WARNING: This episode contains opinions of a law-nerd nature. Discretion is advised.
Have you ever encountered the parenthetical “(cleaned up)” at the end of a case citation? By now over 5,000 judicial opinions in nearly ever jurisdiction have used it, including the U.S. Supreme Court. So it’s time you got acquainted with it.
The credit (or blame) for introducing this new device goes to Jack Metzler. Jack shares how he came up with the innovation over several long moments of deliberation on Twitter (specifically: about 90 seconds). But unlike most tweets, Jack’s idea flourished into a law review article that now stands as the 2nd most-often cited article in judicial opinions of all time (and only 40 citations behind Justice Louis Brandeis’s 1st place paper).
Jack subjects himself to the following questioning:
❔What does (cleaned up) even mean? Answer: It means you can start a quote with a capital letter without using those stupid ugly square brackets, without having to explain it. And other stuff like that.
❔Ok, so judges are using it. But will judges trust lawyers to use it faithfully? Answer: Judges already don’t trust lawyers, so I don’t even understand your question.
❔I think the judges want to see the quote exactly as it appeared. Answer: That’s not even a question. And no one is forcing you to use (cleaned up).
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Jeff Lewis 0:17
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:19
And I'm Tim Kowal all both Jeff and I are certified appellate specialists. But as uncertified podcast hosts we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, please recommend this podcast to a colleague if you find it helpful.
Jeff Lewis 0:35
And before we jump into this week's discussion, we want to thank casetext for sponsoring our podcast. casetext is a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. casetext relied on by 10,000 firms nationwide from solo practitioners to amlaw 200 firms to in house legal departments. In March 2023. Casetext launched co counsel the world's first AI legal assistant co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy listeners of the podcast enjoy a special discount on casetext basic research at casetext.com/calp. that's casetext.com/calp.
Tim Kowal 1:14
All right, Jeff, so this is the episode you finally done it. You've done Jack Metzler to the podcast today. Now Jack is an appellate attorney and at the District of Columbia office of disciplinary counsel, where he's a Senior Assistant disciplinary counsel but our audience of legal and appellate nerds no jack is the proprietor the originator of the cleaned up parenthetical before that, or maybe in parallel with that Jack is also the author of Posner thoughts annotated, an annotated and expanded version of Richard Posner's anonymous fake Twitter account called Posner thoughts, which purports to tweet judge Posner's thoughts within Twitter.
Jack Metzler 1:51
I'm sorry to interrupt you, but it's Posner. I can't You're hurting my ears.
Tim Kowal 1:55
Then The Nerdery already begins. Jack Cohen Jack judge Posner's thoughts within Twitter's 140 care limit. Judge Posner himself admits to reading the account with great enjoyment, finding it extremely funny some examples of Posner's thoughts. My preschool was highly regarded and even more so once I entered. I never graduated from high school didn't need to. I went to Harvard Law School because Yale seemed too easy. And back then a Supreme Court clerkship was no real Biggie among Jack's other risky ventures. As I mentioned, he holds the credit or blame for proposing in 2017 the use of the parenthetical cleaned up after citations to cases and quotes that have been cleaned up or as all argue Bowdler eyes. Since then, well over 5000 opinions for many courts, including federal and state, appellate and trial courts have adopted Jack's cleaned up parenthetical just a bit of the origin of cleaned up Jack had published an essay in the Journal of appellate practice and process on the parenthetical cleaned up citations some years ago. Apparently, Brian Garner has endorsed the practice and the most prominent cleaned up user is Supreme Court Justice Clarence Thomas, who included it in a February opinion was up February last year 2022 Jeff or Jack? I think that's right. And according to information that Jack gave the ABA journal in March 2021, the cleaned up parenthetical has appeared, as I said in over 5000 judicial opinions. Well, Jack Metzler welcome, I think to the podcast.
Jack Metzler 3:30
Thank you. Glad to be here.
Jeff Lewis 3:32
Glad to have you, Jack.
Tim Kowal 3:34
Yeah, we only got you got one superfan and one doubter jack here. So let me ask you to get started here. When you're not busy needling, federal appellate judges and driving conversations of legal and appellate nerds everywhere. I assume you're doing some actual legal work somewhere. Tell us about your legal practice.
Jack Metzler 3:55
Stir. So I have since the beginning of the year, I'm the assistant Senior Assistant disciplinary counsel for appellate litigation for the DC Office of disciplinary counsel, which is in our system, the the prosecutor of attorney discipline cases. So we've got people who prosecute those in before hearing committees in their two levels of appeal before our board professional responsibility and DC Court of Appeals and I am in charge of the our appellate section.
Tim Kowal 4:27
Okay, and what appellate courts are your most typically appearing?
Jack Metzler 4:30
So now I'm exclusively in the DC Court of Appeals before I had this job. I was at the Federal Trade Commission, where I did appeals in all of the regional Courts of Appeals and the Supreme Court. Well, I shouldn't say all, I didn't get to all of them, but a lot of them.
Tim Kowal 4:46
Now, does the DC courts of appeals embrace the use of cleaned up?
