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Citations in footnotes: The never-ending debate.

There are four topics it’s best not to raise in polite discussion with an appellate lawyer: religion, politics, fully-justified versus ragged-right text, and citations in footnotes. Thirteen years ago, the last of these controversial topics generated some heat in the La. Third Circuit, in Ledet v. Seasafe, Inc. Today, people are still arguing about it. I have a little piece about the most recent stir up at The (New) Legal Writer.

My own opinion on the subject has evolved along with the technology. Legal writers started putting citations in text because, in the days of the typewriter, it was most impracticable to put anything in footnotes. Twenty years or so ago, the computer and programs like WordPerfect and Word freed us from the typewriter’s constraints. But even then, the brief was still designed to be printed on and read from paper.

Today, the game has changed. Many judges are now reading briefs on iPads or other e-readers. As pointed out by Rich Phillips, that, in itself, is a good reason to put the citations in text. And the briefs being read by U.S. Fifth Circuit judges on those devices are hyperlinked: thanks to the court’s magic software, all the legal citations are converted to Lexis or Westlaw hyperlinks, and all the record citations are converted to hyperlinks to the electronic record. To me, a 10-year veteran reader and writer of hyperlinked text, that is a huge, huge reason to put all the citations in text. If you doubt that, ask yourself whether this blog post would be improved by relocating all the hyperlinks to the bottom of this post. Would you like that? Didn’t think so.

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