Category Archives: Persuasion

Reducing legal-writing clutter with (cleaned up)

Have you heard of (cleaned up)—the daring new explanatory parenthetical?

Suppose you’re writing a piece of legal analysis and you need to quote a case that’s quoting another case. And suppose you choose to omit some words and alter the original a bit. Under Bluebook rules, you’d cite the case you’re quoting as well as the underlying source, and you’d show every alteration and omission. Those are the rules. So you might end up with something like this:

The Court has previously observed that “[t]he failure to affirmatively establish the fact sought does not ‘prevent the cross-examination from having . . . probative value in regard to the witness’s credibility.’” Henry v. State, 343 S.W.3d 282, 288 (Tex. Crim. App. 2018) (quoting Cawdery v. State, 583 S.W.2d 705, 710 (Tex. Crim. App. 1979)).

But what if you could delete the brackets, the ellipses, and the quotation within a quotation? What if you could omit the underlying source and the parenthetical it’s embedded in? Would that be okay, as long as you told the reader you “cleaned up” what would otherwise be a messy quotation? If you did, it might look like this:

The Court has previously observed that “the failure to affirmatively establish the fact sought does not prevent the cross-examination from having probative value in regard to the witness’s credibility.” Henry v. State, 343 S.W.3d 282, 288 (Tex. Crim. App. 2018) (cleaned up).

That cleaner, neater version was the goal of attorney Jack Metzler when he invented the “cleaned up” explanatory parenthetical in 2017. Metzler has also written a law-review article about (cleaned up). The idea was to make quotations easier to read and to reduce words and bibliographic clutter. So this original—

Above all, “[c]ourts presume that the Legislature ‘ “understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds.” ’ ” Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996) (quoting Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968) (quoting Texas Nat’l Guard Armory Bd. v. McCraw, 126 S.W.2d 627, 634 (Tex. 1939))).

would look like this—

Above all, “courts presume that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems manifest by experience, and that its discriminations are based on adequate grounds.” Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996) (cleaned up).

Metzler’s idea was a hit. Lawyers and judges have started using (cleaned up), and it has appeared in dozens of appellate briefs and judicial opinions in Texas, as well as in other state courts and federal courts. Metzler’s rules for (cleaned up) appeared in the Journal of Appellate Practice and Process, and they’re quoted in full at the bottom of this post. But here’s a quick summary: Using (cleaned up) means that in quoting, the author—

  • has removed extraneous, non-substantive material such as brackets, quotation marks, ellipses, footnote numbers, and internal citations,
  • has changed capitalization without indicating the changes, and
  • has made changes that enhance readability while otherwise faithfully reproducing the quoted text.

Bottom line: using (cleaned up) makes quoting and citing easier and aids reading, too.

But beware. When you use (cleaned up), your credibility is on the line. You’re saying, “I haven’t altered this quotation unethically, and I haven’t done anything dishonest or underhanded.” If you use (cleaned up) to change the quotation in ways that misrepresent the original text, your credibility is gone.

Of course, that’s true of anything you cite or quote: if you’ve exaggerated, fudged, or lied, someone—judge, staff attorney, clerk, opposing counsel—will find you out. So consider (cleaned up) and join me in hoping the next edition of the Bluebook takes note.

Get Wayne Schiess’s books:

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Plain Legal Writing: Do It

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Proposed Bluebook Rule 5.4: Cleaning up Quotations:

(a) Cleaning up. When language quoted from a court decision contains material quoted from an earlier decision, the quotation may, for readability, be stripped of internal quotation marks, brackets, ellipses, internal citations, and footnote reference numbers; the original sources of quotations within the quotation need not be cited parenthetically; and capitalization may be changed without brackets. Indicate these changes parenthetically with (cleaned up). Other than the changes specified, the text of the quotation after it has been cleaned up should match the text used in the opinion cited. If the quotation is altered further, indicate the changes or omissions according to Rules 5.2 and 5.3.

(b) Cleaning up intermediary case citations. In addition to the alterations described in Rule 5.4(a), when a quoted passage quotes a second case quoting a third case, the citation to the middle case may be omitted to show that the first court quoted the third. To indicate this change, retain the quotation marks around the material quoted from the third case and any alterations that were made to the quotation, and insert (cleaned up) before the “quoting” parenthetical citation to the third case. Indicate any alterations that were made to language quoted from the third case according to Rules 5.2 and 5.3.

Jack Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 154-55 (2017).

Saxon-Romance Persuasion

This post discusses two techniques for creating memorable, persuasive prose, which I discovered in Ward Farnsworth’s forthcoming book, Classical English Style. By the way, how’re you doing at spotting Saxon and Romance words? Here’s Quiz 3: name the Saxon alternative for each Romance verb: cogitate, emancipate, imbibe, inundate, masticate (answers at the end).