Jack Metzler 4:50
Yes. Well, you know, along with every Federal Court of Appeal, about half the state highest courts of appeals, and I think All or maybe all but one US district courts have used it one judge or that not every single judge. But but every court, there may still be one outlier. I didn't check today. Okay.
Tim Kowal 5:11
Bill, it's like to ask if you've if you've got an interesting war story or a mistake that you've seen opposing counsel make that stayed with you over the years, something that you'd like to? Or maybe if you are mentoring a young lawyer, something you'd like to pass on and say, make sure whatever you do, don't do X?
Jack Metzler 5:27
Well, boy, that's tough to do that within the cotton, the most recent things to think of are things I shouldn't talk about, because they are ongoing. Yeah, let me put a pin in that. See if
Tim Kowal 5:39
we can bookmark that. Mine is don't ever use the parenthetical cleaned up, but our mileage That's going too far. All right. All right. Well, let's get right into it. I mean, I think when we post this episode, Jeff, we're gonna have to put a prominent nerd alert on it. Because you know, if you are aware of the parenthetical cleaned up, then this is going to be of great interest to you. If you've never heard of it, then maybe just go on living your life. But I wanted to give a quick origin story. Or maybe Jack, would you like to give the origin story I thought maybe you've given so many of these podcasts that you are tired of it by now. But I was interested to learn that you have not been sought out by so many other appellate nerds like Jeff and me to talk about the origin story of cleaned up, would you kind of give us a rough overview of how it originated
Jack Metzler 6:21
there. So it was so 2017 and spring, it was March. And as I recall, it was late at night, and I was reading on my phone
Tim Kowal 6:32
was getting very literary, was it a balmy day.
Jack Metzler 6:37
It was a dark, not stormy night. Anyway, I was reading on my phone, a decision that had come out that day. And it was one that that people had been talking about on Twitter. And I think it was one of the immigrant it might have been like the DACA case, or one of those, it had come out from either like a district court in Texas. And as I was reading along, I came to this section where I recognized this problem, the author, the judge was quoting cases from that had been quoted before many times. And you could just see in the writing the struggle that he was having with all of this extraneous brackets. And, you know, sometimes there was like an emphasis that had to be removed, or emphasis that was added. And it had to be, you know, like, the second case back had added an ellipsis or something like that, you know,
Tim Kowal 7:31
all those lovely square brackets everywhere.
Jack Metzler 7:34
Right? And so I recognize this problem deep, deep in my soul from encountering it many times myself. And I was like, you know, what, I know, what this judge is going through? And why do we even bother with any of this? You know, my, the thing is, if you're going to quote, a case, and you're going to quote the case, because the Court said it now the court quoted something else, fine. But judges don't. Like you never say the holding of a case is we hold that, you know, bracket, lowercase a, l l, you know, men are created
Jack Metzler 8:17
equal. Yeah. Imagine if we had to talk like that.
Jack Metzler 8:21
Right. Right. So that's not the holding, when the court holds something, it holds, like the words not that the extra stuff. And so you know, if that's the purpose, I thought, then why do we have to do all that? And I'll be honest with you, this is a topic I think that people think about most of all, when it comes to cleaned up, is they think that it sounds is the biggest objection. It sounds too colloquial. And I spent a good 90 seconds thinking about what would be the best, you know, phrase to use. And, you know, I rejected some things. I came up with some others. And I just said, Yeah, you know, I think cleaned up pretty much does it. And so then it was late at night. But nevertheless, there was a good response on Twitter, like an enthusiastic response on Twitter, I would say, and so like, within the next day or two, I wrote up, you know, I sort of flushed the idea into a couple of pages, and then later turned it into the article, which eventually was published.
Tim Kowal 9:16
All right. All right. So we got the origin story cleaned up is 90 seconds of deep thought followed by an enthusiastic response on Twitter. Right. All right. And then just for our audience, who maybe is not aware of, it hasn't come across this thing. This is a cleaned up parenthetical. What it does, basically is, as Jack mentioned, when you got a quote that you want to use in a case, but it's got a lot of these ungainly, special characters, square brackets, and ellipses and things. And it's not really germane to the quote that you want the court to read you to strip all that out. And then when you cite the case, at the end of the case, you put a parenthetical that says cleaned up, and the purpose is to allow the author to remove non substantive material like brackets ellipses quotation marks, footnote call numbers and internal citations or to will change letters case without placing the change letter in brackets. And to omit any reference to an intermediate decision in a chain of at least three decisions like when quoting a decision that quotes a second decision that quotes a third decision, this recursive nightmare that sometimes happen, you can just omit reference to the second decision, and then just followed up with the cleaned up. And if the judge is if your reader is curious, that cleaned up parenthetical lets them know. Okay, well, if I want to explore further and see what exactly has been changed, I can go back to the the author's least telling me that something has changed. So if I find anything fishy, I'll just go check the work.
Jack Metzler 10:34
Exactly right. And the sound of that mean, the the best analogy is, you know, the ellipsis, we don't tell people no style guide tells you what you're supposed to what you're allowed to, and not allow to leave out when you have an ellipsis. You're just, you know, relying on the court to trust you. Or if not trust them to verify they can always go and see what you left out. And I think, actually, if we want to go back, that's one I've seen before to your original question. Do not young attorneys ever do something like using ellipses to take out the word not? That's a bad idea? And although I haven't seen that one exactly, I have seen some unscrupulous uses of, of an ellipsis. And I would not recommend that I would recommend against it.
