Posted by Rich Phillips
I have posted before (and here and here) about a debate that confirms that appellate lawyers are the nerds of the legal world: should citations go in footnotes or in the text? Bryan Garner has been on a crusade for years to convince lawyers to put them in footnotes. For several reasons,I disagree with Bryan, and these are addressed in prior posts. But the trump card for legal writing is "what do judges want?"
This morning, at the UT Conference on State and Federal Appeals, Scott Rothernberg, Kent Rutter, and JoAnn Storey reported on a survey of Texas appellate judges that they conducted this spring. This survey confirms that judges do not want lawyers to use footnotes for citations. Of the survey respondents (which were 78% of Texas appellate judges), 92% said that footnotes should be used "sparingly." Moreover, 41% said citations should be in the text and another 44% said citations should be in the text except for string cites. Interestingly, 8% said that they preferred citations in the text because briefs are now filed electronically.
This is not surprising. It is consistent with results from a similar survey in 2009 (although even more judges now say footnotes should be used sparingly). The San Antonio Court of Appeals goes so far as to express a preference for textual citations on its website.
So, if you want to keep your readers happy and if your readers are Texas appellate judges, you should generally include citations in the text, not in footnotes.