Go to Top

Is This the End of Legal Yeti (a.k.a. Bigfootnote)?

Just at the “Arab Spring” brought both revolution and repression to the Middle East, an “Appellate Spring” may be upon us as appellate practitioners and judges agitate against the Bluebook’s excessively technical rules.  More specifically, many are embracing the notion that quotations in opinions and briefs should be streamlined to make them more readable.

A full history of this evolving process is beyond the scope of this blog but you can see from the following link that a 2017 grass-roots Twitter suggestion quickly gained traction.  Local sightings may have begun with United State v. Marshall, 872 F.3d 213, 217 n.6 (4th Cir. 2017), where the footnote stated:  “We have omitted internal quotation marks, alterations, and citations throughout this opinion, unless otherwise noted.”  In a subsequent unrelated District Court opinion, Judge Eagles used virtually identical language, citing Marshall as authority. N.C. Democratic Party v. Berger, 306 F. Supp. 3d 803, 808 n.1 (M.D.N.C. 2018).

At least some of the judges on the North Carolina Court of Appeals appear to like this approach.  Beginning with several unpublished opinions on 7 August 2018, Judge Berger added the term “purgandum” following any citation from which he had jettisoned such baggage as “emphasis in original” and “footnote omitted”. See, e.g., Henion v. Cty. of Watauga.  In footnote 1, the opinion gives a quick derivation of the term and adds: “We use purgandum to simply mean that there has been the removal of superfluous items, such as quotation marks, ellipses, brackets, citations, and the like, for ease of reading.”

In his concurrence in Jones v. Wells Fargo Co., Judge Dietz, noted that some other courts and commentators use the phrase “cleaned up” for the same process and added his support for the practice, no matter how denominated.  (For what it’s worth, I prefer “purged” with all its Stalinist connotations.)  In a sentence that practitioners may wish had been in the majority opinion, Judge Dietz added that “[s]o long as the substance of the quote is unchanged and the parenthetical informs the reader that there are non-substantial changes,” counsel appropriately could use the same process in their appellate briefs.

The allure of this approach is apparent. Every appellate practitioner and judge runs into the occasional quote that has been altered in the past and needs to be altered again to fit the matter at hand.  Even assuming the alterations do not change the substance of the quote, the process of noting all the alterations nevertheless can create a Frankenstein quotation that looks and reads like a bunch of dissimilar parts stitched together.  The purgandum/cleaned up process can make the quotation readable again and keep your spell-check program from having a stroke.

Will this dog hunt? The Bluebook rules regarding alterations in quotations read like a NASA Change Order and will make the eyes of the most assiduous glaze over.  Yet they are probably there for a reason: to allow the reader to reconstruct the history of the quote and make any desired independent checks.  For the purgandum/cleaned up procedure to be widely accepted, it seems to me that some practical questions need to be addressed.

First, will attorneys be permitted to “clean up” quotations themselves or will they be allowed to use only those “purgandum” citations that have been previously cleaned (and thus tacitly approved) by a court?  If the former, attorneys may raise issues as to whether the cleansing of a quotation in an opposing brief left the substance of the original quote unchanged.  In addition, will judges and justices feel they can rely on quotations that have been “cleaned up” by the advocates?  If those on the bench feel constrained to reconstruct every cleaned up quotation in a brief in order to be certain that cleansing by counsel has not resulted in an alteration in the substance, little or nothing has been gained.  While the vast majority of attorneys would never knowingly mislead a court, a few might and some others would by mistake.

Second, will judges and justices be comfortable issuing opinions that rely on “purgandum” citations?  Unless the individual judge or justice is going to do the cleaning, clerks may well be deciding what is superfluous.  While each chambers has its own internal procedures, some judges and justices may be reluctant to give that much authority to those fresh out of law school.

Third, will those who are interested be able readily to reconstruct the history of a quotation that has been “cleaned up”?  Unless reconstruction is possible, reliance on cleaned up quotations will be problematic.

Fourth, will rules applicable to “purgandum/cleaned” up become as convoluted as the existing rules?  That which seems a mere superfluity to one attorney or judge may be deemed pertinent or even critical by another, so expecting everyone to fly by the seat of their pants seems unrealistic.  Will the need for uniformity result in substituting one set of unwieldy rules for another?

These are just some preliminary thoughts about an evolutionary step that, despite the modest reservations mentioned above, appears to be not only sensible but increasingly widely supported by many practitioners and judges. Even Bryan Garner likes the idea, as you can see on page 162 of this article.  I strongly recommend that you read it for a serious and detailed analysis of the many issues raised by the proposal.

Share your thoughts, gentle reader. Good idea (purgandum)?  Or [b]ad (emphasis in original)(internal sitation [sic] omitted) idea (ellipses omitted)?  Let us know.

–Bob Edmunds

Print Friendly, PDF & Email
Please follow and like us:
RSS
Facebook
Google+
https://www.ncapb.com/2018/08/27/is-this-the-end-of-legal-yeti-a-k-a-bigfootnote/
Twitter
LinkedIn

One Response to "Is This the End of Legal Yeti (a.k.a. Bigfootnote)?"

  • Beth Scherer
    August 27, 2018 - 3:14 pm Reply

    The value of this internal movement is that it pressures the Bluebook overlords to rethink silly and unworkable rules–and use all of their geekiness to come up with a better solution.

Leave a Reply

Your email address will not be published. Required fields are marked *

*