The Art of (Not) Quoting

Quote Sparingly.

Judges and senior attorneys want you to summarize the cases for them. Quote from cases only if the language is extremely significant.

Introduce Quotations with Substantive Sentences

The sentences that introduce your quotation should summarize the quoted language. For example, introduce a quotation with a sentence, such as In Smith v. Jones, the First Circuit also outlined the factors that determine whether more than a corrective disclosure is required. An effective introductory sentence spares the reader the agony of actually reading the quote. Avoid introducing quotations with bland phrases that tell nothing about the material to follow, such as In Smith v. Jones, the court held that. . . .

Avoid long quotations.

Long quotations beg not to be read. Readers love block quotes because the block format highlights just what part of the page they can skip. And skip it they will. If you must include a long quote, consider breaking it up into smaller parts so that you can keep it in your paragraph. Begin with The court stated that. . . . Continue with The court explained that. . . . Conclude with The Court cautioned that. . . .

But if you must quote a long passage, put it in a block.

If you must quote a passage of fifty words or more, set off that quote in block format: double space before and after the quote, single space within the quote and indent five or ten spaces at the left and right margins.

-Marie

P. S. My Book, The Lawyer’s Essential Guide to Writing: Proven Tools and Techniques, contains many more scintillating tips like this!

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Weave Adverse Case Law into Your Argument or Analysis

Happy New Year! Let’s continue our series on how to present case law. We’ve talked about the lingo for discussing patterns in the case law. We’ve noted that skilled advocates don’t just list cases, they summarize a body of law and give a global picture of the research. And we’ve also talked about the three key issues in any case discussion. (Remember? Facts. Facts. Facts.) Now let’s talk about how to handle the elephant in the room—adverse case law. Your ethical obligations require that you mention it, but how do you talk about it without hurting your case?

Adverse case law rarely deserves a dedicated introductory sentence that flatly states its holding. If you break adverse case law into a separate section or paragraph, you may find yourself arguing the other side’s case, no matter how carefully you distinguish that law. Instead, weave opposing authority into your argument and present it offensively by using transitional words such as however and although.

For example, if you are arguing that the corporate veil should not be pierced, you should not begin your discussion of a case allowing a pierce by stating, In Jones v. Nasty Corp., the court pierced the corporate veil where Nasty Corp. was undercapitalized. Rather, explain that Although Jones v. Nasty Corp. allows a court to pierce the corporate veil where a corporation is undercapitalized, our client—unlike Nasty Corporation—is adequately capitalized. Couching troublesome authority in an although clause helps dilute its impact. For example, you might say that Although courts will pierce where the corporation has committed fraud, Client X never misrepresented its identity.

If you “wrap” your discussion of opposing authority with language that helps your case, you will meet your ethical obligations without losing control of your argument.

-Marie

P. S. My Book, The Lawyer’s Essential Guide to Writing contains many fascinating tips like this!

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The Three Key Questions in Any Case Discussion: Facts. Facts. Facts.

Let’s continue our series on how to present case law. Last week, we talked about how skilled advocates don’t just list cases, they summarize a body of law and give a global picture of the research. Earlier, I suggested lingo for discussing patterns in the case law. Today, let’s talk about the three key issues in any case discussion. Facts. Facts. Facts.

Focus on the Factual Results of the Cases.

Judges and senior attorneys already know the law cold. Your job is to explain how the law plays out in the real world of people and facts. Therefore, focus on the facts and results in the cases, rather than vague statements of law.

