Much has been written about the poor state of lawyers’ writing, but less about their punctuation. For years, grammarians and writing gurus have bemoaned misuses of quotation marks—and these misuses are legion. But for lawyers, quotation-mark abuse may not be so bad. And using scare quotes might be the beginning of better legal writing. That’s because lawyers put scare quotes on words, terms, and phrases they would not use otherwise. And if scare quotes make lawyers comfortable enough to start using more plain language, their use might be a good thing.
Stay with me; this isn’t as crazy as it sounds. But first, let’s take a step back.
“American” Speakers, Take Note
I know, you know, we all know that quotation marks are running amok. Bryan Garner puts his finger on it:
Quotation marks are, if I may say so, the most “misused” punctuation mark in the English language. Well, perhaps not “English,” but more accurately “American.”
—Bryan A. Garner, The Winning Brief 287 (Oxford University Press) (2d ed. 2003).
According to Garner, lawyers should use quotation marks only to quote someone, to refer to a word as a word (e.g., the word “that”), and to mean “so-called-but-not-really.” By any measure, a lot of quotation marks don’t fit into these categories.
Let’s look at where they do fit.
Your Quotation Marks Speak so Loudly, I Can’t Read Your Words
Placing every misuse of quotation marks into a specific category is difficult, so we’ll use this Twitter quotation-mark abuse poll (thanks to all who voted) as a starting point. I’ll address scare quotes last.
And now for your quotation-mark abuse poll:
What's the worst misuse of quotation marks?
— Brendan M. Kenny (@KennyBrendan) February 19, 2016
First, let’s look at emphasis and precision. Chris Farley managed to hit them both as motivational speaker Matt Foley:
You’ll notice that Chris Farley doesn’t use any scare quotes in the sketch. This is no accident. As we’ll see in a later section, scare quotes are a newer phenomenon.
Emphasizing the Obvious
We’ve all seen quotation marks used to emphasize a word or a phrase. Anecdotal evidence (and my own experience) suggests emphatic quotation marks are most commonly used by the over-50 demographic and much less commonly used by younger people. And the tone that emphatic-quotation-mark users intend to convey is usually earnestness. However, in the image below, putting quotation marks around fresh has the effect of casting suspicion on the crab claw’s freshness. It’s hard to believe that this was their intent.
Sounds "delicious." pic.twitter.com/cqVhgiTjo8
— Bill Walsh (@TheSlot) November 19, 2015
The sign below, likewise, was probably not written by a jaded urban hipster critiquing the crass materialism of the petit bourgeois.
Precisely Missing the “Point”
Writers misuse quotation marks to provide the illusion of precision, but this has the opposite effect.
— Brendan M. Kenny (@KennyBrendan) January 22, 2016
The tone that precision-quotation-mark users intend to convey seems to be honesty and integrity. They add quotation marks to show that the words they are quoting have a very precise meaning.
The use of Natural Pure in the display above seems to function as a quasi term-of-art. A term of art is a word or a phrase that has a different meaning within a specific discipline than in common parlance. Notice that the display includes Green without quotation marks. But Natural Pure does not have a scientific meaning, and using the term in this ad has the opposite effect—it creates suspicion.
And Saint Paul police bolster their city’s reputation for safety in an odd way:1
— Brendan M. Kenny (@KennyBrendan) January 8, 2016
Precision quotation marks sometimes serve as a punctuation-generated appeal-to-authority fallacy. The use of “official investigation” in the tweet below appears to be an (odd and ineffective) example of this:
— Aradia Music (@AradiasMusic) February 11, 2016
Similarly, some people use precision-quotes as a way to create a title where none exists. If you want to use The Attorney as a prizefighter title on a billboard, quotes are a must.
If his commercials are any indication, Blake Maislin is more than just an ordinary attorney.
“To Quote or Not to Quote”
And falling under the other category is we might call the familiar-quotation mark. The preeminent lexicographer H. W. Fowler described this species of quotation-mark abuse succinctly:
To an educated man it is an annoyance to find his author warning him that something written long ago, and quoted every day almost ever since, is not an original remark now first struck out.
Here are two examples of familiar phrases of literary origin requiring no quotation marks:
These are the times that try men’s souls.
He lives far from the madding crowd
—William Strunk Jr. and E. B. White, The Elements of Style 59 (The Penguin Press, New York) (2005).
The tone created by familiar-quotation-mark usage is one of insecurity and tentativeness. When lawyers quote familiar quotations, it’s as though they want to write something profound, but are afraid they’ll be accused of plagiarism.
And now for the main event.