Tim Kowal 11:19
What about the use of cleaned up to chain to substitute a party name with the party designation, like instead of using Smith, take out Smith and replace it with plaintiff? Would that be an acceptable use of cleaned up?
Jack Metzler 11:32
No, no, I mean, any change to any words is not allowed? You would. So the idea, like I said before, is if I should also say this is only for courts for quoting a court. It's not for statutes, or books or articles or anything else. And because the justification is when you're quoting a court, you care what the court said, you don't care about. Honestly, it doesn't even matter that the court quoted someone else. Because ideally, you're it's that's the court, you know, the court that you're quoting is the one you care about. If the Third Circuit said it, well, maybe the Fourth Circuit said at first, but you're in the Third Circuit, and you want the Third Circuit to know that they said it. So it doesn't really matter this that the there's no like obligation to tell the court that, you know, the Fourth Circuit had the idea first, for example.
Tim Kowal 12:24
Yeah. Now that that makes sense, when you put it that way that it's when you're talking I imagine what if the the judge who authored the opinion was reading the opinion from the bench as, for example, the Supreme Court justices will sometimes do, and when they read quotations, they're not going to indicate whether there's Oh, and then begin a single quotation, and then close with a double quote, they're gonna omit all that when they read it. And so when you are putting a quotation in your brief, maybe you just put the words in there, the syntax is not really important. You just transcribe it as if the judge had read it speaking, rather than that in writing with all of the symbols. Yeah,
Jack Metzler 13:00
I think that's a pretty good analogy. I never thought of the speaking out loud, you know, idea before.
Tim Kowal 13:05
Yeah, we're reminded that the Old Testament Scriptures or the the Torah didn't, it didn't have chapter numbers or anything, I don't think it had a lot of the apostrophes and other syntax, they just had the words and a lot of that was not added until much later on. So maybe it's similar to thinking there that all of these special characters on our keyboard are really just flourishes that we add in the editorial process, and they could be edited away by a subsequent author without any substantive change.
Jack Metzler 13:31
Well, I can't speak as to that I think don't change the periods or commas, at least not with cleaned up.
Tim Kowal 13:38
Okay, so you're a coma purist?
Jack Metzler 13:40
Well, that's part of the text. It's not when I say punctuation, I just mean brackets and the stuff that really doesn't change.
Tim Kowal 13:46
Yeah. Yeah, that can set off and signal in clauses and things like that. So that's, that's a good point. All right. So that's the story behind cleaned up. Can you tell us what's been some of the controversy behind it? You mentioned? You know, obviously, we've gotten well over 5000 opinions that have used it. So many judges obviously have felt comfortable using it, including the Supreme Court, at least we know, Clarence Thomas, Justice Thomas has felt comfortable using it in the Brownback decision. Do you know are you aware, when I asked you, if courts are adopting it or embracing it? You know, we could talk about how many courts are using it in their own opinions. But does that mean that the courts are inviting practitioners to use it is there a difference between a judge using cleaned up the cleaned up parenthetical and attorney practitioner using the the cleaned up parenthetical in their briefs? Well,
Jack Metzler 14:34
so I think some people that some judges, I think, and when I say some, I can think of to have that view, and certainly I've heard it from some practitioners too, that, you know, this is fine for judges, but but not for attorneys. And so, okay, but I really don't see any difference again, I go back to the ellipsis. We don't if you Trust, if you allow, I shouldn't say trust, because there are good reasons not to trust attorneys. I work in, you know, disciplinary cases, there are good reasons not to trust attorneys. But there's no rule against using an ellipsis. And really nothing in the blue book prevents you from just using an ellipsis to take out the word not that's on you, that's trusting you to do that. And you know, you couldn't do it, you violated no stylistic or Bluebook rule, but you're gonna get in some big trouble because you're misrepresenting things to the court. So I really don't see the cleanup is actually much different, because you're telling them things have been removed, and you're on your honor, not just to say that you haven't removed anything important that you decided, but that you actually haven't removed anything except brackets, you know, ellipses, and internal quotation marks citation or a footnote reference. So if the they say that, for attorneys are, are your reputation is is your practice, that's the whole thing. And when judges start looking it up, and seeing that you're not doing what you are implicitly promising to do, to get good results are not going to follow from that. So so I don't really understand why people would say, this is fine for judges, like we charge judges more than attorneys. Well, I've seen some judges, you know, do some things in opinions that are that I would question. Let's put it that
Tim Kowal 16:21
right. Let me ask you this follow up, then. If you're quoting something in a brief and you're choosing not to paraphrase it, but to quote, to use the quote, because that quote is just it's so good. It transcends being paraphrase that the court really needs to know this quote, because it's so good, but it needs to be cleaned up a little bit. And if you're right, that the code is so good that the courts going to stand up and take notice and say, Oh, this is a really good point. Oh, but it's cleaned up, you're gonna send the judge back to check it out and see what's been cleaned up? Is that going to risk irking the judge a little bit that well, this is a really good quote. But I'd rather just be able to see exactly where it came from, how it appeared at this citation that the attorney is pointing me to, wouldn't the judge rather see, quote, with all of its warts, all of its ungainly symbols, rather than have to go back and check the attorneys work to make sure that no substantive material has been cleaned up.
