practice a eeminent legal l clean it up u 6 (indicating ote u on repetition i e o i e o o o p e p e A A i i t n t n r r e e o or S e e S e e c d d a a n n u u w w n the follo OURN OWEN supra r J , ee also, ) s , which H. B HE LawProse L T ELETE opt it: ions in wh arner as “the p as “the arner rimatur sh rimatur row worse nough, yo ARNER so. The way Journal of App ors); Garner, pinion quot Less: A Reflect r, e, it’s fair to ne of his w the citation. ul”). D edu/law/publica 51–55. d out his su d out his propriety eva editor, and t know how larg t know how ckets, and i ate appellate ju up) pp. Prac. & Pro Prac. & pp. le from the auth le from the urth-generati IAM 0 Twitte d d . . n n e e , , f f h h e r e r p t f p ’ t e G f g e G g G G T o o e a e e o a e o A A O Th ILL & N O notes W 1(D tweet CALIA OCK , http://ualr S 58 R (cleaned ESEND Ten Items or Ten Items R recently, , 2018) (availab , 2018) g Brief, 15 J. writer, teacher Garner im blished opi Bryan A Garn Bryan A See supra See Although I don , e t about th t about If a recent br dots and add still mo you’ve done at the end o is bound to third- and fo And Bryan Bryan And awyers to a has over 23,00 eferring to Mr. ollaborating aut R TLE ocess ng, that is not direct, and force direct, and issue of this ry federal and s ry federal ef: n 3 n r g r e g e r r n l n l E s E s c i r c i T u T u e e e b b n n I Pr L 59. 60. 61. 58. ETZL clean, (Mar. Garne cours of ev AT and eve to u to p a bri xxvi ( Kapla Winni leadin Mor and The dou 162 writ M were 40357-aap_18-2 Sheet No. 27 Side B 06/11/2018 08:46:58 B 06/11/2018 27 Side Sheet No. 40357-aap_18-2 40357-aap_18-2 Sheet No. 28 Side A 06/11/2018 08:46:58 S ’ LACK leads then— , B ICTIONARY (cleaned 62 D , AW AW are working L See, e.g. See, S ’ (cleaned up) LACK (cleaned up) , United States v. Reyes,, United Black’s Law Dictionary 64 . Post a picture of your use on . Post a picture of your use ONCLUSION See, e.g. 163 VI. C ) 6/4/2018 3:14 PM ELETE D OT UOTATIONS N (Bryan A. Garner ed., 10th ed. 2014); B ed., 10th ed. Garner (Bryan A. Q O P 1(D U and I will personally hail you as a legal-writing hero hail you as a legal-writing hero and I will personally 63 ESEND R ICTIONARY This brief uses (cleaned brief uses This internal that to indicate up) have been and citations marks, alterations, quotation from quotations. omitted 520 v. Ky., Smith Cir. 2017); 321 (5th 316, 866 F.3d Bd. of Knox Cty. 2017); I.L. v. 354 (Ky. S.W.3d 340, Tenn. 2017). 946 & n.4 (E.D. 3d Supp. F. Educ., 257 The advocates and judges using The advocates and judges using Finally, if you’re not convinced by the precedent being set not convinced by the precedent Finally, if you’re D , when you send me your brief or opinion using the your brief or me , when you send 62. in 1999. edition since the seventh Bryan Garner again—every 63. @SCOTUSPlaces. You’ll find me via #AppellateTwitter, a/k/a the “hot spot for 64. of. to keep track there are too many heroes Offer valid until LEANING LEANING ETZLER AW AW to create a better world for legal writers everywhere. Join us. to create a better world for L 1999). ed., 7th ed. Garner A. (Bryan legal nerds.” maybe a bribe? You should know that using a bribe? You should know maybe will you Not only plaudits. and Twitter internet fame to directly by using judges and lawyers fellow be helping your up) the on be forever inscribed will your name parenthetical, Cleaned Up Roll of Heroes and send you a card saying so. C “opinion” for a judge could simply substitute And of course footnote. this model first line of “brief” in the by the state judges; if you’re not inspired by federal and if you’re the country; across practitioners of appellate example the editor of not persuaded by Twitter, M 40357-aap_18-2 Sheet No. 28 Side A 06/11/2018 08:46:58 A 06/11/2018 28 Side Sheet No. 40357-aap_18-2