All Cleaned Up
Appellate advocacy is about persuasion – and the most important avenue for persuading appellate judges is a brief that is clear, concise, and readable. So what does an appellate attorney do when confronted by the need to quote a passage that contains ellipses, citations, or alterations in brackets? One less-than-desirable option is to include all of that extraneous material and a long citation string, making for a hard-to-read quote that is central to your case. But there is another option – and it was just endorsed by Justice Thomas last month.
A little bit of background: As discussed over at the Appellate Advocacy Blog, Jack Metzler began a conversation about this issue by suggesting that unnecessary quotation clutter could be omitted if the citation for the quote is followed by the parenthetical “(cleaned up).” The proposal has its supporters, including no less than Bryan Garner, but also its critics. The approach would improve readability, but might become a crutch that encourages appellate lawyers to use too many quotations.
Despite the ingrained hesitancy on the part of attorneys and courts to innovate, Metzler’s suggestion has gained steam and has now been widely used by federal courts of appeals (including the First Circuit) and many district courts – though, to the best of my knowledge, it has never been used by the Maine Law Court. Just last month, the new parenthetical comment appeared for the first time in a Supreme Court opinion authored by Justice Thomas. With that notable event, it appears that the new citation convention has become fully mainstream.
Citation forms may be an issue that only appellate lawyers can love, but little tools like this one are precisely what appellate lawyers should be continually adding to their toolbox.