LawProse Lesson #303: Cleaned-up quotations and citations.
Last week, we discussed the circumstances in which it’s permissible to tacitly change a quotation to regularize it to house style. This week, we’ll discuss another type of cosmetic alteration, something like a bibliographic face-lift: the “cleaned-up” quotation. In recent years, some legal writers have become so obsessed with noting every little bibliographic detail—for example, a parenthetical saying “brackets in original in second instance only” or “ellipsis in original source quoted within quotation”—that there has been an understandable backlash to this cumbersome equipment. Increasingly, we see quotes within quotes within quotes. Signaling such minutiae becomes both tedious and pointless. If a recent opinion quotes an earlier source, using ellipsis dots and brackets, and in quoting that opinion you need to add still more, it’s fair to clean it up and simply signal that you’ve done so. The way to do that is to add “(cleaned up)” at the end of the citation. This signal solves a problem that is bound to grow worse as more and more opinions contain third- and fourth-generation repetitions of quotations. You must not—we emphasize, must not—introduce any change in the substance of the quotation. Only then does the method work. The rationale behind the cleaned-up quotation is that when you use a quotation to draw on the authority of the court you’re quoting, your reader doesn’t need to know that the court itself was drawing on an earlier authority. In effect, the words of the quotation have become part of the new opinion. Not this: The Ninth Circuit has noted that “[u]nder the Westfall Act, federal employees receive absolute immunity from suit ‘for their “negligent or wrongful act[s] or omission[s] . . . while acting within the scope of [their] office or employment.”‘” Jackson v. Tate, 648 F.3d 729, 735 (9th Cir. 2011) (quoting Green v. Hall, 8 F.3d 695, 699 (9th Cir. 1993) (quoting 28 U.S.C. § 2679(b)(1))). But this: The Ninth Circuit has noted that under the Westfall Act, “federal employees receive absolute immunity from suit for their negligent or wrongful acts or omissions while acting within the scope of their office or employment.” Jackson v. Tate, 648 F.3d 729, 735 (9th Cir. 2011) (cleaned up) (referring to 28 U.S.C. § 2679(b)(1)). Thanks—and praise—are due to Jack Metzler of Washington, D.C., who pioneered this practice.