Don't Be A Block Quote Fundamentalist

I just love kicking a hornet's nest.

OK, so two comments is hardly a hornet's nest, but to be fair I did get several e-mails about the whole block quote thing.

Recall that in a recent post I basically called block quotes the lazy man's way to avoid thinking--telling the court what the cases say instead of arguing what the cases mean.

And then I said judges don't read block quotes.

I basically said they should never be used.

And I stand by all of that. You should never use block quotes. 

Never.

Never, that is, unless you really should use a block quote. No need to be a fundamentalist about such things.

After the break, the Gospel According To The Appellate Record on when you should use block quotes.

So, when should you use block quotes? The key is found in the reasons not to use them. Most of the time a block quote detracts from your main purpose because it just reveals what a source says, not what it means.

So the converse is true. A block quote might be important when what something says is more important at that particular moment than how it should be understood.

When might that be? How about:

• The very first statement of a statute in a statutory construction case;
• The initial statement of a clause that is subject to a contract construction dispute; or
• A key question and answer in testimony that disposes of a disputed issue.

Notice anything about these examples? They're essentially factual. I find this kind of interesting because I use footnotes in different ways for a fact section or in legal argument for largely the same reason.

Even the statutory and contract examples are factual:

• This is what the statute says
• This is what the contract says

There you go, court. You don't need to put the brief down to pull the contract or the statute. You have the text in front of you. Now we will argue about what the text means.

What about a key case? Block quoted?

Probably not.

Sure, you could quote a key case, but most of the time, if your dispute has any complexity at all, there isn't going to be a silver bullet case on all fours. You're going to have to string some authorities together and make an argument. You're going to have to get down and dirty about what the cases mean.

In that case, block quoting something risks overselling a precedent that really isn't dispositive. And quoting something in a block instead of quoting in text while applying it to your facts just invites the court not to read the quote at all. 

So, here are my rules of thumb:

• Avoid block quotes for legal authorities.
• Concentrate instead on what the authorities mean rather than just repeating what they say.
• Consider a block quote for key factual matters.
• If your brief has more than two block quotes, step back and figure out what is really key. There aren't that many keys, because if everything is key, then nothing is key.
• Don't block quote anything the court already knows. That is not helpful.

And finally, for the associates who subscribe to the blog, if you bring me a motion with Rule 56 or something similarly familiar taking up space in block quotes, you will be hung.

Then you'll be fired.

I jest.

Mostly.