Citations, Parenthetical Phrases, and Footnotes
When setting out a block quotation, the citation and parenthetical phrases (if any) are placed flush left on the next line with a double space between the quotation and the citation, e.g.,
"Defendant, of course, may argue that the safeguard for employees exceeds the ordinary standard of due care considering the nature of the risk and the foreseeability of injury. The court may explain the governmentally prescribed safeguard to the jury in an instruction that the jury may consider the safeguard in deter-mining whether the defendant exercised due care."
Shahtout, 298 Or at 605-06.
ORS 19.205(2)(a) provides, in part:
"An order affecting a substantial right, and which in effect deter-mines the action * * *."
(Emphasis added.)
As stated in Welker,
"[t]his court has held that a motion is controlled by its substance, not its caption. More specifically, this court has held that a motion was a motion for new trial although it was not denominated as such.
Under ORS 19.270(4)(a), the trial court must have intended to enter an appealable judgment at the time of the filing of the notice of appeal."
332 Or at 313 (citations omitted).
The preferred method for quoting text that contains a footnote is to omit the footnote and indicate so by parenthetical, e.g.,
"The difficulty with that argument is that the state has not estab-lished the requisite nexus between appellant's mental illness and the potential substance abuse or failure to appreciate the risks of such abuse."
State v. Linde, 179 Or App 553, 561, 32 P3d 78 (2002) (footnote omitted).
To retain a foonote within a blocked quotation, drop the quoted, blocked footnote under it, separated by a one-inch line, then proceed with new text (that is, do not set the quoted footnote as a new footnote at the bottom of the page), e.g.,
As this court explained in Kambury v. DaimlerChrysler Corp., 173 Or App 372, 387, 21 P3d 1089 (2001) (Edmonds, P. J., dissenting),
"[b]ut the question is one of Oregon law, not federal law, the federal court's decision was the earlier of the two, and it is the Oregon court's decision-not that of the Ninth Circuit-that is binding for purposes of the certification law. It follows from the foregoing that this court should not accept certification of the first question, unless some other discretionary factor dictates a contrary conclusion.
'' We recognize that the district court appears to be concerned about an inconsistency in decisions on this subject. However, our focus in searching for controlling precedent is narrower than the focus of the district court. The Oregon Court of Appeals decision in [Korbut] is "controlling precedent" for the purposes of ORS 28.200 [the statute authorizing answers to questions of law cer-tified by other courts] and our exercise of discretion under that statute."
It is unclear from the opinion in Western Helicopter Services whether the Supreme Court was telling the United States District Court that it should follow Oregon law rather than the federal cases interpreting Oregon law or whether the court was in fact affirming that Korbut was controlling precedent on the issue presented by the certified question.
When formatting a second level of blocked quoted text within blocked quoted text, use the standard indent for the first level of quotation, and then for the internal quoted text, use a double indent for both the right and left margins.
"the state must prove that the defendant's consent was independent of, or only tenuously related to, the illegal police conduct. As the court explained,
" 'consent is insufficient to establish the admissibility of evidence from a warrantless search if the state cannot prove that the consent was independent of, or only tenuously related to, any preceding violation of the defendant's rights under Article I, section 9. Unless the state is able to make that showing, then the defendant's con-sent cannot operate to validate a warrantless search because the defendant's consent itself derived from a violation of the defen-dant's rights under that state constitutional provision.' "
Jones, 265 Or App at 678 (quoting State v. Yunker, 330 Or 388, 395, 457 P3d 890 (2013) (emphasis in Yunker)).
If internal quotation marks or brackets are omitted, so indicate, e.g.,
"By looking to only the current employment of the land, the law ignores the past and any intentions with regard to future use." Everhart v. Dept. of Rev., 15 OTR 76, 81(1999) (internal quotation marks omitted).
or
In Everhart v. Dept. of Rev., 15 OTR 76, 81(1999), the court rejected that argument, stating, "By looking to only the current employment of the land, the law ignores the past and any intentions with regard to future use." (Internal quotation marks omitted.)
NOTE: It is correct to add either a parenthetical indicating that internal quotation marks are omitted or to leave in the quotation marks and add a parenthetical indicating the source that you are quoting, but not both.
Oppressive conduct is
" 'burdensome, harsh and wrongful conduct; a lack of probity and fair dealing in the affairs of the company to the prejudice of some of its mem-bers; or a * * * departure from the standards of fair dealing, and a violation of fair play on which every shareholder who entrusts his money to a com-pany is entitled to rely.' "
Polk v. Hergert Land & Cattle Co., 5 P3d 402, 404 (Colo App 2000) (quoting Jorgensen v. Water Works, Inc., 218 Wis 2d 761, 783, 582 NW2d 98, 107 (Wis App 1998) (brack-ets omitted)).
Include a parenthetical phrase to differentiate emphasis being added to quoted material as opposed to emphasis that was already in the original text, e.g.,
"While mass-appraisal techniques may place heavy reliance upon cost, cost alone is not determinative of market value." Su v. Dept. of Rev., 15 OTR 305, 308(2001) (emphasis added).
"ORS 653.295, however, provides no remedy for discharge of an employee * * *." Dymock v. Norwest Safety Protective Equipment, 172 Or App 399, 406, 19 P3d 934 (2001) (emphasis in original).
When the material being quoted contains a quotation, the text of which is emphasized, include a parenthetical phrase that notes the source of the emphasis (use emphases if plural), e.g.,
As in Gladhart v. Oregon Vineyard Supply Co., this court again repeats that
"the Brown court 'only acknowledged that perhaps strict liability should require the danger to be one endangering human life or safety, a different question from whether tort recovery should be limited to such an injury,' and that '[t]hat difference determines the decision in the present case.' "
164 Or App 438, 451-52, 994 P2d 134 (1999) (quoting Russell v. Ford Motor Company, 281 Or 587, 593-94, 575 P2d 1383 (1978) (emphases in Russell)).