For example, in its brief opposing certiorari in the Ten Commandments case, the ACLU summarized a huge body of First Amendment law in one masterful paragraph—a paragraph that focused on the results of the cases. There, the ACLU argued:

Where “a governmental intention to promote religion is clear,” Edwards v. Aguillard, 482 U.S. 578, 585 (1987), this Court has not hesitated to hold the challenged conduct unconstitutional. Thus, the Court has invalidated Louisiana’s creationism statute, Aguillard; struck down a Kentucky law requiring the posting of the Ten Commandments in public schools, Stone; struck down Alabama’s moment of silence statute, Wallace v. Jaffree, 472 U.S. 38 (1985); and held unconstitutional the mandated daily reading of Bible verses and the Lord’s Prayer in public schools, Abington Township Sch. Dist. v. Schempp, 374 U.S. (1963). Significantly, in each of these cases, this Court held that the challenged conduct was motivated by a religious purpose, and disregarded the government’s assertion of a sincere non-religious purpose.

Brief of ACLU in Opposition to Petition for Writ of Certiorari, McCreary v. ACLU, 545 U.S. 844 (2005) ( ACLU Brief, page 24-25).

Explain the Facts of Every Significant Case You Cite—Even If You Must Use a Parenthetical to Do So.

Never discuss a significant case without explaining its facts. In an ideal world, we would discuss all cases in prose and do away with cumbersome parentheticals. But parentheticals remain a useful, if imperfect, tool for preserving large bodies of research. They are the key to writing deep, substantive papers because they flesh out the factual and procedural context in which cases are decided and condense vast amounts of research into a small space.

So write a factual parenthetical every time you cite a case but don’t discuss that case in prose. (But you do not need factual parentheticals for cases that discuss boilerplate propositions of law, such as the standard of review or the burden of proof.) Although parentheticals admittedly slow the flow of your paper, the trained eye knows to peruse them quickly and their substantive benefit far outweighs the stylistic hiccup they create. Parentheticals are not perfect but using a parenthetical is better than losing the information.

Make Your Parentheticals Factual.

The job of a parenthetical—like the job of sentences—is to add new substantive information. Your parentheticals will add value if they explain what actually happened in the cases.

So if you have discussed the holding of the case in text, your parenthetical must do more than simply restate the holding. The best parentheticals summarize key facts about a case or the result, as in:

Treadway Companies, 638 F. 2d at 380 (refusing to require cooling-off period where tender offer occurred four months after corrective disclosure).

If needed, use parentheticals to explain why you cite a case, as in:

W. A. Krueger Co. v. Kirkpatrick, Pettis, Etc., 466 F. Supp. 800, 803 (D.C. Neb. 1979) (action for damages is limited to actual sellers and purchasers).

If you are using a parenthetical for multiple purposes, such as explaining facts and reasoning, you can keep each part of the parenthetical distinct by separating the two parts of the parenthetical with a semicolon, as in:

General Aircraft v. Lampert, 556 F.2d 90 (1st. Cir. 1977) (action by target corporation under Section 13D; finding irreparable harm would occur only if investors were allowed to continue activities without correcting schedule 13D).

Parentheticals should also explain the procedural result of the case, not simply the rule of law, as in:

General Aircraft v. Lampert, 556 F.2d 90 (1st. Cir. 1977) (requiring shareholder to amend its Schedule 13D and enjoining further acquisitions until amendment was filed).

If a case summarizes a body of law, give an overview of the law and cite to the summary case with a parenthetical stating (collecting cases). Citing to the case that gives the overview of authority saves you the need to cite the historical cases individually. A parenthetical simply stating (same) may be appropriate in a string citation.

Don’t be wimpy.

Don’t waste a parenthetical on simply quoting the part of the case that supports your previous prose sentence. The quote adds nothing new and suggests that you don’t trust your own prose paraphrase.

-Marie

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Coming next: The Art of Quoting Not Quoting.

P. S. from the Shameless Self-Promotion Department: My Book, The Lawyer’s Essential Guide to Writing: Proven Tools and Techniques (ABA, 2011) is chock full of tips like this and it would make a wonderful gift for your lawyer friends.

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Techniques for Talking About Case Law

Handling case law is an art form and the lawyer who can do it well is not only an advocate, but an artist as well. So let’s talk about the techniques that skilled advocates use to present case law—techniques that lead to a deep and concise overview of large bodies of research. Their secret? Skilled advocates give an overview of a body of law, rather than simply listing cases.