Jack Metzler 17:13
I see Jeff shaking his head. So I gotta
Jeff Lewis 17:16
jump in here. My assumption is every time we file an appellate brief, is there some clerk or research attorney who checks scrupulously every citation of fact, in every citation to law, they don't take Jeff Lewis's word for it. And what a great opportunity to build credibility with the judge or the law clerk for the research attorney than to have faithfully executed on cleaned up and provided a good clean up of all the extraneous garbage. So that's where I land.
Jack Metzler 17:42
I have to agree. Sorry, Tim. I clerked for Judge Showflat on the the 11th Circuit Court of Appeals. And he would sometimes say what's rule number one? And I'll tell you what rule number one was, we don't trust the lawyers. So wow, maybe you can build up that trust over time. But as far as but I agree with Jeff, whether I, you're making it easier for the judge to read it, because some clerk somewhere is going to go make sure that you haven't misrepresented anything. And the lack of hearing that when he doesn't hear, Oh, those cleaned up sites, we you really can't trust those not hearing those is gonna build your credibility with the judge.
Tim Kowal 18:24
Okay. All right. Well, you survived that objection. Let me put to you another objection that I found from Professor Tessa dice art. Here's what she wrote in a post. I'll link it in the in the show notes here. This was back in 2021. She said perhaps one of the best explanations he's talking about generally here, the role of citations and then we'll get to the question about cleaned up, how it applies to cleaned up one of the best explanations of the role of citations that I have read and this is Professor Tessa dicer that I have read came from Eugene Bullock, Eugene Bullock wrote, I remember asking a federal appellate judge once why courts don't shift more to the citations in footnote style. That's another that's another barbarism that Brian Gardner has endorsed along with cleaned up, I'm ingest a little bit here but gotta give some pizzazz to it. Why don't courts shift more to the citations and footnotes style, which I thought looked cleaner and made it easier to follow the flow of the argument, same argument for cleaned up and the the judge laughed and said something like, you've used citations to authority as support for the argument, but I view them as often the most important part of the argument and quote, so here's back to Professor deicer commentary, if judges view citations and quotations to case law as the most important part of the argument, then they might want to be wary of efforts to clean those sources up. And one of the judges most common complaints about briefs is that attorneys mistake the law in the record as you pointed out, rule number one, we don't trust the attorneys. That post in fact, Professor die starts referring to a previous post of hers where she had discussed a Ninth Circuit opinion where the court chastised attorneys for misrepresenting precedent by altering quotations from cases So what's your response to that along the same lines that Well, you got to you're not going to trust the attorneys anyway, you're always gonna go back and check the sites. But I guess I'm still questioning does it? Wouldn't it be better instead of using cleaned up, which is, I think you mentioned one of the objections to it is to colloquial, the way I would put it is that all the other parent articles we have are very precise about what the author has done, you know, internal quotation marks removed internal brackets and alterations removed internal ellipses and citations removed, you know exactly what the author has done with cleaned up. As I mentioned earlier, it's understood that it just means the non substantive material, but the words cleaned up by themselves don't contain that you have to refer to that definition that is outside the four corners of the parenthetical. So is that a problem? And wouldn't it be better just to say, here's what I did in reporting this quote?
Jack Metzler 20:50
So a couple of things I agree with, actually, with Scalia and garner have this discussion in their making your case book, where Garner what is of the, you know, idea that you should put foot citations and footnotes, because it's easier to read? And Scalia says, No, you want the judge to check your work as you're going along. And and Alexa Chu, who's another legal scholar, and sort of citations has a an article called stylish legal citation. And in which she argues and I very strongly agree that the citation is part of the argument. And it goes like this, right? So if I say, x proposition, right, that all you have from that is me, Jack said, Well, who cares what I say. But if I follow that with a citation, then you know, that's not just me talking. That's the Supreme Court, the United States talking and not only that, you get to find out some things. That was a case that was, let's go back a couple years where it's not quite so questionable. Like that's a case from 2020. It's not that'll land you. Or you might find out, that's the Fifth Circuit. Well, I'm in the Fifth Circuit, or maybe I'm a district court in the Fifth Circuit, that's my boss who said that. So just through the citation, you get to make part of your argument, you build credibility every time, this is why I think inline citations are the way to go. So it's not just about N. Sure, I agree with Garner, it would be easier to read. But if you're reading like a fiction book, that swell if you're reading an article in a magazine, great, but what you're doing in a brief to a court is trying to convince the court that they should do something because that's what the law is. And the law comes in our common law system, from the these prior judicial opinions. Now, when it comes to quoting a decision, that gives you an even better opportunity, because it's not just Jack says it. And it's not even just that, Jack says that the Fifth Circuit of Supreme Court says it, here are the words that the court used. And so you don't even have to trust me, those are the words now, you might say, but what about the cleaned up? As we've talked about before, so the cleaned up is my representation this time, you know, you do have to somewhat believe me, but it's easy enough to check that I haven't removed anything substantive. Now, it doesn't say it within the corners of the parenthetical. And a couple of times, you've said, Well, maybe our readers had never heard of cleaned up. And they don't know what this is all about. And to those listeners. I'm not very concerned about them a couple years ago, I used to get that. And I would say, Look, if you have not seen cleaned up, then you're not reading cases that come out from the courts of appeals. I can't tell you how often I just get note for someone, you know, this big case that just came out, has it cleaned up, because they all make a exaggerating, but just a little bit like the next time there's a big case, not in the Supreme Court. But every other court of appeals or a big district court decision. You know, just take a look and just search for cleaned up. You'll see it there. So at this point, it's not really a question about whether anyone has seen it, or whether anyone knows what it is. The people who aren't familiar with it, haven't seen it. You don't need to worry about them because they're not reading cases. Right?
