The “Cleaned Up” Parenthetical—A New Way to Tackle Ungainly Citations
Effective appellate writing requires an eye for detail. Passages must be both persuasive and succinct, while accurately conveying the law. The best briefs tell a story by artfully explaining how the facts of a particular case fit within a certain area of law.
But nothing can jar a good story (or mess up your word count) like an ugly, unwieldy citation. Enter the “cleaned up” parenthetical, a rather new addition (and one not yet formally adopted by the holy grail of legal citations: The Bluebook), that helps distill a cumbersome citation down to something manageable and less disruptive. To illustrate, take this passage written by Indiana Supreme Court Justice David Slaughter:
First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (cleaned up).
Here is what the original passage from the cited decision says:
First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756, 104 S.Ct., at 3327; Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 740–741, n. 16, 92 S.Ct. 1361, 1368–1369, n. 16, 31 L.Ed.2d 636 (1972);1 and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” Whitmore, supra, 495 U.S., at 155, 110 S.Ct., at 1723 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)). Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41–42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id., at 38, 43, 96 S.Ct., at 1924, 1926.
Normally, without the “(cleaned up),” Justice Slaughter may have quoted this as something like:
First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (internal quotation marks and citations omitted).
But “cleaned up” basically means “internal quotation marks, brackets, ellipses, footnotes, and citations omitted.” It is cleaner, neater, and helps focus the reader’s attention on the quoted text without distracting them with the irrelevant.
Since proposed in 2017 by appellate lawyer Jack Metzler, well over 5,000 opinions from many courts (federal and state, appellate and trial) have used it. The earliest use I found among Indiana appellate courts was in the passage quoted above by Justice Slaughter in a June 2019 concurring opinion. Soon after, “cleaned up” appeared in the unanimous opinion of another Supreme Court case authored by Justice Massa, and this time included a footnote explaining its usage:
The parenthetical “(cleaned up)” signifies that the author “has removed extraneous, non-substantive material like brackets, quotation marks, ellipses, footnote reference numbers, and internal citations; may have changed capitalization without using brackets to indicate that change; and affirmatively represents that the alterations were made solely to enhance readability and that the quotation otherwise faithfully reproduces the quoted text.” Jack Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 154 (2017).
In 2021 alone, the Indiana Supreme Court and Court of Appeals have used it at least seventeen times that I can find. Clearly, “cleaned up” is gaining acceptance and I, personally, approve of anything that helps to improve the readability of legal writing. Although there is a risk that “cleaned up” will be used to mischaracterize or mislead, this is true for all alterations, particularly brackets and ellipses. Attorneys should know that judges (or their clerks) may well check the original source.
By: Katherine E. Tapp, Attorney at Kightlinger & Gray, LLP