Last month I discussed lawyers’ use of literary references and reported on references to 67 well-known authors in appellate briefs filed in local courts. This month I discuss some related topics and then offer some examples with my comments.

But first, a short digression. My reading about literary references in legal writing turned up little mention of biblical references. Is the Bible a legal source? After all, there’s a Bluebook rule for citing it: 15.8(c)(iii). More to the point, is the Bible a literary source? My informal polling of some lawyer friends and colleagues was inconclusive.

So, simply based on my own interest, I decided to do some limited research on lawyers’ use of biblical expressions—that don’t cite the Bible. I searched the Internet for “biblical expressions that people don’t realize are biblical,” and I found a list of 24 expressions¹:

• Bite the dust
• Blind leading the blind
• Drop in the bucket
• Fall by the wayside
• Feet of clay
• Fight the good fight
• Fly in the ointment
• Gird your loins
• Go the extra mile
• Lamb to the slaughter
• Land of milk and honey
• Leopard cannot change his spots
• Letter of the law
• Move mountains
• Nothing new under the sun
• Pearls before swine
• Powers that be
• Rise and shine
• Salt of the earth
• Skin of your teeth
• Suffer fools gladly
• Wit’s end
• Wolf in sheep’s clothing
• Writing on the wall

I then searched for those expressions, filtered for briefs, and narrowed for the Texas Supreme Court, the Texas Court of Criminal Appeals, and Austin’s Third Court of Appeals. The resulting time period was 1994 to the present. The most commonly used expressions on the list, with the number of appearances in parentheses, were these:

• letter of the law (118)
• powers that be (25)
• go the extra mile (15)
• writing on the wall (14)
• fall by the wayside (12)

Back to literature

Continuing my research on literary references in appellate briefs, I searched for the most commonly named literary characters. I relied on a list of 22 well-known literary characters and a few objects, such as the scarlet letter, that I’d found in several Internet searches:

• Alice in Wonderland
• Big Brother
• Candide
• Captain Ahab
• Count of Monte Cristo
• Frankenstein
• Grinch
• Hamlet
• Harry Potter
• Huck! Finn
• King Lear
• MacBeth
• Moby Dick
• Romeo and Juliet
• Scarlet letter
• Scrooge
• Sherlock Holmes
• Shylock
• Three Musketeers
• Tom Sawyer
• White whale
• Wizard of Oz

I ran the same type of search previously described. Here are the most frequently mentioned literary characters:

• Alice in Wonderland (51)
• Frankenstein (34)
• Hamlet (30)
• The Wizard of Oz (17)
• Sherlock Holmes (15)

My recommendations

Given the thousands of briefs filed over the time period I searched, my results show that most briefs don’t include literary references at all—and that’s fine with me.

I advise using literary references sparingly for the reasons stated in previous columns: they aren’t legal authority, though they’re occasionally used that way; they can smack of arrogance or showing off—never a good way to score points with a judge; and literary references bring with them the time, place, and circumstances of the original source—and that’s not always great. Some examples:

One brief from 1996 referred to Lohengrin, who I learned was “a character in German Arthurian legend.”² So no, not the Arthurian legend I had a basic familiarity with from a high-school production of Camelot. No. The German Arthurian legend. Sorry, but for me, that’s too obscure to include in a brief.

Another brief referred to The Merchant of Venice character Shylock and unflatteringly compared the opponent to Shylock: “[Opponent], upset that [Client] claimed he had no cash, became enraged and decided to take a pound of flesh…. [Opponent] was greedy—but even more greedy than Shylock; [Opponent] not only stole [Client’s] money and valuables, but took a pound of flesh also.” Setting aside the overblown tone and the personal attacks, there are the antisemitic overtones of using the character Shylock in this way. No.

Here’s a lighthearted example: Supreme Court Justice Elena Kagan received widespread attention and praise for recently citing a comic book in an opinion: “What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: ‘Spider-Man,’ p. 13 (1962) (‘[I]n this world, with great power there must also come—great responsibility’).”

Stan Lee? Spiderman? That’s interesting and, to some readers, fun. Yet I hesitate to commend it. When you’re a Supreme Court Justice, cite what you want. Until then, use literary references sparingly if at all.

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1. One useful site: https://www.mentalfloss.com/article/61964/18-everyday-expressions-borrowed-bible

2. https://en.wikipedia.org/wiki/Lohengrin

Last month I reported on a study of federal judges’ use of literary references in judicial opinions. This month I report on my own survey of lawyers’ use of literary references in appellate briefs—with a focus on briefs filed in three courts in Austin, Texas.

