How to Distiguish a Term of Art in Legal Writing

"Quotation, n: The act of repeating erroneously the words of some other."

—Ambrose Bierce

Authors talk about both the sanctity and fragility of the writer-reader connectedness. Sanctity because there is nothing more valuable to a author than getting their reader to connect to them. To trust them. To listen.Fragility because, every bit hard as that connectedness is to forge, it'south sure easy to break. Studies say that we at present have the attention span of a goldfish (or even less). Give your reader an excuse to stop reading, and they'll accept it.

So how practise you keep that connection bustling? A lot of it depends on your writing vocalism: the unique timber that each of united states has when we write. Without a distinct vocalisation, our writing is fungible—the author faceless. Information technology's through our voice that readers see who we are, and whether nosotros're worth listening to.

Our voice coalesces from several components working together: our word pick, word order, organisation, and more. If you advisedly craft your writing vox—using tools like sentence construction and vivid language—the link will snap into place. Your readers will hear your voice as clear equally if you lot spoke aloud. Use the correct voice, and readers will trust you. With their trust won, you tin persuade them.

Given how important our voice is, you would recall lawyers wouldn't give information technology upwardly easily. You'd think that all their writing would exist focused on cultivating that personal connectedness with their reader and grasping tight until the final page.

But many lawyers surrender their vocalism at the offset chance—by quoting the voices of others. They quote and then much, in fact, that readers aren't certain whose voices they're hearing. First, it's a guess in one quoted instance, then some other approximate in another quoted example—perhaps a professor or ii from some block-quoted law review manufactures. And the lawyer'due south voice? Lost in the cacophony.

Quoting is powerful. It allows you to invite other trustworthy voices into your cursory. But there is a way to do it without giving up your vocalism in the process. Great legal writers practice it all the fourth dimension: their distinctive vocalization rings true throughout their briefs, even with plenty of quoting in the mix. I like to think of these proficient writers as the narrators of their briefs, and the quotes they use, the characters. You can always tell information technology's the lawyer telling the story—even when the characters autumn into some dialogue.

To see what I mean, compare these 2 snippets. First, a legal writer who gave up his voice to his quotes:

"The public trust doctrine is an old common law principle, from whence several concepts have arisen." James v. Platt, 314 F.3d 524 (7^th Cir. 2000). "The doctrine proceeds in several steps, although none of them are dispositive on their own." Id. "Occasionally, some have framed this doctrine equally one of separation of powers..."

The lawyer's vocalization is silent. What voices do nosotros hear? Some random judges in other cases.

Compare that with a quoting pro and Supreme Courtroom frequent flyer:

But as this Court explained in American Needle, "that is not what the statute means." Id. To take an obvious case, "while the president and a vice president of a firm could (and regularly practise) human activity in combination, their joint action generally is not the sort of 'combination' that § 1 is intended to cover." Id. at 195. Similarly, when ii companies pool their upper-case letter to form a joint venture to sell a product, the venture'south "pricing policy may exist cost fixing in a literal sense," but "information technology is not price fixing in the antitrust sense." Id.

It's nonetheless quote heavy, but the writer never gives up his voice to his quotes. He both creates a connexion with his reader and uses quoted voices to add to his own credibility.

A few simple techniques volition help yous be a ameliorate narrator, even when you're quoting.

Showtime: Quote simply when you take a reason—you can often say information technology better.

There are plenty of reasons to quote, and if you can articulate ane of them, and then become for information technology. But please, for the sake of your readers, have a reason before dropping quotes on them. Random quoting is not helping anyone.

Some mutual reasons include:

The quoted person'south vocalism—not just the substance of what they are talking about—is helpful to you. When nosotros're talking caselaw, that means a particular estimate in a particular courtroom might exist persuasive to your audience—then you lot want their voice to bring together yours. But don't think that all judges' voices are as persuasive. The judge and court's identity will matter as volition the style of the quote itself.

That said, if you truly believe that someone's voice volition help eternalize yours, you probably want to tell your reader who y'all're quoting so you lot become the benefits. If you don't brand it obvious, don't expect your reader to pick up on a court name in a citation.

These sorts of quotes are almost helpful when a credible source has unusually strong linguistic communication for your position. Take this quote from a motion for summary judgment:

As before, this courtroom should agree with the Ninth Excursion that the public trust is "inalienable"—role and parcel of the state's task of being a land.

Or this one, where the identity of the speaker adds some credibility:

The New York Attorney Full general defends the state's law as one that "falls squarely within the heartland" of straightforward "economical regulation."

You want to let the facts speak for themselves, and that includes important conversations. Perhaps you desire your reader to understand the tone or language someone used. Take this example from a Susman Godfrey cursory earlier the U.S. Supreme Court:

Martinez-Agüero asked to speak to someone in authority, just González said he was the authority "!Yo soy la autoridad!"

You're analyzing the words used in the quoted cloth. When you're parsing statutory or regulatory material, for example, quoting makes sense. When yous're arguing well-nigh whether the words the defendant used are offensive enough to be defamatory—by all ways, quote.

Sometimes you lot want to define a term of art (although, if information technology'south become common usage, you don't demand the quotes). This is more common when it'south a factual term of fine art—similar manufacture-speak.

Initially, greenbacks withdrawals from a strange ATM involved up to four separate fees. The cardholder might pay a "foreign fee" to her banking concern (called the "issuing bank"). Id. at 129a. The issuing bank, in turn, would pay a "switch fee" to the network that candy the transaction, and an "interchange fee" that would ultimately be received by the ATM's operator.