Jeff Lewis 24:17
Well, yeah. Let me push back a little bit on this jack. You know, I'm a big fan of cleaned up but a big fan of yours. Let me share something with you. I found it really interesting. I was at an informal zoom of research attorneys with the second district formal zoom, informal meaning there was a meeting of research of attorneys for the Second District Court of Appeal in California, which is Los Angeles. And when I say informal, it wasn't the official position of the court. They weren't speaking on behalf it was more like a q&a of peeves of research attorneys and things that bother research attorneys. So we know you know how not to piss them off when we prepare it. And I asked this group there's like five or six of these research attorneys. Do they favor or are they against the use of cleaned up and nobody in that discussion, who what cleaned up was, at least in the among the research attorneys, I was flabbergasted I thought I'd get either strong reaction for or against. None of them. I'd heard a bit I was
Jack Metzler 25:10
shocked. This was who was the audience? Again,
Jeff Lewis 25:13
this is a research attorneys who were on a panel in the second district court of appeal, California Court of Appeal. And these are the attorneys who know, do some site checking and draft opinions and that kind of thing. And they weren't against it when it was explained, but they just hadn't heard of it. I was just shocked.
Jack Metzler 25:29
Well, so this gets into the one particular subject, which may be touchy with you guys. I know, this is the California appellate podcast. But California has some rules that sort of make it difficult for cleaned up. As far as I can tell the California state rules, at least the cite the style guide, the California style guide, as far as I can tell, may be the only authoritative source that like that is actually against cleaned up not expressly, but by sort of the other rules, I think, seem to preclude it. Oh, hold
Tim Kowal 26:04
on. I gotta get I gotta take notes here for ammunition against Jeff. All right. Wait on Me.
Jeff Lewis 26:09
He said, maybe there was a lot of there was some hedging. But yeah,
Jack Metzler 26:12
I mean, it suggests for exam well, like so this whole idea of putting parentheses around a citation? Well, that's kind of odd. I guess what I would say is, there's several of them. There's a rule about quotations within quotations, which is section four point 22 of the California style manual, which, you know, is contrary now, we all I know, and everybody knows that cleaned up is not in the blue book, right? So you're going against the blue book, you know, full stop. But on the other hand, if the things that cleaned up replaces, which we all see a million times, not all of those are actually Bluebook standard, either. So and I don't have this on the top of my head anymore. But But essentially, if you are willing to say, internal quotation marks, omitted brackets omitted, and so forth, you're already outside the blue book. So you might as well go all the way and just use an easier one. But I see, and maybe you guys can tell me better than I know how much like my court doesn't have a style guide that I have to follow? Do you have to follow the California style guide? Or is it just sort of optional,
Tim Kowal 27:19
it is optional, you can use either the blue book or the California style manual, but you are going to stick out like a sore thumb in the California state court system if you are using blue book rather than the yellow book, The California style manual.
Jack Metzler 27:32
Yeah. So in that case, I'm not really all that surprised. The people who are sort of very much in the weeds of checking the California citations are not seeing this, because they're probably going for mostly California cases. And there are California cases that use cleaned up, but I looked at them. And I'll be honest, they get it doesn't fit very well with the typical California style. Just because you're already just as a matter of, like automatically already putting in a bunch of extra brackets and parentheses, like even like a second string site, you have to put the first one goes in parentheses. But if you want to have like a second one, that one goes in brackets, and also like in a parenthetical, if you're quoting something inside of parenthetical, and you want to sort of add your own little gloss at the beginning of the quotation, right, if you want to say holding that, and then a quote, the holding that goes in brackets inside the parentheses. Am I right about this?
Jeff Lewis 28:33
Yeah, I think you are. But let me also say the yellow manual, or the yellow book has not been I don't think it's been revised in over two decades. And yeah, the version I have is my prediction that when it gets revised, cleaned up is going to be last in the next edition. That's my bold prediction.