The research

Professor Gerdy Kyle’s study relied on a list of 67 of the most significant literary authors from the 1800s to the 2000s.[1] I relied on the same list, which can be found at the bottom of this post.[2] I searched the Westlaw database of appellate briefs without any time restriction, and the resulting period was roughly 1994 to the present.

To give my research a local flavor, I filtered for appellate briefs filed in the Texas Supreme Court, the Texas Court of Criminal Appeals, and the Third Court of Appeals in Austin. I quickly learned that I needed to omit the Greek epic poet Homer. He was not cited a single time, although there were more than 130 results for that name: people, places, law firms, and even one reference to Homer Simpson.

After sifting through the results, I had 256 briefs with literary references.

The results

Here are the top ten most frequently cited literary authors in my research, with total number of citing briefs in parentheses:

1. Lewis Carroll (44)
2. William Shakespeare (34)
3. Mark Twain (27)
4. Robert Frost (24)
5. Victor Hugo (23)
6. Charles Dickens (16)
7. John Milton (12)
8. George Orwell (12)
9. Arthur Conan Doyle (9)
10. Aesop (6)

What does it say about appellate briefs in Texas that the most-cited literary author is Lewis Carroll? He was sixth in the study of federal judicial opinions.

Other points of interest: Shakespeare’s most cited play was Hamlet, with 20 citations. No other play had more than three, and there was a citation to King Henry VI, Part 1, which I will confess I’d neither read nor heard of. There were no female authors cited in my research, and only seven on Professor Gerdy Kyle’s list.

Should lawyers use literary references?

The best and most thorough guidance on lawyer use of literary references is in Michael R. Smith’s book, Advanced Legal Writing: Theories and Strategies in Persuasive Writing.[3] Professor Smith supports the use of literary references in persuasive legal documents and offers reasons to use them and reasons to be cautious.

He identifies three reasons that literary references can be useful. First is shared-knowledge theory: if the literary reference is familiar to the reader, the reference helps communicate an idea quickly and efficiently. Second is the idea that if the reference calls up a past literary experience for the reader, it allows the reader to “bring past literary knowledge to bear on the analysis”[4] and enhance the reader’s understanding. Third is classical rhetoric: logos, pathos, ethos. Literary references can an appeal to logic or emotion, or they can strengthen the writer’s credibility.[5]

But he also offers cautions. Avoid obscure literary references—you want to be confident that your reader will understand the reference. Note any cultural differences between writer and reader that could make a reference obscure or, worse, offensive. And keep use of literary references to a minimum—the more you use them, the less value they have: overused references become cliches that lose their persuasive force.[6]

So go ahead with literary references in your briefs; they do have some persuasive force. But ask yourself these questions first: Will my reader be sure to understand—and appreciate—the reference? Is the reference distracting or offensive in some way? Am I just showing off?

Next month, a few examples of literary references in briefs with my reactions.

List of authors

• Aesop
• Dante Alighieri
• Isabel Allende
• Hans Christian Andersen
• L. Frank Baum
• William Blake
• Robert Browning
• Lord Byron
• Albert Camus
• Thomas Carlyle
• Lewis Carroll
• Geoffrey Chaucer
• Agatha Christie
• Eleanor Clark
• Samuel Taylor Coleridge
• Daniel Defoe
• Charles Dickens
• Fyodor Dostoyevsky
• Arthur Conan Doyle
• Alexandre Dumas
• George Eliot
• T.S. Eliot
• Ralph Waldo Emerson
• Euripides
• William Faulkner
• Robert Frost
• Johann Wolfgang von Goethe
• Oliver Goldsmith
• Brothers Grimm
• Nathaniel Hawthorne
• Ernest Hemingway
• O. Henry
• Victor Hugo
• Henry James
• Franz Kafka
• Rudyard Kipling
• C.S. Lewis
• Gabriel Garcia Marquez
• Herman Melville
• John Milton
• George Orwell
• Charles Perrault
• Edgar Allen Poe
• Alexander Pope
• Marcel Proust
• J.K. Rowling
• Carl Sandburg
• Sir Walter Scott
• Dr. Seuss
• William Shakespeare
• George Bernard Shaw
• Mary Shelley
• Upton Sinclair
• Sophocles
• Robert Southey
• John Steinbeck
• Jonathon Swift
• Henry David Thoreau
• Leo Tolstoy
• Mark Twain
• Judith Viorst
• Voltaire
• H.G. Wells
• Walt Whitman
• Oscar Wilde
• Tennessee Williams

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[1] Kristin B. Gerdy Kyle, Big Brother, Othello, and Dogs that Don’t Bark: The Use of Literary Allusion in Federal Appellate Opinions, 2020 S. Cal. Interdisciplinary L.J. 427, 440-51 (2020)

[2] Although it could probably go without saying, the authors are overwhelmingly male. Only seven women appear.