Give a Global Picture of Your Research

Often the most important part of your research is what you did not find. If no court has ever ruled against your position, then you miss an opportunity if you simply cite the 1,001 cases that favor your position. Emphasize the absence of any opposing authority by stating, for example, that No court has ever declined to find personal jurisdiction over a defendant who maintained an office within its jurisdiction. If only two cases go against you, emphasize the paucity of opposing authority by explaining Only two reported cases have ruled that . . . . If the authority is split, search for the factual distinctions and, if you can, explain that The most analogous cases hold that . . . . If you are writing a research memorandum and no cases go your way, you must flatly disclose the absence of helpful authority.

Discuss the Most Recent or Most Important Law First

Unlike in the fact section of a brief—where we often present the detailed facts in chronological order—you should not present your cases chronologically. Instead, give your readers a snapshot of current law by beginning with the most important or most recent cases. Provide historical context only if that context helps explain current law.

Learn the Lingo for Talking About Cases

Discussing case law is an art form and shorthand phrases make your job easier, as long as you don’t slip into legalese. A case can be distinguishable, controlling, relevant, analogous, seminal or binding. Discussing patterns in the case law is even more challenging so certain well-used phrases—such as this court squarely addressed or this court has long recognized—are helpful. (Click here for a list of the Lingo for Talking About Cases.)

Discuss Key Cases in Prose, Rather Than in Parentheticals

Your most important cases should always be discussed in prose, rather than in a parenthetical. The decision to discuss a case in prose shows that you assign a higher value to that case than to the cases that you discuss in parentheticals. But even if you discuss a case in prose, you might still need to write parentheticals to flesh out minor facts or the procedural history of the case. (And, yes, you should use parentheticals to share the facts of minor cases.)

Use Signal Phrases Every Time You Introduce a New Case

Your readers want to know immediately whether a case is the leading or most analogous case or whether it narrows a concept, states a different position, simply provides an example or repeats earlier information. Therefore, always assign a value or weight to the case by using signal phrases that show why you are citing that case. Use phrases such as in the leading case, in an analogous case, in particular, by contrast, however, for example, recently, also or again. But, again, be careful not to begin every sentence in a paragraph with a signal phrase or you will compromise the rhythm of your writing.

Summarize Case Law Succinctly

In Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 748 (2007), Justice Roberts summarized the law before Brown v. Board of Education of Topeka with a gifted economy of words. He explained simply, “Before Brown children were told where they could and could not go to school based on the color of their skin.” 551 U.S. at 747. If Justice Roberts can reduce decades of constitutional jurisprudence to a few pithy words, you should be able to discuss a statute-of-limitations case or the doctrine of piercing the corporate veil in a sentence or two.

We’ll talk another time about how to discuss the facts of cited cases. Prose or parenthetical? Stay tuned ….

-Marie

P.S. My Book, The Lawyer’s Essential Guide to Writing: Proven Tools and Techniques (ABA, 2011), is full of fascinating tips like this. Order it here.

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Italicize case names. Yes, italicize. Don’t underscore.

Old habits die hard. When I suggest that lawyers italicize case names, they often react in horror. But the modern preference is to italicize case names, rather than underscore, although either is correct. I know. You still don’t believe me. Since my word on this issue may not be enough to slant you (pun intended!) in the proper direction, here’s the reason why.

In the old days (before computers), lawyers underscored case names and introductory signals because typewriters and early word-processing programs could not italicize. So briefs that were professionally printed used italics, but briefs that were typed in-house had to make do with underscoring. Although most style manuals say that case names may be italicized or underscored, it makes sense to drop the obsolete convention of underscoring now that typewriters are being turned into jewelry.

