Four years ago, a front-page New York Times story reported on a surprising legal battle: whether lawyers should continue putting citations in the text, or whether they should relegate citations to footnotes.
The fight rages on today! In fact, I get more questions about this issue than almost any other.
Let’s start by summarizing the two competing views. Then I’ll offer my own take on this hot topic.
The Pro-Footnote Camp
Its leader: Bryan Garner
Major tenets:
- Citations in the text are simply hard to read.
- Citations in the text hide logical flaws.
- Citations in the text alienate the lay public.
- Putting citations in footnotes allows you to include string cites, which irritate judges when they interrupt the text.
- Putting citations in footnotes forces you to explain in the text what the case actually means.
The Pro-Text Camp
Its leader: Judge Richard Posner
Major tenets:
- Citation footnotes make readers work harder to get the information they need.
- Citation footnotes suggest academic scholarship rather than legal analysis.
- Legal professionals are accustomed to reading citations in the text.
- Trying to appeal to the lay public is futile: although legal arguments should make sense to a layperson, the writing itself need not.
- If the goal is readability, lawyers and judges should simply write their argument and opinions first, then add their citations to the text.
A Modest Proposal
Where do I come down? In theory, Bryan Garner is right. In practice, though, the legal world does not appear ready for citation footnotes. My advice: don’t put citations in footnotes unless you’re sure your judge wants you to. Only a few have said they do.
I would, however, suggest the following compromise:
Put your citations after your sentences, not at the beginning or in the middle.
Thus, not this:
Likewise, in Roy v. Volkswagen of America, Inc., 896 F.2d 1174 (9th Cir. 1990), cert. denied, 500 U.S. 928 (1991), the Ninth Circuit reinstated a $3,000,000 verdict in favor of a family injured in 1982 when their van rolled over.
But this:
The Ninth Circuit has found, for example, that a jury could award $3 million to a family injured in a rollover. Roy v. Volkswagen of America, Inc., 896 F.2d 1174 (9th Cir. 1990), cert. denied, 500 U.S. 928 (1991).
By leaving citations in the text but isolating them from your message, you can address the readability concerns of the pro-footnote camp while still keeping with tradition.
