Academic journal article Journal of Appellate Practice and Process

Cleaning Up Quotations

Academic journal article Journal of Appellate Practice and Process

Cleaning Up Quotations

Article excerpt


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. …

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