Literary References

OPENING STATEMENT

Examples and Commentary

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

Last month I discussed lawyers’ use of literary references and reported on references to 67 well-known authors in appellate briefs filed in local courts. This month I discuss some related topics and then offer some examples with my comments.

But first, a short digression. My reading about literary references in legal writing turned up little mention of biblical references. Is the Bible a legal source? After all, there’s a Bluebook rule for citing it: 15.8(c)(iii). More to the point, is the Bible a literary source? My informal polling of some lawyer friends and colleagues was inconclusive.

My reading about literary references in legal writing turned up little mention of biblical references. Is the Bible a legal source?

So, simply based on my own interest, I decided to do some limited research on lawyers’ use of biblical expressions—that don’t cite the Bible. I searched the Internet for “biblical expressions that people don’t realize are biblical,” and I found a list of 24 expressions, which can be found on my blog, LEGIBLE. 1 Here are some examples: drop in the bucket, fly in the ointment, leopard can’t change his spots, powers that be, and skin of your teeth. I then searched for those expressions, filtered for briefs, and narrowed for the Texas Supreme Court, the Texas Court of Criminal Appeals, and Austin’s Third Court of Appeals. The resulting time period was 1994 to the present. The most commonly used expressions on the list, with the number of appearances in parentheses, were these:

• Letter of the law (118)

• Powers that be (25)

• Go the extra mile (15)

• Writing on the wall (14)

• Fall by the wayside (12)

BACK TO LITERATURE

Continuing my research on literary references in appellate briefs, I searched for the most commonly named literary characters. I relied on a list of 22 well-known literary characters and a few objects, such as the scarlet letter, that I’d found in several Internet searches. The complete list is on LEGIBLE. 2

I ran the same type of search previously described. Here are the most frequently mentioned literary characters:

• Alice in Wonderland (51)

• Frankenstein (34)

• Hamlet (30)

• The Wizard of Oz (17)

• Sherlock Holmes (15)

MY RECOMMENDATIONS

Given the thousands of briefs filed over the time period I searched, my results show that most briefs don’t include literary references at all—and that’s fine with me.

I advise using literary references sparingly for the reasons stated in previous columns: they aren’t legal authority, though they’re occasionally used that way; they can smack of arrogance or showing off—never a good way to score points with a judge; and literary references bring with them the time, place, and circumstances of the original source—and that’s not always great, either. Some examples:

One brief from 1996 contained referred to Lohengrin, who I learned was “a character in German Arthurian legend.” 3 So no, not the Arthurian legend I had a basic familiarity with from a high-school production of Camelot. No. The German Arthurian legend. Sorry, but for me, that’s too obscure to include in a brief.

Another brief referred to The Merchant of Venice character Shylock and unflatteringly compared the opponent to Shylock: “[Opponent], upset that [Client] claimed he had no cash, became enraged and decided to take a pound of flesh…. [Opponent] was greedy—but even more greedy than Shylock; [Opponent] not only stole [Client’s] money and valuables, but took a pound of flesh also.” No. Setting aside the overblown tone and the personal attacks, there are the antisemitic overtones of using the character Shylock in this way.

Here’s a lighthearted example: Supreme Court Justice Elena Kagan received widespread attention and praise for recently citing a comic book in an opinion: “What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: ‘Spider-Man,’ p. 13 (1962) (‘[I]n this world, with great power there must also come—great responsibility’).”

Stan Lee? Spiderman? That’s interesting and, to some readers, fun. Yet I hesitate to commend it. When you’re a Supreme Court Justice, cite what you want. Until then, use literary references sparingly if at all. AL

Footnotes

1. https://sites.utexas.edu/legalwriting/. One useful site: https://www. mentalfloss.com/article/61964/18- everyday-expressions-borrowedbible

2. https://sites.utexas.edu/legalwriting/

3. https://en.wikipedia.org/wiki/ Lohengrin