Thursday, February 20, 2014
Regular readers of this blog know that we're no strangers to controversy and that we often like to jump right in to the great debates of the day. So we're not afraid to jump in to the debate on where citations should go in judicial opinions: in the text or in a footnote?
Bryan Garner, one of the greatest legal writers of all time, published an article in the ABA Journal called Textual Citations Make Legal Writing Onerous, for Lawyers and Nonlawyers Alike. You can find it by clicking here or by going through that stack of magazines on your desk. Or by reading our earlier blog post on the issue by clicing here. Garner believes that judicial opinions will be easier to read if the case citations were in footnotes. And he's probably right about that, especially if you think of readers who didn't go to law school where they became used to seeing citations right there in the cases. And Garner makes another point -- it wasn't until 1985 when computers started showing up in law offices that we had an easy way to start using footnotes for citations.
Scott Fruehwald has come up with an alternative proposal, Textual Citations in Documents Submitted to Courts and Judicial Opinions: A Reply to Bryan Garner and An Alternative Approach. You can find it on his SSRN page by clicking here. His proposal relates to creating shorter citations. And the SSRN paper itself uses endnotes. How crazy is that?
And while you're at it, have a look at Raymond Ward's take on the issue at the (new) legal writer. He reminds us that in 2001, a judge in Louisiana appellate court, in writing the majority’s opinion in a case, put her legal citations in footnotes. This drew a concurring opinion from the chief judge (withdrawn before final publication), agreeing with the result but objecting to the use of footnotes for citations. So the author wrote her own concurring opinion defending her use of footnotes. The case is Ledet v. Seasafe, Inc., 783 So. 2d 611 (La. App. 2001). Raymond also brings in some interesting points on how the relationship of readers and text has changed with hyperlinks to sources cited.
You see, we're not afraid of the big issues here at the Legal Writing Prof Blog.