Tim Kowal 28:47
Well, in Jack, you
Jeff Lewis 28:48
pointed out, you sent us a number of California state court published opinions that have used the cleaned up parenthetical. Jeff, you previously indicated that you'd only spotted it in one published Yeah, I thought it was one. But Jack has found a couple of dozen. The reason I know about that one, by the way, Jack's every time I submitted a pellet bravewell about say 90% of the time I use cleaned up and I add a footnote citing to your article that the kick this off. And the One California case I was aware of that uses it as kind of authority for using the citation. So I'm trying to educate folks in California about it.
Jack Metzler 29:22
So I actually looked at that one. And I have to tell you, unfortunately, that is not the best example of the use of cleaned up.
Tim Kowal 29:31
All right, what is for misuse the parenthetical it didn't
Jack Metzler 29:35
misuse it, it's more that it didn't use it enough.
Tim Kowal 29:40
That makes sense. So the only sin that you cleaned up users only identify
Jack Metzler 29:45
not, I don't know whether Can I share a screen with you? Because it might make it easier?
Tim Kowal 29:49
Sure. Let me I'll enable it here if I can, but we'll have to narrate this is the video version of the podcast but most listeners are going to be listening only so we'll have to narrow All right, what we're seeing on the screen,
Jack Metzler 30:01
I want at least you to see it. So this is the on the left, I have the case that Jeff pointed me to. And you see it uses cleaned up. And then the original case is on the right. Yeah. So I have highlighted here. Yeah. I think the cord was doing on the right.
Tim Kowal 30:22
So this is the original quote, the source of the quote,
Jack Metzler 30:25
right, the original is on the right. And you can see in the original, it starts with a single quotation mark, then a double quotation mark.
Tim Kowal 30:34
Yeah, when you get a single and then a double quotation mark, you already know that you're already spotting a cleaned up use.
Jack Metzler 30:40
And then right after that there is a T in brackets. And if you move on, you see that there's an ellipsis. And then at the end of the sentence, there is in
Tim Kowal 30:51
period, and then citation in brackets, double quotes, citations, and another set of brackets, and then a single quote, and then a citation. It's just a mess,
Jack Metzler 30:59
right? So what I think the core is done, if we go back to the right, where they use cleaned up, is to get rid of all of that sort of that stuff that has highlighted the citation and bracket citations and bracket and actual citation, and then some of these extra quotation marks. Yeah. But if you look what the court left,
Tim Kowal 31:19
it still left the unsightly square brackets at the beginning, right, and then the stupid ellipses in the middle of the quote,
Jack Metzler 31:26
right, so the reason I say that this is not the best use of cleaned up is,
Tim Kowal 31:29
is that not a comprehensive use, right? So that
Jack Metzler 31:33
leaving that ellipsis, in there makes this sort of confusing, because if you the normal use of cleaned up, you would take out an ellipsis, but you indicate your own changes in the normal way. So this suggests that the court that used cleaned up took something out between the word review and is where that ellipsis appears. But in fact, it is quoting that ellipsis. So it's sort of like a backwards implication that ellipsis is the new courts work as opposed to something get quoted, I see why I wanted to get rid of the other stuff. But really, what the court should have done here is just go all the way I don't really care about the about changing the case of the first letter in the word D at the beginning, but that ellipsis is is kind of problematic. That's all I wanted to also notice
Tim Kowal 32:20
that the in that parenthetical there rather before the the parenthetical cleaned up, cleaned up, it's actually not even in a parenthesis in a parenthetical, the quote ends with a comma rather than a full stop period, as it did in the original quote, it's a comma, close quote, and then the words cleaned up that yeah, this can seem a little bizarre.
Jack Metzler 32:39
So Jeff, you might want to look at one of those other examples. Yeah,
Jeff Lewis 32:42
I will. But Tim, we just had on the screen, an incomplete use of cleaned up on the left, and then a wordy bogged down version on the right, that had not been cleaned up. Would you not concede that the version on the left, which must is much easier on the eyes, much easier to get your point across than the one on the right, with all that bogged down citation and the word citation and citation right after each other?
Tim Kowal 33:06
Yeah, you know, I'm not going to go in on any ideological crusades against the use of cleaned up, but I'm still not sure that that I'm going to use it. But I am much closer to being there than I was before we started this conversation. One other objection that I've got this is going to pull the camera back a little bit. Are we making too much use of quotations? I mean, that quotation we just read. It's not such a sparkling and concise and pithy quotation that it could not possibly have been said. In other words, or why do we even need quotation just put what the court said can leave the quotation marks off. It's still what they said. If the court if it's not exactly what the court said, it's what you say it said, and obviously, a jack pointed out, it's the words that are important that the symbology that goes along with
Jeff Lewis 33:50
it. Well, hey, Jack said Rule number one is we don't trust the lawyers. When you quote, a case, it's like there's a sub rule of well, if they're quoting a case, maybe they're not so much lying this time.
Tim Kowal 34:01
But they were trying to construct an entire brief out of just using case citations, like, oh, that way, you could never again, say anything I said, because it's all in quotations. It doesn't work that way. You have to put it in prose that flows naturally. And as we said, Yeah, we don't trust the attorneys, we're always gonna have to go back and check the sites. But hopefully, you're proceeding brick by brick and making uncontroversial statements all along the way. They don't always have to be in quotation marks, are we too addicted to quotations that we're trying that we're creating these new innovations so that we can use them more without the unsightliness of all the extra symbols in inside them?
