The Importance of Accurate Quotations

Accessible document transcript

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The Importance of Accurate Quotations

by
Timothy M. Burke, Senior Assistant Director
Minnesota Office of Lawyers Professional Responsibility

Reprinted from Minnesota Lawyer (May 5, 2003)
Law students learn certain basic rules of professional conduct early in their studies. Lawyers may
not knowingly present false evidence. Lawyers may not knowingly make a false statement of fact. Lawyers
do try to state facts in the light most favorable to the client. Lawyers have a duty to cite to the court adverse
precedent directly on point. Lawyers do try to show how the law supports their client’s position.
There are limits, though, at which zealous advocacy ends and deceit begins.
In a recent case, a trial court reprimanded a lawyer who submitted a motion in which she quoted
from two cases, omitting language from one of the quotations — which changed the meaning of the quoted
language — and omitting from her quotations a citation to a case adverse to her argument.
During the proceedings before the trial court judge (the Court of International Trade) in Precision
Specialty Metals, Inc., v. United States, 315 F.3d 1346 (Fed. Cir. 2003), the government requested an extension
to respond to the opposing party’s motion for summary judgment. The request was made after the close of
business the day before the response was due. The court directed the government to submit the response
“forthwith.” The government filed the response 12 days later. The court then struck the response as
untimely and granted the motion as unopposed.
The government filed a motion for reconsideration, contending that the government’s response had
been filed “forthwith.” In support, it quoted a sentence from a 2nd U.S. Circuit Court of Appeals decision
which defined “forthwith” as “immediately, without delay, or as soon as the object may be accomplished
by reasonable exertion.” Omitted, however, was the very next sentence of the opinion, quoting Dickerman v.
Northern Trust Co., 176 U.S. 181 (1900), wherein the Supreme Court stated that in matters of civil procedure
“forthwith” usually means within 24 hours.
The lawyer also quoted from a dissent by Justice Clarence Thomas in Henderson v. United States, 517
U.S. 654 (1996). The lawyer quoted Thomas as stating, “Although we have never undertaken to define
‘forthwith’ . . . , it is clear that the term ‘connotes action which is immediate, without delay, prompt, and
with reasonable dispatch.’”

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In fact, Thomas actually stated, “we have never undertaken to define ‘forthwith’ as it is used in the
SAA [Suits in Admiralty Act].” The lawyer also put a portion of the quotation in bold type without
indicating that she had supplied the emphasis. To compound matters, the lawyer omitted the next sentence
of Thomas’ opinion, which like the prior quotation omitted the citation to Dickerman . See Precision Specialty
Metals, 315 F.3d at 1348-49.
The trial court judge found that the lawyer had violated Rule 11 of the Rules of the Court of
International Trade (identical to rule 11 of the Federal Rules of Civil Procedure). The Federal Circuit Court
of Appeals affirmed.
The appellate court stated that the government lawyer violated Rule 11 “because, in quoting from
and citing published opinions, she distorted what the opinions stated by leaving out significant portions of
the citations or cropping one of them, and failed to show that she and not the court had supplied the
emphasis in one of them.”
The court further stated, “The effect of [the lawyer’s] editing of this material and ignoring this
Supreme Court decision that dealt with the issue – a decision that seriously weakened her argument, was to
give the Court of International Trade a misleading impression of the state of the law on the point.”
In essence, the lawyer altered quotations in ways that hid adverse authority and changed the
quotations’ overall meaning. This is different from simply de-emphasizing, which involves acknowledging
the adverse language and then explaining that language away. Changing the meaning through physical
distortion or omission of the words actually used is not zealous advocacy, but deceit.