Whither citations?

Now that I have been blogging for all of three weeks, it's probably time that I wade into the debate that proves that appellate lawyers truly are the geeks of lawyerdom: should citations go in footnotes or in the text? Although I think there are valid arguments on both sides of the issue, the increasing use of e-briefs and e-readers provides a convincing argument to keep the citations in the text.

I know I am nowhere near the first blogger to wade into this fight and I am sure that I will not be the last. But a recent experience with reading briefs electronically has me thinking about the issue.

First, a little background. As a law clerk, I hated footnotes because I did not like having to look back and forth between the text and the footnotes while reading briefs. When I started working at a firm, the firm's standard practice was to put all citations in footnotes. So, I adapted, and I came to see the benefits of putting citations in footnotes. I appreciate the clean look of the text, and I think it helped me to focus on the construction of the argument instead of a list of cases.

But I always harbored doubts. Garner has argued that legal writing should be like other professional writing, with sources listed in footnotes. It seems to me that that the analogy to other professional writing gives short shrift to the importance of citations in legal argument. While the legal principle is important, the source of the principle is just as important. In some respects, moving citations to footnotes moves part of the argument to the footnotes.

After a few years, I started to see evidence that putting citations in footnotes risks annoying the only readers who count: judges. I saw a study that suggested that although some judges had no preference, among judges with a strong preference, a majority preferred to have the citations in the text. Bryan Garner's interviews with US Supreme Court justices (which should be required viewing for any appellate practitioner) showed that the justices preferred citations in the text. Justice Scalia reinforced this point in Making Your Case by writing an entire separate section to explain why he disagrees with Garner.

I preach to young lawyers that the most important consideration in writing is the audience. In the face of this evidence about audience preference, I started putting citations back in the text. Putting them in the text makes it easier for readers who want the source information to get it. And those who are not interested in the source information are accustomed to seeing citations and can skip over them easily.Now, I put virtually all of my citations in the text. The only exception is when a string cite is absolutely necessary.

Recently, I have found another compelling reason to put citations in the text. I have started using my iPad to analyze opponents' briefs. I have found that when the citations are in the footnotes, it is even harder to deal with them electronically than in hard copy. Scrolling down to see the citation and then scrolling back up to the text is a pain.

We have been hearing for a few years that more and more judges are reading briefs electronically. Several Texas Supreme Court justices read petitions for review electronically so that they don't have to carry boxes full of petitions everywhere they go. Based on my experience with e-reading, I am certain that judges that read briefs electronically would prefer citations in the text.

But I am also interested in the collective wisdom of our readers. Let me know in the comments what your current practice is on citations. I'd also be interested to know what you think about the influence of e-readers. Should they spell the end of citations in footnotes or am I completely off base?

-- Rich Phillips, Thompson & Knight

 

Comments

[Stephen R. Diamond]

I think Garner's right that changing the customary way lawyers cite cases from inline citations to footnotes would make reading briefs a better experience. (At least hard copy.) The importance of cognitive ease in persuasion is greater than ordinary intuition grants. (http://tinyurl.com/78nsplq)

But given that inline citation remains the norm, displacing citations to footnotes is extravagantly risky: you're taking upon yourself to change the judge's habits of work. It's a violation of what I call a "status formality." (http://tinyurl.com/mr7xf6) And judges don't compensate for such biases. (http://tinyurl.com/26w4k4j)

[Chip Orr]

I've never waivered. Citations are important. And textual footnotes aren't always the great evil that some make them out to be. Sometimes, they're even good.

But the correct answer, as always, is, "It depends."

Rich's point that what matters in writing is the audience is spot on. I can (and should) write the same brief a dozen different ways, depending on my audience. If the reader doesn't understand what I wrote, I failed, not the reader. I succeed only when the reader has to do no work (beyond reading, that is) to understand what I wrote.

[Don Cruse]

You're right that footnotes don't work as well on a screen as on paper because you can't be quite sure how any particular reader is viewing it. They might be on a laptop or have it zoomed to only see part of the page at a time, or they might be scrolling in a way that makes footnotes awkward. Keeping the citations inline make the experience consistent (and expected) for the reader.

[Scott Lyford]

Like you, I have gone back and forth, and am back to putting them into the brief even though I think it detracts from the flow of the argument. I guess judges like what they're used to - like people who talk about still liking the "feel" of a good book. Soon no one will know what that means. I wonder if it would make sense - given the effect web pages seem to be having on reading habits - to separate citations like you would a quote of more than a couple of lines? So that the reader would not lose the flow, but wouldn't have to go to a footnote, either? Of course, it would increase the number of pages and would be a problem in any appellate brief. But maybe in the trial court . . .