In persuasive writing, some judges prefer Saxon words:

  • “[The best advocates] will master the short Saxon word that pierces the mind like a spear . . . .” Hon. Robert H. Jackson, U.S. Supreme Court.1

Another example:

  • “A healthy respect for the robust Anglo-Saxon appeals more than does the Latin . . . .” Hon. Wiley B. Rutledge, U.S. Supreme Court.2

We can take advantage of this preference with two persuasive-writing techniques that combine Saxon words with Romance words—relying on differences in tone, formality, and force. The two techniques are the Saxon Restatement and the Saxon Finish.

The Saxon Restatement. With this technique, you state a proposition using primarily Romance words and then restate it using primarily Saxon words (or vice versa). Abraham Lincoln did it in his House Divided speech:

  • “I do not expect the Union to be dissolved; I do not expect the house to fall.”3

Lincoln essentially says the same thing twice: with Romance words (union, dissolve) and then Saxon (house, fall). He names lofty concepts and then brings them down to earth, creating a forceful, memorable couplet.

Winston Churchill did something similar in a famous speech:

  • “I have nothing to offer but blood, toil, tears, and sweat. We have before us an ordeal of the most grievous kind.”4

Here Churchill reversed the pattern, starting with Saxon (blood, toil, tears, sweat) and reiterating with Romance (ordeal, grievous). The real, physical sacrifices are named and then connected to the abstract concepts.

I’ve created examples for modern legal writing by modifying text from appellate briefs:

  • The jury justifiably relied on the photographic evidence because images are unable to prevaricate; pictures cannot lie.

Here, image, able, and prevaricate are Romance; cannot and lie are Saxon. The lofty legal concepts are made concrete. Another example:

  • Albrecht’s only obligation under the order was to remunerate the seller for the vehicle she purchased—to pay for what she bought.

The Saxon Finish. With this technique, you state a single proposition, but after beginning with Romance words, you finish with Saxon. Oliver Wendell Holmes did it well. Here are two examples from his dissenting opinions—the Saxon Finish is italicized:

  • “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”5
  • “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”6

Holmes builds up to a big idea with Romance words; then he states the idea with Saxon words. The result is a forceful wrap-up.

I’ll give it a try:

  • Petrolco asks this court to affirm the trial court’s interpretation of section 216(b) so that punitive damages are grafted onto the text—an interpretation that produces an entirely different class of remedy from mere legislative silence. Petrolco asks too much.
  • The drug would be located in the deceased’s system only under illicit conditions because having the drug is against the law.

Granted, these techniques are used most often used in speech. Still, you should add them to your toolkit for persuasive legal writing. They constitute sophisticated rhetorical devices—they are tools of plain English.

Quiz answers: cogitate/think, emancipate/free, imbibe/drink, inundate/flood, masticate/chew

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[1] Collected in Bryan A. Garner, Judges on Effective Writing: The Importance of Plain Language, Mich. B.J. 44–45 (Feb. 2005).
[2] Id.
[3] Quoted in Ward Farnsworth, Classical English Style (forthcoming).
[4] Id.
[5] Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting).
[6] United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).

Block that block quotation

Considerations for using block quotations.

A survey of the advice on block quotations shows that it’s almost all negative: Don’t do it unless you must, say judges, legal-writing teachers, and experienced lawyers. So we should block block quotations? Why? Two main reasons.

Readers skip them. These readers include judges and their clerks. Admit it—you often skip block quotations when you read, too, so why would your readers be any different? If you put something important in a block quotation, you risk that it won’t be read.

They smack of laziness. Instead of paraphrasing, instead of summarizing, you used a block quotation—you copied and pasted. That’s the impression block quotations give, especially if you overuse them, and that perceived laziness turns readers off.

Despite these concerns, many well-written memos and briefs contain at least one block quotation and sometimes more. So the point is not to ban block quotations but to use them sparingly and effectively. Here are some recommendations.

First, anything you block-quote must be vital. If statutory language is at issue or is crucial to your analysis, a block quotation is appropriate. And sometimes, block-quoting key statutory text can allow readers to get re-anchored in the relevant language by flipping or scrolling back to it without having to consult an appendix.

Likewise, if a binding case contains language of more than 50 words that’s directly relevant to your argument or powerfully persuasive for your position, a block quotation is appropriate. But if you harbor doubts about how vital the quotation is, you probably shouldn’t use a block quotation.

Even after you decide you need that quotation, try to shorten it to fewer than 50 words—just so you can avoid a block quotation. Yes, an embedded quotation of 49 words is still off-putting, but it’s more likely to be read because it isn’t a block.

Now, if the text is 50 words or longer and you’re certain you need it, edit it again so that when block-quoted, it’s not too long. No page-length block quotations, please. One thing more annoying than a block quotation is a long block quotation.

