Don’t [mis]quote me on this…
Exploring inaccuracies in the law
“The coldest winter I ever spent was a summer in San Francisco.”
- the most famous statement that Mark Twain never said.
The meaning of words can change over time. Sometimes, however, the meanings of words don’t change — people change the words themselves.
Judicata recently introduced Clerk — a first of its kind brief analysis tool that identifies ways in which briefs can be strengthened or attacked. One of Clerk’s many powerful features is to identify misquotes — places where the quoted text in a brief differs from the actual language found in the cited case or statute. In analyzing hundreds of briefs we’ve found that quote misattributions and language inaccuracies are pervasive throughout the law — plaguing solo attorneys, AmLaw 100 law firms, and everyone in between (even judges!). Fewer than 20% of briefs are mistake-free.
Inadvertent error or creative lawyering?
The consequences for mistaken or misleading quotations can be severe. There’s a rule against it and it’s a sanctionable offense.
So why do lawyers still file briefs that have quotation errors?
Most of the time the errors are not malicious. It’s hard, in the midst of crafting thousands of words to support a legal argument, to make sure that every space and every letter of every legal principle matches the original text.
But that doesn’t explain every adulteration. Many of the misquotes we’ve seen are sufficiently peculiar and relevant to the brief’s context that they look likely to have been intentional.
These sorts of misquotes involve inserting, changing, or deleting language that alters the meaning of the quoted text. The changes may appear small (like changing “shall” to “may,” removing a word like “reasonable,” or substituting “or” instead of “and”), but they have the ability to alter the meaning of a sentence significantly.
For example, the text on the left without the phrase “if possible” is from a brief, while the text on the right with “if possible” is the true text in the source document:
Counsel would be well advised to not misquote cases …
The courts aren’t blind to these sorts of errors,
and there is little doubt that some of these misquotations are deliberate.
However, while courts sometimes catch these errors, they certainly don’t recognize them all. In fact, it’s important to note that quotation errors aren’t limited to those made by lawyers writing briefs. Sometimes it’s the court that makes the mistake.
If left unidentified, these judicial mistakes spread as in a game of “telephone” with opinion after opinion copying the mistaken text, inadvertently changing the meaning of the law. Take, for example, the saga of “words” v. “works” in California employment law.
“Words” v. “Works”
There’s a legal principle that is often quoted in California harassment law. When you read it closely, you may notice that it has a seemingly strange element:
“‘[¶] The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.’ (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590, 609–610, [262 Cal.Rptr. 842], fn. omitted.)”
(Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1557 [45 Cal.Rptr.3d 597].)
One might ask — what are sexual “works?” The answer is that there is no such thing. There are “sexual words” and a court clerk with sloppy typing. What started as a mistyped quotation from the Northern District of Texas turned into a trail of precedent permeating California case law.
As a result of this one error (and the copying and pasting that followed), “sexual acts or works” is now a more common source of authority in California than “sexual acts or words” even though it doesn’t make any sense. It has even bled back into federal opinions:
“the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse)”
(Easton v. Crossland Mortg. Corp., 905 F.Supp. 1368 (C.D.Cal.1995))
Typos like turning “words” to “works” are not the only kind of quotation error that we see.
While developing Clerk’s quotation checking, we’ve identified various categories of quotation errors — ranging from innocent spacing or punctuation differences to more significant additions or subtractions from source text.
Let’s take a look at each of them.
The Misquotation Categories
For all of the examples, the text from the brief is on the left, and the text from the source document (case law or statute) is on the right.
Sometimes, quote errors are as innocuous as adding or subtracting a space.
Grammatical/punctuation (brackets, dashes)
Additionally, briefs will often add or remove punctuation from the quoted sentence — brackets, dashes, or parentheses:
It is also not uncommon for there to be misspellings or typos in the quoted text:
Page number errors
Even if the text is copied correctly, briefs often cite to incorrect page numbers for the quoted text.
More interesting is that briefs often substitute a completely different word that means something similar:
Sometimes, the differences between the quoted text and its source are legitimate (for example where a statute was amended after the brief was filed). In these cases, Clerk can provide great insights into what the legislative changes were:
Finally, the most surprising quotation errors are those, like the one mentioned at the beginning of this post, that involve inserting, changing, or deleting language that substantially alters the meaning of the quoted text. For these sorts of errors, it’s good to remember Rule 5–200 section (c) of the Rules of Professional Conduct and language from the court in Paiva v. Nichols, 168 Cal.App.4th 1007, 85 Cal.Rptr.3d 838 (2008):
“misquoting cases or statutes ‘‘is inexcusable upon the part of any lawyer, and places additional burdens upon this court’’”
These sorts of errors are indeed inexcusable, and exactly what Clerk is intended to prevent and defend against.
With Clerk, catching opposing counsel’s mischievousness is now considerably easier.
It’s worth noting that most of these errors come from briefs filed by law firms in the AmLaw 100 — some of the largest and most prestigious law firms in the country. But not every law firm is equally likely to produce such errors.
For example, Latham & Watkins, a regular at the #1 position in the AmLaw 100, is one of the best at quoting text accurately. Is that a coincidence? Maybe, maybe not. What is clear is that our analysis shows that the fewer quotation errors a brief has, the more likely it is to win.
Stay tuned for an upcoming post where we’ll compare how various AmLaw 100 firms stack up against each other in the eyes of Clerk.