The Great Footnote Debate (A Response to Bryan Garner)

Bryan Garner has just published a new column in which he reiterates his suggestion that legal writers should remove all citations from the text and put them in footnotes.  I've written before on why I think textual citations are still the way to go (here and here). It seems to me that Bryan's most recent column ignores several realities that counsel against using footnotes.

First, the advice seems to ignore perhaps the most important piece of legal writing advice: remember your audience. Note that both of the people that Bryan "argues" with in his column are sitting judges. Both of them are opposed to his suggestion, and they are not alone. Chief Justice Roberts and Justice Thomas have both said that they prefer citations in the text. (John G. Roberts, Jr., Interview Transcript, 13 The Scribes Journal of Legal Writing 5, 39 (2010); Clarence Thomas, Interview Transcript, 13 The Scribes Journal of Legal Writing 99, 121 (2010).) 

Moreover, a 2009 survey of Texas appellate judges showed that 83.2% believe that footnotes should be used sparingly or avoided altogether, while only 20.7% said they were appropriate for case citations. (Access the whole survey here.) If the judges are saying they'd prefer the citations in the text, then legal writers should put them in the text. Otherwise, we risk annoying the only audience that matters.

Second, Bryan seems to forget that the material in the citation is just as much a part of the argument as the statement of the law drawn from the source. When I was a law clerk, footnotes drove me crazy because I always had to check the bottom of the page to find out which court issued the opinion on which the party relied (and when). It makes a difference to the strength of the argument if the case is a recent one from a controlling court (e.g., a case last year from the Texas Supreme Court) or a very old case from an intermediate court or a court from another jurisdiction entirely. Bryan's solution is to build the court and date into the sentence. But trying to do that every time you cite a case makes the text more stilted and formulaic (and thus, less readable) than if the information was just included in a textual citation.

Third, Bryan makes no allowance for how briefs are being read. More and more judges are reading briefs on iPads or other tablets. And I can say from experience that footnotes are even more annoying on a tablet than they are on paper. I use a tablet almost exclusively to analyze and mark up my opponents' briefs. And I quickly tire of scrolling down to see the footnote and then scrolling back up to the text. It is impossible as a writer to know or control how the reader will zoom in or be looking at the document on a screen. And I think in that case, it is imperative to make the reader's job as easy as possible by keeping the citations near the arguments they support.

Fourth, while Bryan says that readers have a hard time with citations in the text, he again ignores the only audience that matters. The judges who disagree with Bryan say that they don't find the citations distracting. Therefore, Bryan's suggestion seems to be a solution in search of a problem.

Fifth, the fact that some judges put citations in footnotes for their opinions does not mean that lawyers should do the same thing. Judges have a different audience than lawyers. And as long as a substantial part of my audience says it prefers citations in the text, that's where I will put them.

I know that our readers have a variety of views on this topic. So, please, let me have it in the comments.

- Rich Phillips, Thompson & Knight

Comments

[Brian Larson]

I've done a short post on my blog suggesting that there is an alternative to in-line cites vs. footnote cites, though I admit it's not likely to be accepted. See: http://rhetoricked.com/2014/02/24/solve-legal-citation-problems-with-a-different-design/

[Rob Gilbreath]

Thanks, Rich. I agree completely. I've also given up on Garner's "deep issue" format for issues presented.

[David]

I agree with everything you said except point five. The fact that some judges use footnotes – at least to me – signals that they don’t get that there is a problem with looking up and down at the footnotes, i.e. it is really annoying to do so, and ignores the problem that almost everyone reads (or soon will read) on a computer screen, further complicating the problem of reading the footnoted material. The issue in five is just more evidence that footnotes should be abolished, or at least limited in number and content to almost parenthetical asides instead of anything of importance like a citation.

Maybe you can write a nice letter to the editor with your five points so that hopefully enough people will chime in to stop that well-intentioned nonsense. But my annoyance at having to go up and down on the screen probably results in a little hyperbole in calling the footnote movement well-intentioned nonsense.

[Rich Phillips]

Ray,

I appreciate you pointing out the Fifth Circuit-specific reasons for using textual citations. I think it also emphasizes the point that the most important consideration is the audience (judges and law clerks). If we annoy them or make it harder for them to see an important part of the argument, then we are doing our case and our clients a disservice.

Rich

[Ray Ward]

Bryan’s idea is fine for briefs read on paper, but it doesn’t work so well for briefs read on an iPad, for reasons you state well. I’ll add this one, at least for U.S. 5th Circuit briefs: The clerk’s office uses software that converts all the legal and record citations into hyperlinks. Legal citations are hyperlinked to Lexis or Westlaw, and record citations are hyperlinked to the electronic record. So as a briefwriter, I want to put that hyperlink where the judge can most easily use it.

[Jenny K]

I couldn't agree more. As a staff attorney for an appellate judge, it annoys me to no end to get briefs with footnoted citations. They are hard to read, because I want to know immediately the source of the cite--is it a higher court, our court, a sister court, etc., how old is the opinion, what is the petition or subsequent history. Jumping back and forth is very distracting, particularly when we are moving toward a paperless system and I am reading the briefs on the computer.