[3] 3d ed. (2012) (chapters 11-14).

[4] Id. at 257.

[5] Id. at 257-59.

[6] Id. at 259-63.

This post reports on research into the use of literary references and allusions by judges in judicial opinions. The research was done by Professor Kristin B. Gerdy Kyle and reported in her article, Big Brother, Othello, and Dogs that Don’t Bark: The Use of Literary Allusion in Federal Appellate Opinions.[1] First the research, then the results.

The research

Relying on lists of the most significant literary works, authors, characters, and settings from the 1800s to the 2000s, Professor Kyle searched Lexis and Westlaw databases of federal appellate opinions from 1997 to 2012. She found 470 federal appellate opinions using literary references during the 15-year period. She found that judicial writers were using the literary references and allusions in four broad ways: factual comparisons of the case’s circumstances or parties to literary circumstances or characters; borrowed eloquence—using a literary reference for variation, reader engagement, and rhetorical force; thematic introductions, which open opinions and set a tone or theme for the analysis; and as support for legal reasoning.[2]

The results

One hundred sixty seven federal appellate judges and justices used literary references during the period, with the top three users being Judge Bruce Selya of the First Circuit, Judge Sidney R. Thomas of the Ninth Circuit, and Justice Antonin Scalia of the Supreme Court. The most frequently cited authors, in order, will not surprise anyone:

• William Shakespeare (26 different plays)
• George Orwell
• Sir Arthur Conan Doyle
• Charles Dickens
• Franz Kafka
• Lewis Carroll[3]

And here are the six most frequently mentioned characters and settings, in order:

• Sherlock Holmes
• the case of Jarndyce v. Jarndyce in Dickens’s Bleak House
• the scarlet letter from Nathaniel Hawthorne’s novel of that name
• Lewis Carroll’s Wonderland
• The fairytale character Goldilocks
• George Orwell’s Big Brother[4]

The 68 literary authors referenced in the judicial opinions are a who’s who of writers, both classic and popular.[5] Besides those named above, here are some of my favorites: Agatha Christie, William Faulkner, Herman Melville, Edgar Allan Poe, J.K. Rowling, Dr. Seuss, Upton Sinclair, and Voltaire.

Should judges use literary references?

Professor Kyle rightly notes that judges may hesitate to use literary allusion in judicial opinions. Why? Three key reasons: Using literary allusion may seem to flaunt the writer’s superior knowledge—never an inviting technique for readers. In addition, their use may alienate a portion of the audience that does not understand the allusion. And some readers opine that literary allusions are too trivial and frivolous for serious endeavors like judicial-opinion writing.[6]

Still, the practice has its defenders, among whom is the legal-writing expert Bryan Garner, who says that literary allusions, “‘if not too arcane, can add substantially to the subtlety and effectiveness of writing.’”[7] Another was the renowned legal scholar Charles Alan Wright, who argued that literary allusions make the written work more interesting, as long as “‘their basic thrust [would] be understood even by readers who are not familiar with [the underlying literary text].’”[8]

Does the same advice apply to practitioner writing? Maybe, but judicial writing differs from practitioner writing in one key way: although judges may desire to persuade their readers, they are ultimately announcing a decision, whereas practitioners are engaged almost entirely in persuasion.

Next month I’ll report on research into literary references in appellate briefs and offer some advice and commentary on their use.

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[1] 2020 S. Cal. Interdisciplinary L.J. 427 (2020).

[2] Id. at 440-51.

[3] Id. at 440-41.

[4] Id. at 441 n.108.

[5] Id. at 454-55 (Appendix A).

[6] Id. at 437-38.

[7] Id. at 438 (citing Bryan A. Garner, A Dictionary of Modern Legal Usage 342 (2d ed. 2012).

[8] Id. at 437 (citing Charles Alan Wright, Literary Allusion in Legal Writing: The Haynesworth-Wright Letters, Scribes J. Legal Writing 1, 1 (1990).