What Do Distinguishes a Term of Art in Legal Writing
Quotation Incorporation
New law students face many complications when incorporating quotations from other sources into their ain work. These fall into 3 general categories: creating a grammatically correct judgement that includes the quoted material; using brackets properly; and using ellipses properly. In improver, new law students (and many practicing lawyers) tend to quote far also frequently. This guide has separate sections on using brackets, ellipses, and quotation marks. Exist certain to review those sections carefully considering mastery of the rules there does not come naturally to virtually legal writers. This section focuses on creating proper sentences when incorporating quotations, on certain technical rules for quoting, and on avoiding quotations when possible.1. Be careful to avoid quoting excessively; paraphrase whenever possible. New law students sometimes believe, incorrectly, that they should always quote a judge'southward words. Afterward all, the thinking goes, the judge must know the best style to limited the law. However, excessive quotation is a poor substitute for assay. Your job as a lawyer is to clarify precedent, not only repeat it. Thus, your writing should explain to your reader why and how a precedent is of import to your client. You lot can non achieve that important interpretive office only by stringing quotes together. Moreover, stringing together quotations from cases and secondary sources tends to produce a choppy, breathless text. It is by and large better to use your ain words and so that the text you lot write will have a logical progression and consistent mode from judgement to sentence.
A paraphrase is the expression of another'south ideas in 1'south own words. You may paraphrase existing textile as long every bit you provide a proper citation after the paraphrase. You should non put quotation marks around paraphrased material. The citation indicates that the ideas are from another source; the lack of quotation marks indicates that the words chosen to limited those ideas are your own. Well-paraphrased material will change the bulk of the cardinal words from the original source. If your paraphrase retains words of special significance from the original source, put quotation marks around those words only.
Undesirable serial of quotations:
"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and nowadays danger that they will bring about the substantive evils that Congress has a correct to forbid." Schenck five. United states of america, 249 U.Southward. 47, 52 (1919). "One may not counsel or advise others to violate the police force every bit information technology stands. Words are non simply the keys of persuasion, but the triggers of activity, and those which have no purport but to counsel the violation of police cannot by whatsoever latitude of interpretation be a part of that public opinion which is the concluding source of authorities in a democratic state." Masses Publishing Co. v. Patten, 244 F. 535, 545 (South.D.N.Y. 1917)(Hand, J.).
Desirable paraphrase/summary with only cardinal words quoted:
Congress may regulate oral communication if that speech would "create a clear and present danger" of a specific harm confronting which Congress may legislate. Schenck v. United states of america, 249 U.S. 47, 52 (1919). Thus, information technology is illegal to encourage others to commit crimes, and the fact that "speech" is involved does not render Congress powerless. The public debate that the Framers sought to encourage in enacting the First Subpoena does not include conspiracies to suspension the law. Masses Publishing Co. v. Patten, 244 F. 535, ___ (Southward.D.N.Y. 1917)(Hand, J.).
Explanation: The 2nd example is more than desirable because it makes the substantive point with many fewer words. In addition, an excessive reliance on quotations from older sources may produce a text that seems primitive.
2. If you exercise quote, avoid freestanding quotations. Every bit a general dominion, information technology is meliorate when quoting to incorporate that quotation into a sentence of your own, rather than quoting an entire sentence from a instance. Consider the following.
Awkward, Freestanding Quote:
"A racial classification, regardless of purported motivation, is presumptively invalid and tin can be upheld only upon an boggling justification." Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979).
Better Combination of Paraphrasing and Quoting:
Legislation that distinguishes among citizens on the basis of their race "is presumptively invalid and can be upheld only upon an extraordinary justification." Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979).The second example is preferable because the writer is writing specifically nigh racial classifications contained in legislation, and thus tailored the sentence to accost a specific blazon of nomenclature. Leaving the freestanding quotation on its own does not reach that end.
3. Do quote words of special significance or particular eloquence. From time to time, one comes across a phrase or sentence so well written that to paraphrase it would be nearly criminal. Other phrases may accept become role of the lore of legal writing, and to the knowledgeable reader a paraphrase would seem dizzy. These phrases are rare, simply when you observe them, feel free to quote them. They tin can be particularly effective in a memorandum or brief prepared for a court. Sometimes, one would lose the effectiveness of the quote unless it is left freestanding. In that case, one should condone the general rule against freestanding quotations. The following are a few examples.
"But in view of the constitution, in the eye of the police force, in that location is in this country no superior, dominant, ruling form of citizens. There is no caste here. Our constitution is colour-bullheaded . . . ." Plessy v. Ferguson, 163 U.Due south. 537, 559 (1896)(Harlan, J., dissenting)."It is revolting to have no better reason for a rule of constabulary than that then it was laid down in the time of Henry 4. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Oliver Wendell Holmes, Jr., The Path of the Law, x Harv. L. Rev. 457, 469 (1897), quoted in Bowers v. Hardwick, 478 U.S. 186, 199 (1986)(Blackmun, J., dissenting).
"The makers of our Constitution . . . conferred, as against the regime, the right to exist let alone -- the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the authorities upon the privacy of the individual, whatever the means employed, must exist deemed a violation of the Quaternary Amendment." Olmstead v. United States, 277 U.Southward. 438, 478 (1928)(Brandeis, J., dissenting).
