Keep It All In Context

October 23, 2002 Published Work
Reprinted with permission from The Connecticut Law Tribune, October 21, 2002

Like most memorials in Washington, D.C., the Jefferson Memorial includes several inscriptions of notable quotations of the individual it honors. The third panel of the memorial contains the following uplifting inscription: "God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God? Indeed I tremble for my country when I reflect that God is just, that his justice cannot sleep forever. Commerce between master and slave is despotism. Nothing is more certainly written in the book of fate than that these people are to be free. Establish a law for educating the common people. This it is the business of the state and on a general plan." Most people would agree, I think, that the italicized language (the italics are my own) is potent stuff. The persons who selected that language for the memorial, out of thousands of possible quotations, no doubt did so because they believed it would have a great and positive impact on the reader's opinion of Jefferson.

There is one problem, however, with the sentence in question, which was taken from Jefferson's autobiography. The following two sentences of the autobiography, which do not appear in the inscription on the memorial, state: "Nor is it less certain that the two races, equally free, cannot live in the same government. Nature, habit, opinion has drawn indelible lines of distinction between them." I dare say that anyone reading these two lines in conjunction with the sentence inscribed on the memorial would have a somewhat dimmer opinion of our nation's third president.

In a way, appellate briefs are like presidential memorials. The writer of a brief, like the designer of a memorial, seeks to choose words that will move the appellate judge to look upon her client's case with favor. Yet there is no quicker way to cause an appellate judge to lose respect for a brief than by taking words out of context. Once the judge (or her law clerk) finds even one such instance in a brief, the entire brief becomes suspect and may lose whatever persuasive authority it otherwise had. The author's reputation before the court may also be sullied. If the judge was "on the fence" about how the case should be resolved, the loss of credibility may be enough to push her to side with opposing counsel.
Unfortunately, in this "cut and paste" age in which we live, I fear that the ease with which one can pull superficially favorable language from one source and transplant it to a legal brief has led to an increase in the use of non-contextualized language. The briefs may read well, but upon close inspection their arguments do not hold water. Sometimes, examination of the source from which the non-contextualized language was drawn even reveals that the source compels a conclusion that is the opposite of the one the attorney asserted in his brief.

I hate to say this, but the problem of which I speak is not limited to lawyers. Sadly, too many judges, when writing their opinions, make the same mistake. Just like an appellate brief that loses its credibility because it uses language out of context, a judge's opinion also becomes suspect when it reflects the same error.

Fortunately, the problem is very easy to solve. Just don't do it. Take the time to craft your arguments carefully. Only use a quote if the language, when viewed in the full context of its source, supports your argument. To do otherwise is to set yourself, and your client, up for an easily avoidable fall.