As you edit, show your alterations and omissions per Bluebook rules, but remember: heavy alteration or omission suggests that the quotation might be taken out of context, so go easy. One lawyer recommends that if you’ve heavily edited the block quotation, drop a footnote that contains the full text so readers can check your work.1

As a last step, write an inviting, persuasive lead-in to the block. The lead-in needs to show why the quotation is important or assert something the quotation will prove. In fact, it’s acceptable to paraphrase the quotation’s key point and use that paraphrase as a lead-in. Think of it like this: The lead-in should make the reader think, “Hmm. Is that so? Well maybe I should read this block quotation to be sure.” (Introducing quotations was addressed in this blog here.) One colleague suggested that the text after the block quotation might assert the key point, too. Readers who skip the block will still get the point—twice.

Are you going to strictly follow The Bluebook’s rule on length? In rule 5.2, The Bluebook says you must block only quotations of 50 words or more. But I say you can treat that rule as a recommendation, not binding authority. If you have a shorter quotation you’d like to highlight, you may set it off as a block if you wish.

Ultimately, you’re in charge of your block quotations, so use them sparingly but effectively.

Check out Wayne Schiess’s new book: Legal Writing Nerd: Be One.

1. Maureen Johnson, To Quote or Not to Quote: Making the Case for Teaching Law Students the Art of Effective Quotation in Legal Memoranda, 56 S. Tex. L. Rev. 283, 306 (2014).

Somewhat Qualified, Part 2

Qualifying legal conclusions

Legal matters are often qualified: some conclusions might merit absolutely and certainly, while others deserve possibly and likely. So legal writers justifiably use qualifiers. In my last post, I discussed qualifying factual statements; here I discuss qualifying legal conclusions.

Relying on a survey of legal-writing textbooks, I can report that these are the most commonly recommended qualifiers for legal conclusions:

  • likely
  • probably
  • plausibly
  • possibly
  • should

The most frequently recommended are likely and its forms, with probably coming in second.

Many of the textbooks surveyed discuss the traditional, predictive memorandum, in which a lawyer predicts an outcome that may be less than certain. But the same qualifiers are useful in other contexts, too—whenever a lawyer gives advice or offers a recommendation.

In fact, likely and its forms are part of a useful continuum from positive to negative certainty. At one end is a direct yes or will—a legal result will happen; the outcome is certain. At the other is no or will not. In between are likely and unlikely, which might be further qualified: highly likely, highly unlikely, and so on.

Now the advice.

1. Don’t qualify.

As with much writing advice for adverbs, adjectives, intensifiers, and qualifiers, the best advice is to avoid them when you can. Bryan Garner recommends that legal writers “toss out timid phrases.”[1] What’s more, he calls these qualifiers Fudge Words and offers as an undesirable example, “It would seem to appear that….”[2] That’s a trifecta: three Fudge Words in one clause: would, seem, and appear.

The urge to qualify is natural, but legal writers must be careful of “overhedging.” Granted that legal outcomes are rarely certain, we sometimes overcorrect and qualify too much. It’s a natural tendency, and novices might be particularly vulnerable.

In fact, a colleague in another state forbids his first-year law students to qualify conclusions at all. He believes it forces them to research carefully, analyze precisely, and write clearly.[3] But even if you don’t enforce a prohibition, it’s a good default: don’t qualify. For example (qualifiers are in boldface):

  • Before: A possible lawsuit by Heather Green against her employer, Manzares & Cline LLP, could likely survive a motion to dismiss.
  • After: A lawsuit by Heather Green against her employer, Manzares & Cline LLP, will survive a motion to dismiss.

2. Qualify and explain.

When you decide that you must qualify your conclusion, that you must hedge, do your best to explain why—immediately and concretely. Explaining has two benefits.

You benefit. Forcing yourself to articulate why you’ve qualified your conclusion can lead to insights about the level of qualification. Maybe you over- or under-qualified your conclusion, which you can see now that you’ve had to explain it. Revise accordingly.

Readers benefit. Explaining why you qualified a conclusion serves clients and decision-makers. They already know that likely means better than 50-50 but not a sure thing. By explaining, you make your conclusion more concrete and empower them to ask additional questions or pursue other options.

Here’s an example that uses the qualifier likely and then gives a concrete explanation of why the writer qualified the prediction:

  • A lawsuit by Heather Green against her employer, Manzares & Cline LLP, will likely survive a motion to dismiss. Nonlawyer employees may sue for retaliation because it encourages reporting of illegal activities. But in-house counsel may not sue because lawyers have an independent ethical obligation to report illegal activity. Green, an associate, did not represent her employer as an attorney, as in-house counsel do. She is not under the same ethical obligation to report illegal activity and deserves the incentives provided by a retaliation suit.

So set your default at no qualifications, but when you must qualify, be clear about why.

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[1] Bryan A. Garner, The Elements of Legal Style 35 (2d ed. 2002).

[2] Bryan A. Garner, Garner’s Dictionary of Legal Usage 381 (3d ed. 2011).

[3] Andrew J. Turner, Helping Students Grow Professionally and Overcome Fear: The Benefits of Teaching Unqualified Brief Answers, 25 Perspectives: Teaching Leg. Res. & Writing 3, 4-5 (2016).