All the authorities agree on this. The style guides still allow underscoring out of deference to anyone who may still be typing on an old typewriter. Contrary to popular perception, The Bluebook does not require underscoring. It gives the option of either underscoring or italicizing (see bluepages at front, B13 on typeface conventions), but it then confuses the issue by using underscoring throughout. (Did you expect anything but confusion from The Bluebook?)

The ultimate guru on all things related to the design of legal documents is Matthew Butterick. (His book, Typography for Lawyers, is groundbreaking. You should buy it.) He insists on italics for case names and also explains that the Bluebook does not require underscoring.  Bryan Garner also endorses italics. And Supreme Court briefs use italics. Here’s an example: Supreme Court Brief using italics.

Italics follow the design principle of keeping the fonts on a page as simple and consistent as possible. Italics are just easier on the eye.

So tilt away!

-Marie

P.S. My book contains many other fascinating tips like this.

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A Lingo for Talking About Cases

Discussing case law is an art form and shorthand phrases make your job easier, as long as you don’t slip into legalese. A case can be distinguishable, controlling, relevant, analogous, seminal or binding.

Discussing patterns in the case law is even more challenging. Try these frequently used phrases:

• In Smith v. Jones, this Court squarely addressed. . . .
• The First Circuit has long recognized. . . .
• No reported cases hold that. . . .
• Only one reported case holds that. . . .
• The most analogous cases hold that. . . .
• The Ninth Circuit has long expressed a strong preference for. . . .
• Although this Court has expressed a strong preference for . . . , it has frequently allowed . . . under similar circumstances.
• This Court has entertained. . . .
• This Court has considered. . . .
• This Court is poised. . . .
• The Supreme Court has not been sympathetic to. . . .
• This Court imposes. . . .
• This District follows a recent trend. . . .
• The court cautioned against. . . .
• No court has directly addressed. . . .
• As a general rule, the courts have. . . .
• That decision represents an extreme departure from. . . .

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Make Your Citations User-Friendly: Avoid Using “Supra”

Use the Book Reference, Rather than Supra

Don’t make your readers look back in your paper to piece together a complete citation. Your goal should be to keep your readers’ eyes moving forward and to make every citation as user-friendly as possible. Supra citations—such as Smith, supra at 222—send your readers scurrying back through your paper to find the original book reference. They stop your readers eyes from moving forward and interrupt the pace of your writing.

Don’t send your readers on a wild goose chase. Instead, repeat the book reference and say Smith, 400 F.2d at 222. If your readers are likely to know the name of the case, skip the name and simply say 400 F.2d at 222.

Use Id. Citations—But Not Too Many

Even though id. citations may require your readers to look back in the paper, id. citations are less troublesome than supra citations. Because id. citations refer to the immediately preceding citation, your readers do not have to wander far to complete the citation. And id. citations are so short that they are rarely disruptive. So, even though you should substitute the book reference for supra citations, you can leave your id.  citations alone.

But use id. citations as an editing signal. Id. citations at the end of two or more consecutive sentences usually mean the sentences can be combined.

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So make life easy for your readers. Don’t send them hunting for basic citation information.

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Avoid Restating the Other Side’s Argument

Don’t fall into the trap of restating the other side’s argument as a prelude to attacking that argument. A true advocate never dedicates a sentence to explaining the opponents’ position.

For example, if the issue is whether your client has defrauded customers, don’t dedicate a sentence to the other side’s argument that “Courts will pierce the corporate veil where the corporation has defrauded its customers.” Instead, restate the argument from your client’s angle: “The courts will not allow a pierce where a corporation is adequately capitalized unless there are clear markers of fraud.” Or work opposing authority into an “although” clause to avoid dedicating a whole sentence to discussing that authority. For example, say “Although courts have pierced the veil where corporations have defrauded their customers, our clients never acted fraudulently.”

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Make your opponents do their own work. Don’t do it for them.

A better way to say “I couldn’t find any relevant cases. . . .”

