Eradicating Messy Alterations and Parentheticals
When you do use quotations, they will still carry the risk of creating clutter on the page. Therefore, when possible, clean up your quotations.
What does “clean up your quotations” mean?
Consider this passage from United States v. Rico, 864 F.3d 381, 385 (5th Cir. 2017):
We have clarified that “[w]hile a PSR generally bears sufficient indicia of reliability, ‘[b]ald, conclusionary statements do not acquire the patina of reliability by mere inclusion in the PSR.’” United States v. Narviz-Guerra, 148 F.3d 530, 537 (5th Cir. 1998) (second alteration in original) (citation omitted) (quoting United States v. Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993)).
Note that the court in Rico is quoting its own past decision in Narviz-Guerra, which in turn quotes Elwood. This requires single quotation marks within double quotation marks, as well as bracketed alterations and multiple parentheticals.
And now let’s assume that you want to quote Rico directly. If you want to quote this passage in your brief, and you include all of the same information, you’ll be quoting the quote of a quote. Thus, your passage might look something like this:
The Fifth Circuit “ha[s] clarified that ‘[w]hile a PSR generally bears sufficient indicia of reliability, “[b]ald, conclusory statements do not acquire the patina of reliability by mere inclusion in the PSR.”’” United States v. Rico, 864 F.3d 381, 385 (5th Cir. 2017) (second and third alterations in original) (citations omitted) (quoting United States v. Narviz-Guerra, 148 F.3d 530, 537 (5th Cir. 1998) (third alteration in original) (quoting United States v. Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993))).
This is messy! So, how do we clean it up? (No, the answer is not “drop the citations into footnotes.” Judges reading e-briefs on tablets do not want footnotes.)
Let’s start with the brackets. The third alteration (“[b]”) was made in 1998, when the court quoted Elwood in Narviz-Guerra. The second alteration (“[w]”) was then made when the court quoted Narviz-Guerra in Rico. But once the court has made these alterations, the text has been altered. There is no need to provide an archaeology of alterations in your brief. If we accept the court’s alterations—like accepting someone’s edits using Microsoft Word’s Track Changes—then we can eliminate the second and third sets of brackets and our passage looks like this:
The Fifth Circuit “ha[s] clarified that ‘while a PSR generally bears sufficient indicia of reliability, “bald, conclusory statements do not acquire the patina of reliability by mere inclusion in the PSR.”’” United States v. Rico, 864 F.3d 381, 385 (5th Cir. 2017) (internal citations and alterations omitted) (quoting United States v. Narviz-Guerra, 148 F.3d 530, 537 (5th Cir. 1998) (quoting United States v. Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993))).
Note: The first set of brackets (“[s]”) must stay here because we made that alteration. But the others can go because, after making our alteration, we’re accepting the alterations previously made by the court and quoting the text exactly as it appears in Rico.
However, we can even eliminate that first set of brackets (our own alteration) by adjusting our passage like this:
The Fifth Circuit has clarified that “‘while a PSR generally bears sufficient indicia of reliability, “bald, conclusory statements do not acquire the patina of reliability by mere inclusion in the PSR.”’” United States v. Rico, 864 F.3d 381, 385 (5th Cir. 2017) (internal citations and alterations omitted) (quoting United States v. Narviz-Guerra, 148 F.3d 530, 537 (5th Cir. 1998) (quoting United States v. Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993))).
Now, what can we do about the quotation-marks-within-quotation-marks-within-quotation-marks? The same thing. The court (in Rico)has quoted itself (in Narviz-Guerra) quoting itself (in Elwood). While the court might cite this genealogy to demonstrate the line of authority that underlies its decision in Rico, we just want to cite Rico. Therefore, we can eliminate those embedded quotation marks (as well as the “quoting” parentheticals). Now our passage looks like this:
The Fifth Circuit has clarified that “while a PSR generally bears sufficient indicia of reliability, bald, conclusory statements do not acquire the patina of reliability by mere inclusion in the PSR.” United States v. Rico, 864 F.3d 381, 385 (5th Cir. 2017) (internal citations, alterations, and quotation marks omitted).
Much better. (Reminder: For the purposes of this exercise, we’re assuming that for some reason we need to quote these exact words from Rico. But we can avoid all of this by simply paraphrasing if a direct quote isn’t necessary.)
Cleaning Up with a New Citation Tool
“But wait,” you say. “The final passage just replaces the punctuational clutter with extended parenthetical clutter at the end of the citation.”
This is true. So, replace the extended parenthetical with something simpler:
The Fifth Circuit has clarified that “while a PSR generally bears sufficient indicia of reliability, bald, conclusory statements do not acquire the patina of reliability by mere inclusion in the PSR.” United States v. Rico, 864 F.3d 381, 385 (5th Cir. 2017) (cleaned up).
“Hang on,” you say. “That’s not in the Bluebook.”
Nope, it’s not. Created by Jack Metzler (with a little help and encouragement from folks on #AppellateTwitter), “(cleaned up)” is a new explanatory parenthetical. (The title of this article deliberately echoes the title of Metzler’s article.) This new citation tool tells the reader that internal, nonmaterial quotation marks, alterations, or citations have been omitted from the quoted passage.
Why do this? To improve readability, of course. Compare our final passage (using (cleaned up)) to our first attempt (quoting the quote of a quote). The final passage is 44 words instead of 79—and much, much easier to read.
“Well, okay,” you say. “But I’m not comfortable using a brand-new citation tool that some guy named Jack made up.”
Fair enough. But would you feel comfortable using a citation tool that has already been used by a quill of appellate lawyers and by a robe of judges, in briefs and opinions filed in state and federal courts nationwide—from a juvenile court in Alabama to the Supreme Court of the United States?
As of early October, (cleaned up) had been used in at least 120 court filings across the country. Here’s a map of where it has appeared.
Just to hit a few highlights, (cleaned up) has been used by the following:
- Judge Thomas Reavley, writing for the U.S. Court of Appeals for the Fifth Circuit (United States v. Reyes, 866 F.3d 316, 321 (5th Cir. 2017))
- Judge Alan Norris, writing for the U.S. Court of Appeals for the Sixth Circuit (United States v. Dowell, — F.App’x —, 2017 WL 4461035, at *2 (6th Cir. Oct. 6, 2017))
- Justice Samuel Wright, writing for the Supreme Court of Kentucky (Smith v. Kentucky, 520 S.W.3d 340 (Ky. 2017))
- Justice Don Willett of the Texas Supreme Court (and recent nominee to the U.S. Court of Appeals for the Fifth Circuit) (Cadena Commercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318, 341 n.18, 350 n.80, 354 n.112, 362 n.177 (Tex. 2017) (Willett, J., dissenting))
- Chief Judge Stephen Dillard of the Georgia Court of Appeals (Oller v. Rockdale Hosp., LLC, — S.E.2d —, 2017 WL 3472856, at *4 n.6 (Ga. Ct. App. Aug. 14, 2017) (Dillard, C.J., concurring))
Notably, after Judge Reavley used (cleaned up) in a published Fifth Circuit opinion, legal-writing guru Bryan Garner, who clerked for Judge Reavley, voiced his approval on Twitter.
Conclusion
So, have no fear. Avoid using quotations in general. If you use quotations sparingly, they’ll be more potent. And when you do need to quote the precise wording, embrace (cleaned up), the new citation tool, and clean up your quotations where appropriate. Your readers will thank you.
Jason P. Steed is an appellate attorney with Kilpatrick Townsend & Stockton LLP. He was the first to use (cleaned up) in a party’s brief filed in the Supreme Court of the United States.