Unclutter the text by footnoting citations.

In 1984, when I was clerking for the Fifth Circuit, I noticed that Judges John Minor Wisdom and Alvin Rubin were writing some wonderfully clean judicial opinions. They had stripped the text of all citations--not case names, but all the numbers and other bibliographic information that typically follow the case names--and put them into footnotes. As a result, their written opinions actually had a discernible train of thought.

Now that's an unusual thing in legal writing.

The age-old convention for briefs and judicial opinions is that citations belong in the text. That's never been so for law reviews and treatises, but there must be a good reason why briefs and opinions are different. Right?

Wrong. The reason is quite simple: The traditional method of preparing briefs involved typewriters, and it was all but impossible to get citations in footnotes with manual typewriters. That's why citations were put in the text in 1900, and that's why they were still there in 1975.

Meanwhile, the number of cases cited in a typical brief exploded between 1900 and 1975. And now, the situation has gotten even worse. Computer research and the proliferation of case law have made it easier than ever to find a passel of cases to support virtually every sentence in a brief.

So, over time, the pages of briefs have become increasingly cluttered. Some briefs are now virtually unreadable. Others are readable, but only by a reader who is mentally and emotionally capable of dealing with lots of underbrush.

Citations have posed a major problem not just for readers but also for writers. Many lawyers are in the habit of putting a citation or two between sentences, thereby weakening the connections between consecutive sentences, and then distrusting the reader to make a connection. Thus, they repeat the relevant part of the preceding sentence in the one that follows, so the sentences get longer and longer and more and more repetitive. All this is anathema to good writing style.

Although writers continue to experiment with possible solutions--such as putting citations in smaller type or in colored ink, both of which would violate the Federal Rules of Appellate Procedure--the sensible solution is to use reference notes. That is, put citations--and only citations--in footnotes. And write so that no reader needs to look at your footnotes: Give the name of the court you're quoting, the year in which it wrote, and, if necessary, the name of the case up in the text. Just get the numbers out of the way.

"Why not endnotes?" you might ask. Well, endnotes simply aren't handy in a long piece of writing. It's annoying for the reader who really wants to see the citation to have to flip back and find the relevant note. You've probably tried to read books that annoyed you in this very way.

Finally, if you think this is such an off-the-wall idea, ask yourself why you've never seen a biography written like this:

Holmes was ready for the final charge. His

intellectual powers intact (Interview by Felix

Frankfurter with Harold Laski, March 23, 1938,

at 45), he organized his work efficiently so that

little time was wasted (3 Holmes Diary at 275;

Holmes letter to Isabel Curtain, June 24, 1923).

He volunteered less often to relieve others of

their caseload (Holmes court memo, July 24,

1923, at 4), and he sometimes had to be

reassured of his usefulness (Brandeis letter to

Felix Frankfurter, March 3, 1923). His doctor

gave him a clean bill of health (Mass. Archives

doc. no. 23-47899-32, at 1), told him his heart

was "a good pump" (Holmes letter to Letitia

Fontaine, June 25, 1923), and that very few

men of Holmes's age were "as well off as he

was" (id.)--to which Holmes dryly replied that

"most of them are dead" (Memo of Dr.

Theobald Marmor. June 26, 1923). But he was

pleased that the "main machinery" was "in

good running order" (Holmes letter to Letitia

Fontaine, June 25, 1923). and he frequently felt

perky enough to get out of the carriage part

way home from court and walk the remaining

blocks with Brandeis (Brandeis letter to Clare

Eustacia Bodnar, July 22, 1923).

A historian would be insane to ruin a good story that way. But brief-writers commonly do something very much like it.

Besides improving readability, putting citations in footnotes allows you to strip down an argument and focus on what you're really saying. In the illustration below, for instance, you'll see a lack of coherence once the citations have been removed. This type of incoherence is commonplace, but textual citations help mask it.

An illustration

Here's an example of how textual citations can clutter a brief. Try reading through this passage without getting bogged down in case names and page numbers:

Under California law. an action for relief on the

ground of fraud must be commenced within

three years after the aggrieved party 

discovered the alleged wrongdoing. April

Enters., Inc. v. KTTV, 147 Cal. App. 3d 805, 826

(1983); Winn V. McCulloch Corp., 69 Cal. App. 3d

663, 672 (1976). Because California courts

have determined that negligent

misrepresentation is a form of fraud, Gold v. Los

Angeles Democratic League, 49 Cal. App. 3d

365, 373 (1975), they have held that the

applicable statute of limitations is the same as

for causes of action based on fraud, Luksch v.

Latham, 675 F. Supp. 1198. 1204 n. 10 (N.D. Cal.

1987); see also Bowden v. Robinson, 67 Cal. App.

3d 705, 715-17 (1977).

