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Feb 27, 2012


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. (

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." ( And judges don't compensate for such biases. (

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 . . .

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