More 'cleaning up' to do: 'cleaned up' in federal courts

Last month, we shared the story of "cleaned up" and explored how it has fared in California. Little did we know that this topic would ignite so many responses (mostly positive) about using the new signal. So this month we're sticking with that topic and digging a little deeper.

To recap, "cleaned up" is the citation parenthetical Jack Metzler proposed in a 2017 Twitter thread:

"Cleaned up" signals that the writer has removed nested quotation marks, brackets, ellipses, and the like, without requiring successive parentheticals to explain exactly how the writer changed the original source material. In short, "cleaned up" means never having to say something like this from Xinrong Zhuang v. Benvie 2018 WL 10335959, *15 (D. Mass. Feb. 9, 2018):

The Massachusetts Supreme Judicial Court has explained that "an otherwise innocent instrument is considered a dangerous weapon if, 'as used by the defendant, [it] is capable of producing serious bodily harm.'" United States v. Hart, 674 F.3d 33, 42 (1st Cir. 2012) (quotingCommonwealth v. Tevlin, 433 Mass. 305, 741 N.E.2d 827, 833 (2001)) (citations omitted) (internal quotation marks omitted) (further citations and footnote omitted).

"Cleaned up" is emphatically not embraced by the Bluebook, see Rule 1.5(b), which instead provides excruciating detail on the required order of successive parentheticals to indicate how exactly the author has changed the material--no matter how meaningless the changes. Perhaps to the dismay of Bluebook purists, "cleaned up" has been enthusiastically embraced by the federal judiciary, including by Justice Thomas in Brownback v. King, 592 U.S. 209, 215 (2021) (removing internal quotation marks and brackets from a passage itself quoting the Restatement (Second) of Judgments)).

Legal writing nerds can barely contain their delight over how someone outside the Bluebook universe proposed a new method of legal citation on Twitter, and then within just four years, it was used in a Supreme Court opinion. Granted, one use, even from the nation's highest court, does not constitute an embrace. Usage by one jurist, even a Supreme Court justice, doesn't reveal whether "cleaned up" is here to stay or just a flash in the pan. But over 10,000 opinions using "cleaned up"? That's enthusiastic acceptance.

How do we know the figure is over 10,000? We start with a note on methodology: It is surprisingly difficult to search legal databases for "cleaned up" and feel confident that the results reference Metzler's citation instead of something having to do with environmental (or criminal or other random areas of) law. It would be easier if it were possible to search for "(cleaned up)" in parentheses, since in this context it's always used as a parenthetical. But both Westlaw and Lexis recognize parentheses as a search instruction, not something one might be searching for, so that's out. We settled on searching for the names of federal reporters or abbreviations for district courts -- U.S., F.4th, C.D. Cal., etc. -- appearing five or fewer words before "cleaned up." That approach isn't perfect and fails to capture instances when "cleaned up" is used to reference state court cases, older federal cases, or any secondary sources--but it's a decent start. With that cleared up, here are some results.

"Cleaned up" was used in at least 10,000 federal court cases, and that's almost certainly an underestimate. The true number of federal court decisions using "cleaned up" to cite to other federal court cases is somewhere between 10,000 and 20,000. Here's another weird quirk about legal databases: Westlaw has a limit of 10,000 possible search results. When we tried to search for cases that referenced any one of our lists of common federal reporters or abbreviations for district courts appearing five or fewer words before "cleaned up," Westlaw tapped out and only returned the first 10,000 results. Looking for references to each individual reporter, we found over 4,500 cases using "cleaned up" with citations to Supreme Court cases citing the United States Reports (i.e., "U.S." citations), another 2,300 citing to the Supreme Court Reporter (i.e., "S.Ct." citations), and over 5,500 citing to the third series of the Federal Reporter ("F.3d"). When searching for each reporter individually, we found nearly 20,000 cases. There are likely some duplicates, because it's entirely possible that one opinion might use "cleaned up" to cite to a U.S. case and to the F.3d (and would appear in both of those lists), but it seems plausible that the true number of federal cases using "cleaned up" to cite to other federal cases is somewhere between 10,000 and 20,000. No matter what, it's a lot.

Cleaned up" has been used by Courts of Appeals in every circuit. We found nearly 2,300 Court of Appeals opinions using Metzler's signal. The Fourth Circuit is the clear champion, racking up over 400 opinions, but the Fifth and the Ninth are right behind, with over 300 each. The signal is in good use in the Sixth and the Eighth, too, with nearly 250 opinions apiece. At the other end of the spectrum, we found fewer than 40 First Circuit opinions using "cleaned up."

