My post from earlier this week identified the problem caused by lawyers using lengthy block quotations from case law as a part of the argument in their brief. As noted, judges often skip over rather than read long block quotes and lawyers who use this approach to brief writing are seen as lazy or inexperienced. So how can this problem be avoided?

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Perhaps the easiest way is to avoid altogether quoting long passages of a court opinion and to spend the extra time and effort to compose a thorough and persuasive narrative discussion that paraphrases the facts, legal discussion and holding of the court, bolstered by pinpoint citations to the opinion. Another alternative is to sparingly use partial quotations from the opinion within sentences of your narrative discussion. (I plan to address this technique in a subsequent post.) Both alternatives have their place within the argument portion of an appeal brief.

However, those options may not satisfy your need or desire to provide the appellate court with a significant portion of actual text from an opinion that is either controlling authority or very important persuasive authority. In such an instance where paraphrasing will not suffice the answer is to break long block quote into subparts, with your own narrative discussion between. In his book on appellate practice with Bryan Garner called “Making Your Case,” United States Supreme Court Justice Antonin Scalia offered the following advice when using this technique:

If you ever use a series of quotations, remember that you must supply connective tissue between them — words to take the reader smoothly from one quotation to the next. Back-to-back quotations with no connective tissue are verboten.

I don’t think much of the term “connective tissue” as a description for the narrative text of a brief that should be provided between the subparts of a lengthy quotation, although it does provide an appropriate mental image. The purpose of such text is of course to connect the several subparts of a large block quotation, but the text you write must do more than transition the reader from quote to quote. The text cannot simply be something like: “The Smith Court then discussed the facts,” or “… the controlling rule of law.” It must do more.

In writing a brief, you have to keep in mind that the purpose is always to persuade.  Thus, what Justice Scalia calls connective tissue must not just connect quoted paragraphs, it must also persuade. In fact, I believe the principal purpose of the narrative text between quotes is to present a paraphrasing of the quoted text to come that interprets it, reasonably, in a light favoring your client. So, “The Smith Court then discussed the facts,” instead becomes, “The Smith Court then discussed the critical and controlling nature of the fact when the defendant’s breach of a contract was planned from the start,” or “The Smith Court then discussed how the element of a fraud claim is met as a matter of law when the statement made is a half-truth.”

In his excellent book on appellate writing, “Point Made,” Ross Guberman highlights how important it is to use this text to persuade the reader.

Introduce the quotation instead with language that ties it to the client’s cause. In other words, the block quote is just an insurance policy; it’s there to back up your point, not to make it for you.

So, what of the quoted text if the connecting text is so important? Well, don’t forget to make the block quoted text as easily readable as possible. That means if they are not absolutely needed to show that another key opinion or authority supports the court’s ruling, I omit case citations or other references to legal authority present within the quoted text. This leaves the reader with a more concise quote without the distraction of references to authority that are not necessary for your purpose and may not otherwise be relevant to your brief. Just add (citations omitted) to your pinpoint cite for the quote when you do omit references to authority.

These tips should help transform your brief from one that will seen by the court as worth skipping through to one that holds the attention of the court and uses every opportunity to persuade. Be sure to leave a comment if you have any other techniques for handling block quotes.

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