Karin Ciano, The Daily Record Newswire
So what do you think: Should citations be in text or footnotes?
I’m a text fan myself. Despite Bryan Garner’s efforts over the past two decades, most recently in an ABA Journal article earlier this year, I still don’t feel outrage at the sight of “123 N.W.2d 456” or “Minn. Stat. sec. 123.45” in the text of a brief or opinion.
Part of this is a fundamental disagreement as to the role of citations in legal writing. Garner believes citations belong in footnotes because casual readers don’t need to see them. So rather than let them roam freely in the streets, we must banish them to the basement where they won’t scare the tourists.
I don’t agree. I love you, casual readers, but it’s not all about you. For lawyers, citations are the heart of the discussion, not a sideshow. As Garner’s co-author Justice Antonin Scalia has pointed out in Making Your Case: The Art of Persuading Judges, our statements are judged not just for sense, but for source. It actually matters which court said it, or which legislature enacted it, and when. If I can’t easily see where a legal rule came from, I can’t evaluate its weight or importance to the argument. Citations embedded in text solve this problem.
Garner believes a better alternative is to call out a case’s key stats in the text—“as this Court held two years ago in Grammar Nerds v. The World”—and utterly eliminate substantive footnotes. Nice idea in theory, one problem in reality: this is a trade most of us don’t want. Although I think forcing writers to write actual sentences about their cases might lead to better analysis (and fewer string cites, one can only hope), I am not convinced doing so would make briefs shorter or clearer. And asking lawyers to give up substantive footnotes is about as likely as getting your kid to order the salad at McDonald’s. Famously footnote-free opinion writers such as Justice Stephen Breyer, Judge Abner Mikva, and Judge Richard Posner are made of sterner stuff than you and I; if I can’t drop a snarky substantive comment into a footnote now and again, really, what’s the point?
Also, most citations aren’t all that ugly. I know, Garner presents horrific illustrations, but c’mon — who really writes like that? Done right, citations are a lean, efficient way to convey information we need. Law school teaches us how to absorb their content while largely ignoring their form — to take in information “almost subliminally,” as Scalia observes, and use it to evaluate a statement as it’s being read.
Which brings up another problem. If you actually have to read citations, the footnote cure is worse than the disease. Efficient reading is a series of short, rapid eye movements (known as saccades) left-to-right along a line of text. It is thought that each eye movement allows us to take in about 10 characters at a time, and about fifteen percent of the time, even skilled readers must track back to text already read. That’s a lot of eye movement just to scan a line. Throw in frequent trips to the bottom of the page and back, and one would expect even a skilled reader to lose accuracy, speed and processing power.
That was certainly my experience; when serving as a law clerk, I took considerably longer to work with briefs whose citations appeared in footnotes. Remember, part of a law clerk’s job is to connect source and statement, and verify your credibility as an advocate. Text citations made this easy. With one seamless motion, without even leaving the line of text, I was able to pull a case, find the page, and compare it to the lawyer’s statement.
Footnoted briefs required juggling. While keeping the lawyer’s statement in my short-term memory, I had to recall the footnote number, hunt for its mate at the bottom of the page, remember the citation, pull the case, find my original place in the text, and then make the comparison. More steps, more clicks, more chances for error, more time needed to check and double-check.
I’m not the only one to notice that reading footnotes is at least as distracting as reading citations, if not more so. Scalia observes footnotes “force the eye to bounce repeatedly from text to footnote” and back. Posner believes footnotes “prevent continuous reading” and “make the reader work harder for the same information.” “If footnotes were a rational form of communication,” writes Mikva, “Darwinian selection would have resulted in the eyes being set vertically rather than on an inefficient horizontal plane.” And then there’s Noel Coward: “Coming across a footnote is like going downstairs to answer the doorbell while making love.” ‘Nuf said.
Garner claims that using footnotes exclusively for citation will lead to better sentences, shorter paragraphs, clearer transitions and sounder legal analysis. Maybe so. Yet if the issue is not the text citations themselves, but rather the sloppy sentences and perfunctory analysis they enable, there’s a simpler cure: write the analysis first and add the citations later.
Try it. Next time you’re writing a brief, after you read each case, give it one-word nickname. It can be a party’s name, or, if you’re working with a bunch of similar-sounding sources (Hughes I, Hughes II, Hughes III), any name that differentiates them in your mind (Hughey, Dewey, Louie). Write your analysis using these names as placeholders for citations (“Grammar nerds rule. Hughey”). Imagine you’re having a conversation about the source — or better yet, have an actual conversation with a colleague, and write the analysis afterward. If you remember a quote you liked, toss in as much of it as you recall, but resist the impulse to go back to your sources or expand your quotes until you’ve completed your draft.
When you have a draft you like, read it aloud and edit for sense. This is the moment when you can vary sentence length and structure, fix grammar mistakes, build flowing transitions, and basically write the darn thing as well as you can. Then, and only then, when your sentences are strong enough to handle it, go back into your sources and add the citations (to the text of your brief, where they belong).
Bonus track: if you see one of your sentences calls for a long citation in the middle, rewrite the sentence so that the citation can be moved to the end. Trust me, we’ll all thank you.
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Karin Ciano is owner of Karin Ciano Law PLLC and director of Twin Cities Custom Counsel PLLC.