Occasionally, you lot will truly not be able to come upwardly with a better manner to say something than a quote you constitute. If you're working hard to ameliorate your writing, I doubtfulness this will happen often. Only still, it happens. Nosotros have some wordsmiths in courts across the state, and judges sometimes do capture points so perfectly that they're worth stealing.

In the stop, I'm not worried equally much about encouraging you to quote, because virtually of u.s. already do it too much. The bigger takeaway is that you lot tin can usually convey ideas clearer and more persuasively than others. So don't merely quote to quote. Rather than writing like this:

That court stated: "Fraud claims are malum in se and the most deplorable and atrocious of torts given they include requisite elements of falsity and reliance." Illiam 5. Shack, 522 F.2d 155 (3^rd Cir. 2000).

You tin often write amend, like this:

Fraud is the worst of torts: the defendant must lie to a victim knowing she will rely on that lie.

Second, use your ain sentence structure and sprinkle quotes within them—unless you lot truly desire your reader to hear the vox of the source without you interfering.

By maintaining your own judgement structure, you keep your vocalism. Simple as that. Frequently all you really want is a pithy quoted discussion or phrase to brand your points, similar this passage in a SCOTUS cursory:

All states let such dual pricing. Simply a New York statute . . . seeks to control how merchants may communicate the price difference to consumers: It allows merchants to offer "discounts" to those who pay in greenbacks, but makes it a crime to impose equivalent "surcharges" on those who pay by credit menu.

Sometimes you lot want more than of your source'due south voice to come up through, but notwithstanding, keep in control if you can. Check out how this lawyer maintains control amidst a body of water of quotes in a SCOTUS brief:

Of class, "[north]ot every instance of cooperation betwixt 2 people" constitutes concerted action within the scope of Section 1. Rather, courts must undertake a "functional" analysis of "how the parties involved in the alleged anticompetitive conduct actually operate." Where "separate economic actors pursuing dissever economical interests" agree to limit contest among themselves, their carry is "concerted" and subject to Section 1.

You lot can maintain your voice fifty-fifty when you lot are quoting an entire sentence, similar in this Susman Godfrey cursory:

The entry-fiction doctrine derives from the recognition that the political branches of regime are more than appropriately suited to function as gatekeeper of the nation's borders, and thus, "[w]hatever the procedure authorized by Congress is, information technology is due procedure as far as an alien denied entry is concerned."

Third, lead your reader into—and out of—quotes.

Don't just drop readers into the middle of a quote without a parachute. Give your readers a clear agreement of where the quote is going. This does wonders for maintaining your vocalism. So not:

The instance states in pertinent part…

But instead these examples from some trial-court motions:

The Park courtroom explained that leaving out allegations almost the fraud itself dooms the complaint nether Rule 8: "without the fraud allegations, the merits must be dismissed entirely."

Or

Indeed, as the court in that location explained, contracts demand not exist signed by both parties to be enforceable:

Or:

Because the plaintiff had non proved damages beyond those for breach of contract, the courtroom held that the tort claim should accept been dismissed:

Fourth, don't cake quote much. Please. Many readers just skip them.

When readers come upon ane of these gargantuans, many feel a powerful desire to plough their eyes away. For me, it's about physical. But if you must block quote (and I suppose there may be times where it's really needed—like when quoting statutory text, longer dialogues from the record, or some other pivotal linguistic communication), at least give your reader plenty of a preview of the blockquote so that they can skip it if they want to.

If zip else, this introduction will make it less scary for readers to swoop into the cake-quote abyss:

The court drew a line between claims about public trust, which tin can be brought in federal court, and claims about individual nuisance claims, which cannot:

[Block quote explaining this same betoken—on principle, I'k non really inserting the block quote!]

Finally, a couple other notes about quoting.

Accent quotes are not a thing. We can't air-quote in writing. Your argument does non become more persuasive because the other party "blatantly" ignored its obligations.

Don't quote common phrases or adages. Like: These are the times that attempt men'southward souls. They don't need quotes anymore. As I mentioned in a higher place, same goes for common legal terms of art.

Don't use whatsoever other scare quotes. Scare quotes loosely refers to using quotation marks around words or phrases that you think are slang or nonstandard—or when you're being sarcastic or offensive. Greil Marcus points out that scare quotes just make us wait unsure almost our ain writing:

Scare quotes kill narrative. They kill story-telling. And it's not a question of parsing, examining, analyzing, laying bare sacred texts. They are a writer's assault on his or her ain words.

Jonathan Chair rightly suggests that they're even more useless considering it's often not clear what they hateful:

The scare quote is the perfect device for making an insinuation without proving it, or even necessarily making articulate what you're insinuating.

So don't do what this attorney did:

Opposing counsel contends that his client has a "instance," but that is patently faux.

No one is going to find this sort of thing persuasive.

Defined terms rarely need quotes. For that matter, defined terms are usually not needed. If your reader will patently understand what a shorthand refers to—what is the point of a special defined term? Nosotros aren't writing contracts here. And if yous really do need a divers term, the parenthesis lonely is probably enough, correct?

Hoffman Incorporated filed this suit two days ago. Hoffman knew it was belatedly when it filed.

The Trenshion Banking company (Banking concern) knew what information technology was doing.

A final public service announcement: Commas and periods get within quotes (at least in the U.South.). So:

The court explained that the theft of several grocery bags was indeed actionable because, "numberless are non free here."

Joe Regalia is a law professor at the Academy of Nevada, Las Vegas, William Southward. Boyd School of Law and regularly leads workshops grooming legal writing and applied science. The views he expresses here are solely his own and not intended to be legal advice. Cheque out his other articles and writing tips hither.

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