Author:Metzler, Jack

    Judges and lawyers use a lot of quotations in their writing. It's not hard to understand why: our common-law tradition places great value on what courts have said in the past. (1) And how better to show what a court said than to quote it? (2) Of course, when we talk about "what a court said" we necessarily mean what a judge wrote. So it often turns out that the best quotation for a proposition is one in which a judge has quoted some other judge. Not only that, there's a pretty good chance that second judge was quoting still another judge. You see where this is going.

    All this quoting has a purpose. It assures readers that they don't have to rely solely on the author's say-so because the proposition has already been adopted by a court, and in so many words. (3) An important part of that assurance comes from the citation that follows the quote, which communicates information from which the reader can assess the weight of the authority quoted. (4) The reader learns which court (sometimes also which judge) said it, when the court said it, how to find the opinion in which the court said it, and the very page on which the quote appears. (5) Adept legal readers incorporate this metadata into their understanding as they read along, comparing it to their knowledge about various courts and the relationships between them to give more or less weight to the quoted proposition. (6) This process, which benefits the writer by advancing the legal argument and building credibility with the reader, also benefits the reader, who usually learns enough from the quotation and the citation to avoid looking the case up. (7)

    These benefits are in tension, however, with the need for readability. (8) Each quote (and its citation) has the potential to distract the reader from the author's line of reasoning. The potential is greater than when a writer cites authority without a quotation because what a court said in the past usually is not exactly what a legal writer wants to say later. (9) When that happens, writers alter the quote--maybe they change the verb tense; maybe they drop a word or two--but then they must indicate those changes within the quotation itself or in a parenthetical to the citation. Yet each change increases the amount of metadata that the reader must navigate before moving on to the next sentence. The potential to distract multiplies when the altered quotation is quoted by a subsequent writer. A passage can quickly become cluttered with brackets, ellipses, and quotation marks that distract the reader's eyes and attention, while at the same time its citation becomes an unwieldy mess packed with case cites and parenthetical information that tests the reader's ability to remember the point that the author was trying to make by using the quotation in the first place.

    How to indicate changes to quotations and cite the sources of embedded quotations is not the problem. Most legal writers use the Bluebook, which has detailed rules (explored below) for quotations. (10) That a quote has been altered, and how, is important information for the reader. The Bluebook rules work fairly well to tell the reader how an author has changed a quotation, and they do so without too much distraction--for the first author anyway. (11)

    But when the first author to use a quote is a judge and the next author wants to quote what that judge said, the rules require that the second author tell the reader--

    * the immediate source of the quote;

    * which part or parts of the quote came from an earlier authority;

    * any alterations that the immediate source made to the embedded quote; and

    * any alterations that the current author makes to either the immediate quote or the embedded quote.

    And all of this gets even more complicated if the second author is also a judge whose work a third author wants to quote. (12) The Bluebook has rules for "quotations within quotations" too (13) but it does not address how to deal with the successive layers of source indication that result from the rules when a quotation is slightly altered and requoted by court after court.

    That extra baggage is the problem. It takes very few successive quotations before most legal writers will give up on trying to follow Bluebook form and find different ways to get their points across. A common strategy is to write around the problematic parts of a quotation, either by quoting fewer words or by making alterations to avoid the use of distracting prior-quotation baggage. An example is Chief Justice Roberts's recent quotation of a bracket-ridden passage from an opinion written by Chief Justice Burger. He used a part of the quotation that contained only one of the five bracketed changes appearing in the original, and then overrode that change with one of his own. Here is the original sentence as it appears in McDaniel v. Paty: (14)

    [To] condition the availability of benefits [including access to the ballot] upon this appellant's willingness to violate a cardinal principle of [his] religious faith [by surrendering his religiously impelled ministry] effectively penalizes the free exercise of [his] constitutional liberties." Sherbert v. Verner, 374 U.S. 398, 406 (1963). (15) And here is Chief Justice Roberts's quotation in Trinity Lutheran Church v. Comer: (16)

    In this way, said Chief Justice Burger, the Tennessee law "effectively penalizes the free exercise of [McDaniel's] constitutional liberties." Id., at 626 (quoting Sherbert v. Verner, 374 U.S. 398, 406 (1963); internal quotation marks omitted). (17) Chief Justice Roberts is an adept legal writer, and his substitution of one bracketed change for another is elegant. But should the Chief Justice (or any judge) really spend extra time working out how to construct a sentence simply because another judge used brackets too generously? Should clients pay for their lawyers to write around or fiddle with brackets, ellipses, quotation marks, and parentheticals to solve similar problems? And does all that clutter even contain any meaningful information?

    Often it does not. When quoting another opinion, a judge should follow ordinary conventions to indicate alterations so that readers can distinguish the earlier authority from the opinion that quotes it and evaluate the quoting court's use of the authority. But with that accomplished, the text of the quotation becomes part of the new opinion. If an advocate or judge wants to invoke the new decision as authority, whether all or some of the text came from an earlier opinion often doesn't matter, and whatever the new court changed from the earlier opinion matters even less. Given the ubiquity of quotations, altered quotations, and further altered quotations in legal writing, problems like the one Chief Justice Roberts encountered in Trinity Lutheran occur all the time, and they needlessly consume judges' time and effort, lawyers' time and effort, and clients' money.

    The proposal outlined in this essay gives legal writers the option to drop superfluous material like brackets, ellipses, quotation marks, internal citations, and footnote references from their quotations by using a single new parenthetical--(cleaned up) (18)--to signal that such material has been removed and that none of it matters for either understanding the quotation or evaluating its weight.

    Part II describes the Bluebook rules applicable to quotations, alterations of quotations, and quotations within quotations. Part III explains how the indications required by the Bluebook often fail to convey meaningful information beyond the first level of quotation. Part IV introduces (cleaned up) and how to use it. Part V should convince you to start using (cleaned up). Part VI briefly concludes.


    The Bluebook signals the importance of quotations in legal writing by devoting Rule 5--a full-blown, top-level, no-decimal-point rule--to the subject. (19) Rule 5.1 describes how to format quotations; with its most important dictate (for purposes of this essay) being the simple rule that quotations must be enclosed within quotation marks and that quotation marks within the quoted material appear as single quotation marks. (20) The meat of Rule 5, citation-wise, is found in Rules 5.2 and 5.3, which describe how to indicate that a quotation has been altered. When a quotation contains a quotation, these rules work together with Rule 10.6, which explains how to format a citation that appears within a parenthetical to identify the original source of a quote, and where to place that parenthetical. (21)

    Rule 5.2 explains how to show that you have added, changed, or omitted letters; added words; or a fixed mistake in a quotation. (22) This kind of change opens up several ways to use a quotation while retaining the substance of the quoted passage. An author might substitute a lower case letter for a capital letter, for example, because the quote does not appear at the beginning of the author's sentence. Similarly, omitting or substituting a letter or two permits a writer to adjust a verb's conjugation or tense so that the quote fits grammatically within a new sentence. When a court's holding includes a litigant's name, a subsequent author might replace the name with a generic term like defendant or party to emphasize the principle of law stated in the quote rather than its specific application to the earlier case. The Bluebook generally directs authors to indicate these changes by putting the new material in brackets. (23)

    Rule 5.3 covers how to indicate that you have omitted material (other than individual letters) from a quotation. Omitting material helps authors draw specific points from court opinions when they are made over multiple sentences, appear in a complex sentence, or are otherwise interrupted by material other than the point the author wishes to make. The Bluebook rule is simple: when one or more words are omitted, use an ellipsis. (24) The rule explains when an ellipsis is required...

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