Twitter plays a role in politics, pop culture and even appellate advocacy (#AppellateTwitter). Now, it can add innovation in legal writing as its latest cultural impact. The newest suggested change to the Bluebook started with a tweet by government appellate attorney Jack Metzler about the cumbersome task of explaining non-material alterations to quotations. Instead of including several explanatory parentheticals, he proposed one signal to indicate to the reader that the author had “cleaned up” the quotation of extraneous ellipses, quotation marks, and the like. Since the infamous tweet, Metzler has authored an essay explaining the idea, which is set to be published in a forthcoming issue of The Journal of Appellate Practice & Process. In the meantime, he wants more lawyers to jump on the bandwagon. Here is Metzler’s case for using (cleaned up) in your next citation sentence.
The basic idea behind (cleaned up) is simple. Lawyers quote legal opinions all the time. And in our writing, exact quotation of the words we are quoting is not, primarily, a matter of giving credit to the source. Quotation provides the court with authority for the proposition and how much weight to give it, while at the same time, avoids misleading the court or misattributing the source of that authority. For example, take the following sentence in a brief:
This action is unlawful.
If the sentence appears without quotations and citation, a court may read it simply as argument. But suppose the brief says,
“This action is unlawful.” U.S. Supreme Court case (2017).
Now the court sees that it is not simply rhetoric or argument, but a citation to something the court may be bound to follow. Providing precedential information is critical in legal writing, where judges are bound to follow a higher court’s precedent.
So, lawyers use quotations. A lot of quotations. And when we do, we typically use the Bluebook in order to provide the citation authority information—what Metzler refers to in his article as “legal metadata.” But, as Metzler points out, providing this information is often in tension with readability. And because quotations and altered quotations are ubiquitous, spending legal resources to craft perfectly altered quotations to avoid the readability problems created by a proper Bluebook citation wastes lawyers’ time and thus, the clients’ money. Yet you cannot simply drop citation conventions, because if you do, you will lose credibility with the court.
Enter a new parenthetical: (cleaned up). Here is how it works. Using (cleaned up), the author is allowed to quote directly from what a previous court actually said, without having to transfer alterations in quotations and extraneous source attribution information. In other words, the signal “permits the author to treat the words of the opinion as the opinion of the court (which is what they are) even though they first appeared in an earlier decision.”1 Metzler provides the following illustration:
Before: The First Circuit has held that “[p]ersecution normally involves ‘severe mistreatment at the hands of [a petitioner’s] own government,’ but it may also arise where ‘nongovernmental actors . . . are in league with the government or are not controllable by the government.’” Ayala v. Holder, 683 F.3d 15, 17 (1st Cir. 2012) (second alteration and ellipsis in original) (quoting Silva v. Ashcroft, 394 F.3d 1, 7 (1st Cir. 2005)).
After: The First Circuit has held that “persecution normally involves severe mistreatment at the hands of a petitioner’s own government, but it may also arise where nongovernmental actors are in league with the government or are not controllable by the government.” Ayala v. Holder, 683 F.3d 15, 17 (1st Cir. 2012) (cleaned up).
Metzler’s forthcoming article makes a nice case for using (cleaned up) signal instead of following Bluebook form to a “t.” And many agree. Innovative lawyers across the country are already using Metzler’s new citation convention. (But apparently none so far in Colorado; at the time of the author’s working draft, he reported that the parenthetical had not yet made an appearance in a brief before the Tenth Circuit or Colorado state or federal courts.) And even judges are recognizing the signal’s benefits; (cleaned up) has made an appearance in at least two published decisions around the country.2 Bryan Garner tweeted his approval after Judge Reavley from the Fifth Circuit used it in an opinion.3
Jack Metzler’s article will be published in The Journal of Appellate Practice and Process in 2018, so more judges are likely to get this on their radars. But in the meantime, he has published a working draft online with the hopes that more people will start using (cleaned up) in their writing. In this draft, he even provides a model footnote to drop into your brief the first time you use it so courts know what you are doing—the fact that judges around the Country are doing it is cited.
The case for (cleaned up) is well made by Metzler. Don’t be surprised if you see it pop up in a brief or an opinion the next time you are before an appellate court.
1 Jack Metzler, Cleaning Up Quotations (working draft Sept. 8, 2017), 18 J. Appellate Practice & Process ___ (forthcoming 2018).
2 Id.; see, e.g., United States v. Reyes, ___ F.3d ___, 2017 WL 3262281, at *4 (5th Cir. Aug. 1, 2017).
3 Metzler, supra n.1 at 24.
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