Appellate advocacy is about persuasion – and the most important avenue for persuading appellate judges is a brief that is clear, concise, and readable. So what does an appellate attorney do when confronted by the need to quote a passage that contains ellipses, citations, or alterations in brackets? One less-than-desirable option is to include all of that extraneous material and a long citation string, making for a hard-to-read quote that is central to your case. But there is another option – and it was just endorsed by Justice Thomas last month.
A little bit of background: As discussed over at the Appellate Advocacy Blog, Jack Metzler began a conversation about this issue by suggesting that unnecessary quotation clutter could be omitted if the citation for the quote is followed by the parenthetical “(cleaned up).” The proposal has its supporters, including no less than Bryan Garner, but also its critics. The approach would improve readability, but might become a crutch that encourages appellate lawyers