Careful, Your Snark Is Showing
What are scare quotes? The Arrant Pedantry blog provides a good working definition:
Most abuses of quotation marks fall under the broad, nebulous label of scare quotes. Many writers put terms in quotation marks to indicate that they’re nonstandard, colloquial, or slang or that the term is being used ironically or under some sort of duress.
A lot of people really dislike scare quotes. Cultural critic Greil Marcus, for one, is not a fan:
Scare quotes kill narrative. They kill story-telling. And it’s not a question of parsing, examining, analyzing, laying bare sacred texts. They are a writer’s assault on his or her own words.
As Jonathan Chair noted, “The scare quote is the perfect device for making an insinuation without proving it, or even necessarily making clear what you’re insinuating.” This makes scare quotes an effective tool for innuendo and personal attack.
The first use of scare quotes (with a hyphen) I could find was from a 1946 nonfiction book. Here is how the term was used:
The first use of the term scare quotes (without a hyphen) dates back to at least 1956, when it was used by a University of Cambridge professor in a philosophical essay. In the 60s, 70s and 80s, it marched through the humanities and began being used by academics in America and Australia.2
In the 90s, the rest of the world started talking about them:
Scare quotes are now a part of politics and are probably here to stay. To take one instance, Donald Trump can’t even bring himself to say the Ted Cruz has a temperament, much less the right one to be president. (I know, he misspelled temperament.)
Ted Cruz does not have the right "temperment" to be President. Look at the way he totally panicked in firing his director of comm. BAD!
— Donald J. Trump (@realDonaldTrump) February 23, 2016
Finally, it’s time to turn to lawyers using scare quotes.
First, Let’s “Kill” All the Lawyers
As we’ve seen already, quotation-mark abuse is easy to identify but hard to explain. Here, we’ll divide scare quotes into two categories:
- Words that the lawyer uses ironically or under duress.
- Words that are colloquial.
If you still think scare quotes are always bad, look at how lawyers use them as a way to express understatement. In this tweet, they are devastating.
Unfortunately, the notes from the 3/2 interviews w/Debbie, Ann, and Aisha are "missing" #AdnanSyed
— Colin Miller (@EvidenceProf) February 4, 2016
Professor Colin Miller runs the EvidenceProf Blog, where he shows remarkable patience and tolerance for the trolls who react to his posts about the Adnan Syed case. He is also part of the Undisclosed Podcast, which revisits the State of Maryland’s case against Adnan Syed. Given the prosecutorial and police misconduct that the podcast discussed and uncovered, Professor Miller’s use of the word missing highlights how unlikely it is that these notes were innocently lost.
Now for the colloquial scare quotes. In the tweet below, the lawyer couldn’t bring herself to just say she wasn’t going to do the opposing counsel’s work for him.
— Brendan M. Kenny (@KennyBrendan) April 29, 2015
But the statement still packs some punch. She could have said this instead:
Counsel for the Plaintiff John H. Smith (“Plaintiff”) declines to engage in legal work that is the sole duty and responsibility for the counsel of record for Defendant Acme Corporation (“Defendant”). Rather, counsel for Defendant is obliged to do work on behalf of Defendant…
And say what you will about the slap-in-the-face cliche, at least it paints a picture.
You get the idea.
Which brings us back to Greil Marcus. Let’s consider lawyers when we read this passage:
I used to think the use of scare quotes was a matter of writers being too lazy to find the right word, to find the words that would say precisely what the writer meant. But editing this book made it clear that the real question is fear—people afraid of their own words, of opening themselves up to attack. So we went after scare quotes with the equivalent of Raid—that spray that carried the slogan, coined by the beat poet Bob Kaufman in his day job in advertising—“Raid Kills Bugs Dead.” And we found that in almost every case, when the scare quotes came off, what remained was what the writer was actually trying to say. And when we went to the writers, to ask for their consent—because no changes were made without the writer’s agreement—they said, over and over, yes. It was as if we were disarming them of a weapon they had aimed at themselves.
If lawyers stop disarming themselves by using legalese, maybe they won’t need scare quotes. Until then, we’ll have to put up with them. A baby step in the right direction is much better than nothing.
And if you want to check out a blog dedicated solely to the misuse of quotation marks, “look” no further than The “Blog” of “Unnecessary” Quotation Marks.
Featured image: “Quote icon isolated on white background.” from Shutterstock.
I could not find any designation of Saint Paul as a safe city. Safe city is defined as “a concept for returning security, safety and quality of life to today’s complex cities”. This makes safe city a quasi term-of-art. And quasi terms-of-art shouldn’t be capitalized. ↩
English Language & Usage, Oct. 11, 2013, http://english.stackexchange.com/questions/72307/who-coined-the-term-scare-quotes-and-why-is-the-word-scare-used ↩