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Should Messy Citations Get (Cleaned Up)?

By Rebekah Page-Gourley posted 11-19-2021 14:09


In March 2017, Washington, D.C., attorney Jack Metzler tweeted an idea that he thought would make legal writing easier to read. The tweet proposed that writers eliminate the multiple sets of quotation marks and other punctuation traditionally used when quoting a court decision that quotes something else, and instead use the parenthetical (cleaned up).

As the (cleaned up) idea started to catch on, Metzler expanded on his proposal:

The idea is simple. When you use a quote to draw on the authority of the court you’re quoting, the reader doesn’t need to know that the court was itself quoting an earlier authority because the words of the quotation have become part of the new opinion. The reader has even less need to know what brackets or ellipses or internal quotation marks were part of the original quote. So why not let authors take them all out (and change capitalization without brackets too), and use one signal to indicate that to the reader? If the author makes new alterations, they can be indicated according to the normal rules.

It's certainly tempting to get rid of all of the extra text, leaving more room for legal analysis (or maybe just more white space). And the practice has gained popularity in recent years. As of 2021, over 5,000 opinions from various courts have used it, including a SCOTUS opinion authored by Justice Clarence Thomas. Legal writing guru Bryan Garner and law professor and prolific legal blogger Eugene Volokh have both embraced (cleaned up) wholeheartedly.

But while (cleaned up) has its vocal supporters, there are those who are still skeptical. I talked to a few Michigan judges and practitioners to get their thoughts and heard a variety of responses:

  • Judge Jane Beckering of the Michigan Court of Appeals agreed that the parenthetical makes legal writing more readable, but she noted that “written opinions (or briefs that cite to the law) have a chain-of-evidence one-step removal, and there is a potential risk that the cleaned up version may not accurately capture the original citation and its intended meaning.” Judge Beckering concedes that it’s a minimal risk, but she still finds it a bit too informal and does not use it (though she noted that some of her Michigan Court of Appeals colleagues do).
  • Phil DeRosier of Dickinson Wright tends to agree, noting that it’s “a little too casual, as well as imprecise (i.e., what exactly was ‘cleaned up’?).”
  • Brian Shannon of Jaffe’s “first thought was positive.” He likes how (cleaned up) promotes the ease of reading and notes that if a reader is curious about the background, they can “go to the source to see the quote with the interior quote identified.” He also finds the risk of misuse minimal, noting that someone trying to be purposely deceptive could be easily discovered and discredited.
  • Judge Christopher Yates does not feel strongly about (cleaned up) one way or the other; he told me he never uses it himself, but he “can see the benefit of it.”

Professor Volokh notes that the fact that many cases use (cleaned up) without defining it is “a sign of its acceptance.” He says he’ll “use it from now on when filing briefs in courts that regularly use it and will likely use it even in courts that don't regularly use it, though there I'll add a footnote explaining it and citing authoritative courts that have used it.”

Jack Metzler suggests using the following explanatory footnote:  

This brief uses (cleaned up) to indicate that internal quotation marks, alterations, and citations have been omitted from quotations. See, e.g., United States v Reyes, ___ F3d ___, 2017 WL 3262281, at *4 (5th Cir Aug 1, 2017); Smith v Kentucky, 520 SW3d 340, 354 (Ky 2017); IL v Knox Cty Bd of Educ, No 3:15-CV-558, 2017 U.S. Dist. LEXIS 92257, at *24 & n.4 (ED Tenn June 15, 2017).

So what do you think? Will your next legal brief be (cleaned up)? Let me know in the comments!