If you’ve cite-checked a brief lately, you’ve probably concluded that your colleagues are unclear about what they’re doing with brackets at the beginning of a quotation. When do you bracket the opening letter or word of a quotation, and when don’t you?
Let’s recognize first of all that lawyers are the only writers in the world who show the reader that they’ve changed the case of the opening word in a quotation: the practice in most literary fields is to make these changes tacitly. But not in law. We pride ourselves on fastidious accuracy in reproducing a quoted text. I’ve heard literary critics and novelists call our practice “pure pedantry.” But one writer’s pedantry is another’s punctilio.
Lawyers don’t just change the first letter of a quotation. They often change the forms of the words as well. A singular noun or pronoun, for example, might be made plural, or a past-tense verb present. And those are also encased in brackets. But all this editing must be obvious to the reader. And the writer should hope that it won’t also be irritating.
Here’s the point of this LawProse Lesson: if you’re quoting a passage and have the choice of changing something in that passage (with brackets) or leaving it pristine, which should you do? The answer is that you should work hard to avoid inserting brackets. At LawProse, we call this the “no-monkey rule”: if you can monkey with a quotation or not monkey with it, err on the side of no-monkey.
Here’s an example. You could quote a passage in either of these two ways:
(1) The majority opinion stated that “[b]oth of these statutes are special-venue statutes.”
(2) The majority opinion stated: “Both of these statutes are special-venue statutes.”
The second is preferable under the no-monkey rule. The relevant rule is in The Redbook: A Manual on Legal Style § 1.43(d), at 35 (3d ed. 2013): “No change in the case of a letter should be made if it is not required.” And more: “Use bracketing sparingly. A heavily bracketed passage is typically better paraphrased. Too many empty brackets and bracketed substitutions clutter a quotation and dull its impact. Reword instead.”
It’s annoying to see a passage that “[r]ecapitulate[s] the statut[ory scheme] by pockmark[ing] a quot[ation] with these squar[ish] bacill[i].” That’s not just pedantry. It’s really poor judgment: simian-like judgment. Remember: no-monkey.
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