Jack Metzler 34:36
Well, you know, there's always the danger of this is why we can't have nice things. No. The I think there's a balance and it is certainly when you quote reflexively I don't really think I think we need to attorneys as writers, we need to check ourselves on that and there are times when it matters, you know, In the heart of your argument, when you really do want the you do want the extra push that the authority gives you as you're going along, you know, of course, subject to the original author's writing style and making it fit. It's very inconvenient when judges write things that are hard to fit into my sentences. But, you know, in those places, I think there's a good reason to use the courts words, but there are a lot of places where it's not, you know, you will, you know, one of my pet peeves is when people will quote something where the context, clearly the court was talking about that case, it's like, yeah, where the court says something like, and that behavior is outrageous and must be denounced. And people will say, just like, in that case, the behavior is outrageous and must be denounced, like, they're not comparing the actual behavior. They're just using that quote, because it's, you know, it's some some words, the court said that he wished that they could that the court would say about their case. Yeah. And also in sort of less controversial parts of the brief, where, you know, if you say, you know, there in order to grant a motion to dismiss, there should be no genuine issue of factor or law and the movement is entitled to relief. Well, you don't really have to, quote rule 12 B six to get that relief, like, no one's just gonna be like, No, we're gonna kick them out. You can cite the rule, but you don't really have to quote it. Yeah. So I mean, that's my view, but we just need to check ourselves. And yeah, you know, this cleaned up does make it easier to quote, but ideally, it's used to make things easier when the quote would have been there anyway.
Tim Kowal 36:38
All right. Well, it's my final question. I won't speak for Jeff. But this is along the lines of what we talked about earlier. This is, if a practitioner, someone listening to the podcast is thinking about, you know, this sounds like a pretty good idea I want to use cleaned up. But I'm still a little concerned. You know, I know that a lot of courts, a lot of judges are using it. But how do I know that I'm not going to be submitting my briefs to that one judge, you know, or one of that that small cadre of judges who just really doesn't like it? You ever come across any reports that there are some judges who just don't like it? Or I know you're, you and Jeff, are true believers, they'll use it anywhere. But what about those who are a little bit more trepidatious about using it? Would you caution against using it in any certain jurisdictions?
Jack Metzler 37:14
There's, there's one place I would not use it. And that it's because there's an Intermediate Court, I think, in Missouri, or Alabama, where two members of a panel said went out of their way to say the very thing you suggested earlier, which is that this is fine for judges, we don't think appellate advocates should use it. So if it were me, I probably wouldn't use it there. On the other hand, other judges of that same court have used it. So you know, maybe they're going to come around. There have also been an Intermediate Court in somewhere in the Midwest, or it's Colorado. I'm not very good with geography, where initially at the beginning, they came up with their own version of cleaned up, I think for the colloquial objection, like it was just a different couple of words. And there seemed to be sort of a little bit of tension on the Court of Appeals until their Supreme Court use cleaned up and so I think that one then that was settled. So other than those two, I don't really think there's any place I wouldn't use it.
Tim Kowal 38:25
All right, okay. And,
Jeff Lewis 38:26
and it's okay to use the emoji broom and an up arrow instead of the words cleaned up shirt. Okay,
Tim Kowal 38:32
yeah, that's fine. You'll go along with anything. Alright. Well, I think the record against you already is pretty damning at this point, but just gonna conduct a lightning round to check for any other typographical barber isms.
Jeff Lewis 38:44
Nope. Before we get to lightning round, I want to ask you both about a kind of rip from the headline moment, and it's making its way through Twitter. I want to ask your your thoughts on this. It's a practice I haven't seen here in California. I'm going to share my screen for a second, as you know, in the internet is talking about this lawyer that's facing sanctions for using chat GBT in a brief, and he's been ordered to show cause and one of his lawyers asked for an extension. And I this is the first time in 26 years practicing. I've seen something like this, the district judge overseeing this issue denied in part and granted in part the extension did a hand right hand written order on the lawyer's letter requesting more time to brief or respond to this OSC re sanction. So my question is, Jax is common where you practice to have judges handwriting orders like this?
Jack Metzler 39:32
No, it is not.
Jeff Lewis 39:35
As the appellate lawyer kind of gives me the heebie jeebies of like,
Jack Metzler 39:37
I have seen an appellate guy I don't do as much work in the district courts or trial courts. Generally. I have seen cases in which where courts require people to have a proposed order. And yeah, of course there's handwritten changes on that. And then sometimes they'll write in something that is completely you know, that is just completely different like you no opposition. I've seen that before, where, you know, which is relevant and a reason you might grant in addition to whatever the the reasons given by the movement. But no, I haven't seen the full sort of, let's just do it right now and file that. Wow. Yeah.
Jeff Lewis 40:15
It's crazy. Yeah, the
Tim Kowal 40:16
audience. You know, I'm
Jack Metzler 40:17
pretty sure though chat GPT did not write that response.