It's even more popular in District Court opinions. Even when looking just at usage within District Court opinions, we hit Westlaw's 10,000-result limit. We estimate that between 10,000 and 17,000 District Court opinions have used "cleaned up" when citing to a federal case. What's more, "cleaned up" has been used in opinions issued from all 94 district courts.

It's not limited to unpublished cases. Approximately 21% of the cases we found using "cleaned up" were published. This exceeds the percentage of cases generally that are published, showing that judges are not merely using it as shorthand in unpublished cases.

Federal judges were early adopters. Even knowing that Tweets can move at the speed of light, one might guess that federal judges might wait a little while before taking the newest citation out for a spin. Not so. The earliest example we found was in Hillerich & Bradsby Co., 2017 WL 1788671 (W.D. Ky. May 4, 2017) (Russell, J.), just seven weeks after Metzler's Tweet. Within the first year, at least 20 federal opinions, including from courts in Arkansas, Florida, Kentucky, Illinois, Louisiana, West Virginia, Nebraska, New Jersey, and Tennessee, featured "cleaned up." The Cutting Edge award goes to District of Nebraska Judge John M. Gerrard, who used "cleaned up" in seven cases in January and February of 2018.

In a huge vote of confidence for the plucky new citation, the Fifth Circuit used "cleaned up" in two published opinions within the signal's first year of existence:

Barber v. Bryant, 872 F.3d 671 (5th Cir. 2017) (used nine times) and Williams v. Tarrant County College District, 717 F. App'x 440 (5th Cir. 2018). Not to be outdone, the Eighth Circuit used the signal in United States v. Steward, 880 F.3d 983 (8th Cir. 2018) and dropped a footnote to explain: "'Cleaned up' is a new parenthetical used to eliminate unnecessary explanation of non-substantive prior alterations. This parenthetical can be used when extraneous, residual, non-substantive information has been removed, in this case, internal quotation marks, brackets, additional quoting parentheticals and an ellipsis." Within four years after the fateful Tweet, it was being used in Court of Appeal decisions in every circuit.

Usage is increasing. More federal court cases have used "cleaned up" every year since it appeared on the scene. Since March 2017, usage has increased 200-fold, from 20 cases in the first year to nearly 4,200 in the seventh year (March 2023 to March 2024).

Practitioners are getting in on the action. We found over 7,200 Courts of Appeals briefs using "cleaned up." It's been used in briefs submitted to every circuit, although practitioners in the Fifth Circuit are by far the most prolific users; we found over 1,600 briefs submitted to the Fifth Circuit using the citation compared to just over 200 briefs submitted to the First Circuit. Unsurprisingly, there is a good deal of correlation between districts with frequent judicial usage and districts with frequent practitioner usage.

All in all, "cleaned up" appears to be cleaning up. It has appeared in federal court opinions at all levels, is used by jurists and practitioners nationwide, and is becoming more widely used as time goes on.

These conclusions should serve to embolden those who wish to use an eminently sensible improvement to legal citation. Naysayers should note that we have not found any instances where "cleaned up" was blamed as obfuscating something. Presumably, anyone dastardly enough to abuse a citation for nefarious means will do so, such that precluding "cleaned up" makes no difference in enhancing ethical citations. Those who like the idea but are simply too timid to take the plunge should perhaps instead just highlight the beneficial language from nested quotations by using it without quotations and citing to the recent case along with a parenthetical saying "quoting cases X, Y, and Z." Anything is better than the horror of multiple sets of embedded quotation marks.

As for California's beleaguered Yellow Book, parsing the rules carefully--as lawyers are inclined to do--raises some questions. Yes, Rule 4.12 requires quoted material to "correspond exactly" with source material; but that rule also requires that "[a]ny deviations must be indicated or explained." Well, isn't using "cleaned up" a valid explanation? And although Rule 4.22 mandates using "alternating quotation marks ... for each level of internal quotes" and sternly intones that "[i]nternal quotation marks may not be omitted," why then do so many California opinions use parentheticals indicating "internal quotation marks omitted" anyway? Regardless, don't we want those meaningless marks omitted? Momentum is swingingly heavily in favor of "cleaned up." So much so that this may be the last column needed on this topic.

Exceptional research assistance provided by Manatt Summer Associate Jessica Sohn.