It is not surprising that the authors of these famous words are Justices Harlan, Holmes, and Brandeis. Along with Justice Cardozo, Primary Justice Marshall, and mayhap a few others, they are considered the legends of American legal history. In persuasive writing, it never hurts to quote a legend.
4. Exercise not employ quotation marks around terms of art. A term of art is a phrase that has become so well accustomed and pervasive in a particular field that it is no longer considered proprietary to its original author. These terms likewise have meanings well known to anybody who practices in the fields in which they are used. You need not place quotation marks around a term of art, nor do you need to cite to a source, although you may want to provide a cite in social club to strengthen the bespeak you are asserting. The following are a few examples.
Beyond a reasonable uncertaintyYou lot will find farther guidance on the utilize of terms of fine art in the department of this guide on Legalese.
Burden of proof
Case of first impression
Articulate and disarming bear witness
Due process of law
Reasonably prudent person
Correct of first refusal
5. Try to avoid using cake quotes of 50 words or longer. Many readers skip over block quotes considering they are looking for explanations of the constabulary, rather than mere reprinting. Don't use block quotes unless (i) there is but no other way to write what you intend to convey (extremely rare) or (ii) the words are so eloquent that to paraphrase them would seriously undermine the persuasiveness of your text.
six. If you must use block quotes, exist certain to indent and unmarried space. Quotations of l words or longer should be indented at both the left and right margins by approximately one-half inch in each case. They should exist typed in single-space format, and the commendation for the quote should be placed two lines downwards from the stop of the quote and at the original left margin. Do non place quotation marks around such a quote: the reader will know it is a quote because you have indented it. However, if in that location are quotations within the blocked quote, then exercise use citations around these internal quotations. The following is an example of a properly blocked quotation of l words or more than.
Allowing discrimination based on the contagious furnishings of a concrete harm would exist inconsistent with the bones purpose of Sec. 504, which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others. By alteration the definition of "handicapped private" to include not but those who are actually physically impaired, but too those who are regarded every bit impaired and who, as a result, are essentially limited in a major life activity, Congress acknowledged that Gild's accumulated myths and fears near disability and illness are as handicapping as are the physical limitations that period from bodily impairment.School Board of Nassau Canton five. Arline, 480 U.South. 273, 284 (1987).
Note that Justice Brennan used the abbreviation "Sec." in the opinion excerpted above. Justice Brennan is considered among the great justices of the century; here, notwithstanding, he should accept spelled out the word "department." (See the department of this text on abbreviations.)
7. Use a comma later on "said," "stated," "exclaimed," and like terms when introducing a quote; in other cases, add the word "that" and use no comma. It is sometimes difficult, such equally with the word "held" in the second example beneath, to make up one's mind whether it is acceptable to employ an introductory term with a comma (such equally "said,") instead of an introductory term with the word "that" (such equally "wrote that"). When in uncertainty, use the latter option (held that, wrote that, plant that, concluded that). This is the more widely accepted selection.
Incorrect: The Supreme Court stated "A role of complimentary spoken communication under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a status of unrest, creates dissatisfaction with weather as they are, or even stirs people to anger." Terminello v. Chicago, 337 U.Due south. ane, 4 (1949).Correct: The Supreme Court stated, "A part of costless speech communication under our organisation of government is to invite dispute. It may indeed best serve its high purpose when it induces a status of unrest, creates dissatisfaction with weather condition as they are, or even stirs people to anger." Terminello 5. Chicago, 337 U.S. 1, iv (1949).
Also Correct:
The Supreme Court stated that "[a] function of free speech under our system of authorities is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminello v. Chicago, 337 U.S. ane, 4 (1949).
Wrong: The Supreme Court held, "A function of free speech under our arrangement of regime is to invite dispute. It may indeed best serve its loftier purpose when it induces a condition of unrest, creates dissatisfaction with atmospheric condition as they are, or fifty-fifty stirs people to anger." Terminello five. Chicago, 337 U.Southward. i, four (1949).
Right: The Supreme Court held that "[a] function of costless speech nether our system of government is to invite dispute. It may indeed all-time serve its high purpose when information technology induces a condition of unrest, creates dissatisfaction with conditions as they are, or fifty-fifty stirs people to anger." Terminello v. Chicago, 337 U.Southward. 1, iv (1949).
Note that in examples iii and five above, brackets are appended around the commodity "a." This is because to use an upper-case letter in that location -- in the eye of a sentence -- would be inappropriate. Your sentence, fifty-fifty if information technology includes a quotation within it, must all the same meet all the rules of a traditional judgement. The brackets bespeak to the reader that yous have changed an upper-case "A" to the lower case.
8. When you lot incorporate quoted material into your own judgement, brand sure the effect is a grammatically correct judgement. When you add another'due south words to your own to create a sentence, the combined product must be grammatically correct. In determining whether the sentence is grammatically right, momentarily ignore the quotation marks and inquire yourself whether, if all the words were your own, the judgement would be correct. If not, yous need either to rewrite the portion of the sentence you lot created or drop the quoted material and employ a paraphrase.
ix. Avoid introducing quotations with a colon. The utilise of a colon to introduce a quotation is appropriate merely when the words that follow the colon are truly momentous. Instead, try to contain part of the quote into a judgement of your ain. (See item two of this section.)
Source: http://www.kentlaw.edu/academics/lrw/grinker/LwtaQuotation_Incorporation.htm#:~:text=A%20term%20of%20art%20is,proprietary%20to%20its%20original%20author.
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