End Times, Legal Citations Edition

The “cleaned up” parenthetical and its rascally scourge

By Adam T. Johnson

0819-End-TimesAccording to the Apocalypse of Thomas, there are to be 15 events that occur in the fortnight before the end of the world. The “15 Signs before Doomsday,” or simply the “15 Signs,” are not to be taken lightly. Notably, they include (1) the earth’s waters rising above the mountains, (2) the stones of the earth fighting each other, and (3) people coming out of their hiding places and no longer understanding each other. We’ve seen the first (starring Kevin Costner), the second has yet to be witnessed, and we presently are living through the third. But this is a serious article for serious readers.

You see, I write to reveal the 16th event, the one overlooked by Tom, and the last before the Day of Judgment. And what is this plague? It is the “cleaned up” parenthetical—a contemporary invention ex diabolus, an agent of confusion, a damned quixotic catastrophe noxiously heaped upon the American bar by the phantom exigencies claimed by Generation Infinite Scroll—to put all of it very, very mildly.

The “cleaned up” parenthetical is, at least superficially, as it sounds. It consists of placing the words “cleaned up” in the parenthesis following a quoted passage, and is meant to expurgate from legal writing the brackets, parentheticals, internal quotations marks, and “quoting” citations we have all come to know. Jack Metzler, a “cleaned up” enthusiast (and from my vantage, its inventor), gives the following examples of passages from United States v. Rico to illustrate the device:

We have clarified that “[w]hile a PSR generally bears sufficient indicia of reliability, ‘[b]ald, conclusionary statements do not acquire the patina of reliability by mere inclusion in the PSR.’” United States v. Narviz-Guerra, 148 F.3d 530, 537 (5th Cir. 1998) (second alteration in original) (citation omitted) (quoting United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993)).

“Using (cleaned up),” says Mr. Metzler, the passage can be quoted as follows:

This Court has “clarified that while a PSR generally bears sufficient indicia of reliability,” that does not mean that “bald, conclusionary statements... acquire the patina of reliability by mere inclusion in the PSR.” United States v. Rico, 864 F.3d 381 (5th Cir. 2017) (cleaned up).

“And it has fewer words too!” exclaims Mr. Metzler.1 

But I’m hanged if that’s not a bleach job. The former passage clearly does service to the prior decisions and has the additional utility of identifying them by way of citation. It is not overly complex, and accurately conveys sourcing. The latter passage, on the other hand, makes it seem as though the court in Rico was the original author of the quoted text. It is up to the reader to dig in and decipher the sweeping, “cleaned up” backstory and all of its interminable unknowns. As confoundingly, using “cleaned up” defeats the purpose of quoting material in the first instance.2 In the words of Adam Eakman, 

It’s fine to make alterations, but they need to be documented. The words matter. If I were a judge, I would never base my entire analysis of a case on a statute that has been “(cleaned up).” Instead, I’d dig into the statute to figure out its exact wording. And if you want to quote a point for emphasis, the emphasis is destroyed if the quote has been cleaned up. A judge is left with no firm conviction that another judge actually said what is in the quotes.3

Professor Eugene Volokh, while writing favorably of the “cleaned up” parenthetical, acknowledges its potential risks:

To be sure, there is a risk that “cleaned up” may be used to sweep some complexities under the rug, and may sometimes be used outright dishonestly. But that's a possibility for any alteration, especially brackets and ellipses (and for that matter the decision when to start and end quoted text). Authors know that the reader may well check the original source, and will spot such misuses; that should be deterrent enough to such a misuse.4

I wish I could share Professor Volokh’s optimism, and that of Messrs. Eric Magnuson and Kelvin Collado, who lately wrote in Minnesota Lawyer that Mr. Metzler’s parenthetical is “one of the good [parentheticals].”5 But I can’t. The “cleaned up” parenthetical snuffs out part of what is rare, delicate, and discreet in the body of the case law and its development. It boasts of getting rid of “clutter.” But clutter is neither bad nor good. It simply is. Under the “cleaned up” model, a quote from one court becomes another’s. An unpublished opinion is masked into published status. Cases are left altogether unaccounted for. “Clutter” is still present, only cloaked by a shiny label. Laziness predominates, and common law chaos prevails and compounds itself. A little bit of chaos fulfills the spirit, but too much is disastrous. Really, the “cleaned up” parenthetical is too much—a sledgehammer peroxide that has convinced itself it can fix stained glass. It is a bigger disaster than the Fyre Festival, and just as hyped.

Where are the nay-sayers, the critics? Where are the men and women of fashion to blunt this foul unraveling of axioms? Who will stand up to this abomination sprung from Twitter? Have we learned nothing from the contemporary abuses of “et seq.”—that ball-of-wax so relentlessly (and daringly) abused by lawyers everywhere? Haven’t we all had our fill of that one? I trow yes.

Unfortunately, it appears that the “cleaned up” parenthetical is here to stay. As of the end of 2017, it was already embedded in over 100 court filings, and employed by over a dozen judges, nine of whom are Article III. Messrs. Magnuson and Collado have identified its presence in over 60 judicial opinions. Bryan Garner has officially sanctioned it, so it has the imprimatur of the Academy. And last I checked, Mr. Metzler was personally sending “legal writing hero” awards to anyone who would send him their brief or opinion using “cleaned up,” with promises of “internet fame and Twitter plaudits.” Like a voracious tick, it has installed itself. 

ADAM T. JOHNSON is an attorney at Lundgren & Johnson in Minneapolis.


1 Jack Metzler, “Use (cleaned up) to make your legal writing easier to read,” Before the Bar Blog, American Bar Association, 10/3/2017 (https://abaforlawstudents.com/2017/10/03/use-cleaned-up-make-legal-writing-easier-to-read/) (last visited 04/30/2019).

2 Adam Eakman, “Why attorneys should stop using ‘(cleaned up)’,” Attorney Words, 4/10/2018 (http://attorneywords.com/cleaned-up/) (last visited 4/30/2019).

3 Id.

4 Eugene Volokh, “New Twist on Legal Citations: The ‘(Cleaned Up)’ Parenthetical,” The Volokh Conspiracy, Reason, 7/24/2018 (https://reason.com/2018/07/24/new-twist-on-legal-citations-the-cleaned/) (last visited 4/30/2019).

5 Eric J. Magnuson and Kevin D. Collado, “A (new) legal citation to consider,” Minnesota Lawyer (4/16/2019).