"Apparent authority is created 'only by some conduct of the principal which, when rea-sonably interpreted, causes a third party to believe that the principal consents to have the apparent agent act for him on that matter.' " Badger v. Paulson Investment Co., Inc., 311 Or 14, 24, 803 P2d 1178 (1991) (quoting Mattson v. Commercial Credit Business Loans, 301 Or 407, 422, 723 P2d 996 (1986) (emphasis added)).
Badger v. Paulson Investment Co., Inc., 311 Or 14, 24, 803 P2d 1178 (1991) ("Apparent authority is created 'only by some conduct of the principal which, when reasonably interpreted, causes a third party to believe that the principal consents to have the appar-ent agent act for him on that matter.' " (Quoting Mattson v. Commercial Credit Business Loans, 301 Or 407, 422, 723 P2d 996 (1986) (emphasis in Mattson).)).
Multiple notations about a quotation may follow any order that clearly communicates whether and how the text was altered. If in doubt, choose this order: "in original," "omitted," and "added." It is also acceptable, to improve readability, to use "first emphasis added; second emphasis in original," etc.
In particular, petitioner focuses on the following emphasized statements that appear in the form under the heading "Information Considered at the Hearing":
"Discovery is not permitted. Requests that the Board research and obtain information you want considered cannot be honored. It is your responsi-bility to provide that information. You do not have the right to call wit-nesses or to cross-examine witnesses who have provided information to the Board."
(Underscoring in original; footnote and boldface omitted; emphasis added.)
Consistently with those principles, the court more recently summarized the requirements of ORS 136.440 as follows:
"By its terms, ORS 136.440(1) requires only that the corroborat-ing evidence tend to connect the defendant with the commission of the offense, here, aggravated murder. That statute does not require corrobora-tion of a particular theory of the commission of the offense.
"It is not necessary that the corroborating evidence be direct and positive; it may be circumstantial. Nor is it necessary that there be indepen-dent corroborating evidence with respect to every material fact necessary to be established to sustain a conviction for the commission of a crime. Where there is any evidence apart from that of the accomplice tending to connect the defendant with the commission of the crime, the question of whether the accomplice's testimony is corroborated is one for the trier of fact."
State v. Walton, 311 Or 223, 242-43, 809 P2d 81 (1991) (emphasis in original; citations omitted).
It depends, the court stated, on the nature of the restriction-in particular, whether the restriction is on the contribution itself:
"If it can be shown that financial contributions and expenditures are the free expression of opinion, laws limiting such activities run afoul of the constitutional protection. But lawmakers might choose to impose require-ments distinct from contribution or expenditure limitations (e.g., require-ments of disclosure of financing sources and the extent of any gift) as well as various sanctions (e.g., civil or criminal penalties, disqualification from the ballot or Voters' Pamphlet, and the like) and their choice may not nec-essarily offend the constitutional requirement."
Id. at 523 (first emphasis added; second emphasis in original; internal quotation marks omitted).
When a citation includes both a parenthetical phrase and subsequent history, place the parenthetical after the subsequent history, e.g.,
Defendant notes that the fact that a search occurred cannot, alone, support an inference that the searching officers had subjective probable cause. See State v. Bickford, 157 Or App 386, 390 n 1, 970 P2d 234 (1998), rev den, 329 Or 589 (2000) ("If a trial court could infer subjective probable cause from the arrest, we would never need to inquire into subjective probable cause for the arrest.").
When a parenthetical contains a quotation that has been altered, include an internal parenthetical and adjust the punctuation accordingly, e.g.,
The court held that claims of increasing pain due to injury, standing alone, were insuf-ficient to establish an aggravation claim. SAIF v. Walker, 330 Or 102, 116, 996 P2d 979 (2000) (stating that ORS 656.273(1) requires "proof, based upon medical evidence supported by objective findings" (emphasis added)).
The court held that claimant's claims of increasing pain due to the injury, standing alone, were insufficient to establish an aggravation claim. SAIF v. Walker, 330 Or 102, 116-17, 996 P2d 979 (2000) ("Under ORS 656.005(19), however, such 'objective find-ings' may include evidence of worsened symptoms." (Emphasis in original.)).
When appending information to a citation, using terms such as cited in, quoted in, construed in, etc., those words are italicized,
Keenan v. Norris-Lampe, 330 Or 456, 777 P2d 897 (1999), construed in Bennett v. Bauman, 333 Or 566, 790 P2d 654 (2001).
Citing ORS 136.425(2005), amended by Or Laws 2009, chapter 875, section 1, defen-dant contends that, by itself, a confession is insufficient to support a conviction for an offense.
When including works that the primary authority quotes, discusses, or mentions, the lead-in words should be indicated parenthetically and not italicized, e.g.,
See Keenan v. Norris-Lampe, 330 Or 456, 777 P2d 897 (1999) (citing Bennett v. Bauman, 329 Or 566, 770 P2d 654 (1998)); see also Brown v. Uphoff, 381 F3d 1219, 1226 (10th Cir 2004) ("Unlike Gideon, Crawford does not 'alter our understanding of what constitutes basic due process,' but merely sets out new standards for the admis-sion of certain kinds of hearsay." (Quoting United States v. Mora, 293 F3d 1213, 1219 (10th Cir 2002).)).
For more on parentheticals, refer to pages 18 to 19.