Tim Kowal 40:22
That's right, maybe that's the point to be made. And what we're looking at for the audience who's just listening is that we're looking at the lawyer's letter sent to the judge. And on the whole right hand side of it in filling in all the whitespace. The judge had written the order denying the motion, just handwritten. So yeah, that's a good point. You can be sure that that was not the product chat. GPT.
Jeff Lewis 40:42
And, Jack, I don't want you to put in jeopardy any pending prosecutions or open cases. But do you have any thoughts about that chat GBT at a lawyer's use of chat GPT in briefs?
Jack Metzler 40:51
So speaking in an unofficial capacity. Yeah, I can tell you that in in DC. The Office of disciplinary Council is authorized to start cases, basically, if the disciplinary Council learns about misconduct in any way, so if we read about it on the news, or it turns up on Twitter, that is a fine source, which could result in an investigation and I'll tell you that the people involved in that case are not DC lawyers.
Jeff Lewis 41:21
Well, okay. All right. All right, Jack. Well, to earn a podcast mug as a guest you have to survive the dreaded lightning round which is our patented copyrighted segment of the show that answers the most pressing pressing questions that Vex appellate nerds around the world short responses one word or one sentence where you can you know in the spirit of cleaned up for your appellate briefs that you filed these days fought preference century schoolbook Garamond or something else?
Jack Metzler 41:48
Lately I use Times New Roman. Is that preferred by that court?
Jeff Lewis 41:51
Are you just a monster?
Jack Metzler 41:53
Now that you want full answer?
Jeff Lewis 41:54
Yeah, yeah, that's good.
Jack Metzler 41:56
So if you're finally a refund 14 point Times New Roman double space, it doesn't make any difference right it's not any more or less legible than century expanded is actually my preferred font. And so times new roman is familiar The reason people hate it is because it was the default font on for Microsoft Word for several so long now the default font is called libre if you file it a briefing, libre, You are a monster. But, but times new roman is fine. Garamond sucks.
Jeff Lewis 42:31
Wow, shots fired.
Tim Kowal 42:33
Yeah, okay, well, my mind's blown here. I thought you were a trendsetter. And now you're like a trick. You're going back to a previous trend. And you've got a valid reason for it. So I yeah, he's, I don't know what to say.
Jeff Lewis 42:44
Is reason supported by authority. All right, I'm almost afraid to ask. I'm gonna ask the next question. Two spaces or one after a period. One. Oh, fantastic. All right, pled or pleaded, pleaded when you're doing your major arguments, not the page headings but the major arguments and appellate brief. All caps, initial caps or sentence caps.
Jack Metzler 43:03
Initial casts. Nicely done. All caps. I'm sorry, wait,
Jeff Lewis 43:09
small all caps initial capital.
Jack Metzler 43:11
What are we talking about major headings like major headings?
Tim Kowal 43:14
Yeah. Like, like introductions, summary of argument. That kind of thing. Oh,
Jeff Lewis 43:18
no, no, under that like Roman numeral one, that motion should have been granted. Roman one small caps. Small caps. Okay. And final question left justify or Full Justify for your briefs.
Jack Metzler 43:30
So I prefer left the court that I currently practice before the most does everything justified?
Jeff Lewis 43:38
Oh, okay. I guess we're justified in doing that. Yeah. All right, Jack, you earned your podcast mug and you survived our dreaded lightning round. Congratulations.
Jack Metzler 43:47
Thank you very much. This was fun. Yeah. Let me let me give you one more thing. It didn't come up. I wanted to let you know in case you're interested you know that article cleaning up quotations Journal of appellate process, practice and process is the the second most cited case in judicial opinions of all time. Wow. These most cited case is Brandeis. Brandeis and, and Warren Brandeis breathed the right to privacy. Oh, and I should tell you, I'm only about 40 behind them, or 30. So
Tim Kowal 44:25
you're gonna overtake and be the most cited article of all time and the Supreme Court or appellate briefs
Jack Metzler 44:33
in judicial opinions. All state and federal. It's mostly due to a couple of judges who just keep citing the cleaned up article over and over again. But I'm still taking it.
Jeff Lewis 44:45
It's stuck in some form template opinion that the judges keep reusing. Right? Well,
Jack Metzler 44:49
like, you know, early on a lot of people like like you said, Jeff, you say you cite it every time that's what reminded me of it. There's a couple of judges who still cite it every single time. And so they've got like, 80 or not Any opinions that from the same judge citing it, but nevertheless, citation count if you're just counting? I'm taking it.
Tim Kowal 45:07
Well, well deserved. Well deserved. I hope you get some sort of plaque or at least, you know, I'll make up my own plaque. Yeah. Cleaned up parenthetical somewhere on there. All right, well, that's gonna wrap up this episode. Again, we want to thank our sponsor casetext for sponsoring the podcast each week when we include links to the cases we discuss, we use casetext daily updated database of case law, statutes, regulations, codes, and more. listeners of the podcast will enjoy a special discount on case text basic research when they visit casetext.com/calp. That's the casetext.com/CALP And if you
Jeff Lewis 45:42
have suggestions for future episodes, please email us at info at Cal podcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 45:52
All right, thanks again, Jack. Thank you.
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at email@example.com or (714) 641-1232.
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