When we research obscure or novel issues, we often find that there are no cases on point. Many lawyers then explain this lack of case law by writing, “I could not find any relevant cases.” That phrasing suggests that you lack confidence in your research. Why couldn’t you find any relevant cases? Did you not have enough time? Did Westlaw or LexisNexis self-destruct before you finished researching? Where did you look?

If you didn’t find it, it’s probably not out there. Since you are responsible for only the reported case law, simply say “No reported cases hold that. . . .” or “No reported cases address the issue of. . . .” These phrases show that you are confident about your research, even though you came up empty handed.

Always try to convey confidence and authority in your writing.

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Think of Your Cases as Places

Shorthand phrases allow us to avoid cumbersome references to case law or procedural history. Think of your cases as places and use “here” to refer to your client’s case and “there” and “where” to refer to the precedent, as in “Here, the court held that . . . . ” or “There, the court refused to . . . .” Avoid phrases such as “the instant case”or “the present case.” They are clunky legalese. Simply say “this case.”

So think of your cases as places—although they might not be places you want to visit for long!

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Citations: in text or in footnotes?

Put citations in the body of the paper—not in footnotes. Yes, citations are clunky and disruptive. But they are also a substantive part of legal writing because they show the weight and authority of the case you are citing. Therefore, case citations belong in text, where your reader can find them easily.

Some recent opinions follow a trend to move book and page references to footnotes. Although moving book and page information to footnotes may make the paragraph itself more readable, dropping citation information to footnotes violates the essential design principle of proximity because it requires the reader to jump back and forth between footnote and text to piece together the complete citation. Thus, footnotes defeat the goal of keeping the reader’s eyes moving seamlessly through the paper.

So if the case law is important to your paper—and the case law is essential in any research memorandum or any paper that will be filed in court—keep your full citation in prose. Although citations admittedly disrupt the flow of legal writing, it is more disruptive to require the reader to jump between text and footnote.

In business law papers, put cases in footnotes if your colleagues do so. Business law papers routinely drop citations to footnotes because transactional attorneys may be less concerned about the case law than about the structure of the deal. Follow the leader and use the format your colleagues use.

Never use endnotes. Citations should never go at the end of your paper. It’s just too far for the reader to travel.

Expect citation format to change for the better. As we move to a paperless world and our readers grow accustomed to reading briefs and memoranda online, our method of citing cases should change. My book talks about the changes that we should expect to see. . . .

Quote with Care.

Quote sparingly. Judges and senior attorneys want you to summarize the cases for them. Quote from cases only if the language is extremely significant.

Introduce quotations with substantive sentences. The sentences that introduce your quotation should summarize the quoted language. For example, introduce a quotation with a sentence, such as In Smith v. Jones, the First Circuit also outlined the factors that determine whether more than a corrective disclosure is required. An effective introductory sentence spares the reader the agony of actually reading the quote. Avoid introducing quotations with bland phrases that tell nothing about the material to follow, such as In Smith v. Jones, the court held that . . . .

Avoid long quotations. Long quotations beg not to be read. Readers love block quotes because the block format highlights just what part of the page they may skip. 

Block long quotes. If you must quote a long passage of fifty words or more, set off that quote in block format: double space before and after the quote, single space within the quote and indent five or ten spaces at the left and right margins.

Think of your cases as places.

Lawyers use shorthand to avoid cumbersome references to case law or procedural history. Think of your cases as places and use here to refer to your client’s case and there and where to refer to the precedent, as in There, the court held that . . . . or Here, by contrast . . . . Avoid phrases such as the instant or present case. Simply say this case.

Parentheticals: Should I or Shouldn’t I?

It’s always better to discusses cases in prose, rather than in parentheticals. Prose is cleaner and more readable. Also, the decision to discuss a case in prose or parentheticals signals that you have assigned a certain value to a case. Your reader will assume that you discuss the most important cases in prose and that cases discussed in parentheticals are less important. Read the rest of this entry »