Under California law, a claim based on

negligence must be filed within two years of the

date of injury. Cal. Code Civ. P. [sections] 339(1); Burt

v. Irvine Co., 237 Cal. App. 2d 828 (1965)

(holding that an action against a corporate

director for loss to corporation through

director's negligence is governed by two-year

statute). A cause of action in tort accrues when

the allegedly wrongful act was committed.

Cline v. Yamaga, 97 Cal. App. 3d 239, 245

(1979); Sonbergh v. MacQuarrie, 112 Cal.

App. 771, 773 (1952).

Under California law, intentional infliction 

of emotional distress, as an injury to the

person, is governed by the one-year statute of 

limitations contained in California Code of

Civil Procedure [sections] 340(3). Cantu v. Resolution

Trust Corp., 4 Cal. App. 4th 857, 889 (1992).

Under [sections] 340(3), claimants must commence

their action within one year after the cause of

action accrued. Cal. Code Civ. P. [sections] 340(3). This

statutory period begins to run once the claimant 

suffers severe emotional distress as a

result of outrageous conduct. Id. (holding that,

where filing of complaint was the outrageous

conduct, cause of action accrued at the

moment complaint was filed).

When you strip the citations out of the text, you're left with a much cleaner page. But now you can more readily examine what's actually being said:

Under California law, an action for relief on the

ground of fraud must be commenced within

three years after the aggrieved party

discovered the alleged wrongdoing. Because

California courts have determined that

negligent misrepresentation is a form of fraud,

they have held that the applicable statute of

limitations is the same as for causes of action

based on fraud.

Under California law, a claim based on

negligence must be filed within two years of the

date of injury. A cause of action in tort accrues

when the allegedly wrongful act was

committed.

Under California law, intentional infliction of

emotional distress, as an injury to the person, is

governed by the one-year statute of limitations

contained in California Code of Civil Procedure

[sections] 340(3). Under [sections] 340(3), claimants

must commence their action within one year after

the cause of action accrued. This statutory

period begins to run once the claimant suffers

severe emotional distress as a result of

outrageous conduct.

Not much there, right? Without the citations, the flaws in the text are fully exposed. Besides wordiness and repetitive sentence structure--including three consecutive paragraphs beginning the same way--the passage lacks a clean analytical line in which one idea logically flows from another.

The following revision, which moves the citations to footnotes, expresses a more coherent train of thought:

Under California law, the three-year statute of

limitations for fraud begins when the aggrieved 

party discovers the alleged wrongdoing.(1)

Because California courts have determined

that negligent misrepresentation is a form of

fraud,(2) they have uniformly held that the

three-year statute applies.(3)

But a claim based on negligence must be

filed within two years of the injury, measured

from the time of the allegedly wrongful act.(4)

Meanwhile, intentional infliction of

emotional distress, as an injury to the person, is

governed by the one-year limitations period of

[sections] 340(3).(5) This period begins to run once the

claimant suffers severe emotional distress as a

result of outrageous conduct.(6)

It may not be a masterpiece, but it's more direct and readable. That's assuming, of course, that the reader actually wants to know what the writer is saying.

Will it really work?

Two final points, in answer to some common qualms. First, many writers fear that if they don't put citations in the text, the judicial reader won't know what court is being cited or how recent the cases are. In fact, though, you generally won't be footnoting naked propositions of law. Instead, you should say something like "New Jersey courts have held . . ." or "Section 28.007 of the Insurance Code requires . . ." so that the reader can get the gist of your authority without having to glance down at the bottom of the page.

Second, many judges complain about footnotes.(1) True, other judges praise them,(2) but if you listen closely, the complaints are strong enough to give any sensible writer pause. In fact, I believe that the complaints are valid when directed at footnotes that contain substantive discussion. But I also know that most judges who hear the merits of reference notes and see good examples generally agree that textual citations are bad.

Whenever I teach a seminar on judicial writing, most judges conclude that it makes sense to put citations in footnotes. A few others, however, think otherwise. And if you know a judge's preference, take heed of it. Just don't let your temporary heed become your regular habit.

Change ahead

Reform is coming. It may take a generation or two, but it's coming. Gradually, legal writers will learn to put all citations in footnotes and to refrain from saying anything else in footnotes. The only frightening prospect is that, when you're putting together a brief, assembling the citations won't be enough: You'll have to have a coherent thought worth expressing.

Notes

(1.) See, e.g., Abner J. Mikva, Goodbye to Footnotes, 56 U. COLO. L. REV. 647 (1985) (complaining about footnotes while acknowledging the possible merits of reference notes).

(2.) See, e.g., Edward R. Becker, In Praise of Footnotes, A.B.A.J., July 1996, at 104 (defending footnotes in judicial opinions).

Bryan A. Garner is the author of The Elements of Legal Style (1991), A Dictionary of Modern Legal Usage (2d ed. 1995), and other books on legal writing. Through LawProse, Inc., of Dallas, he conducts CLE seminars on legal writing in major cities throughout the United States.