Who would have thought that, for over 13 years now, the most controversial subject among litigation-oriented legal writers would be the location of legal citations in footnotes versus in text? Back in the spring of 2001, a judge in an intermediate 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 This drew a concurring opinion from the chief judge (withdrawn before final publication), agreeing with the result but objecting to the use of footnotes for citations.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. 3 Cir. 2001). The controversy stirred up by Ledet caught the attention of the New York Times. Here is my own little casenote on Ledet.
Fast-forward 13 years. Bryan Garner writes an article for the ABA Journal recommending the use of footnotes for legal citations—a position he’s held since I took my first Garner seminar in 1998. His fellow Texans Rich Phillips and Jason Steed write blog posts begging to differ. Different decade, pretty much the same debate.
As for me, I won’t presume to tell you what to do. I will suggest that you read Bryan’s article to see what he is really advocating—it’s more involved than just relocating the citations from text to footnotes. Read Rich’s and Jason’s responses. And make up your own mind. But don’t be too quick to criticize a writer who makes the opposite choice, because the writer probably has some good reasons for that choice.
If you happen to be writing a brief for the U.S. Fifth Circuit, I have one more thing that I recommend you read: my own blog post on the reading habits of Fifth Circuit judges and its effect on how I have since been writing my Fifth Circuit briefs. Here is the short version: most Fifth Circuit judges not only read briefs on iPads or other e-readers; the briefs they are reading are hyperlinked. Before being uploaded to the judges’ e-readers, the briefs are run through a program that converts every legal citation to a hyperlink to Lexis or Westlaw, and converts every record citation to a hyperlink to the electronic record. That means that the judges can do exactly what you are doing while reading this blog post: click on the hyperlink to be taken directly to the referenced material.
In light of this information, I have been putting all citations in main text: both legal citations and record citations. Here’s why. I’ve been blogging in one form or another for about 10 years now, meaning that I have 10 years of experience reading and writing hyperlinked text. Believe me when I tell you that most readers of hyperlinked text want the hyperlinks as close as possible to the material supported by the hyperlink. They don’t want to scroll down the page to find the hyperlink. If I were to rewrite this post to footnote all the hyperlinks, forcing you to scroll to the bottom of the post to find them and link to the stuff I refer you to, you wouldn’t like it.
That is my choice for U.S. Fifth Circuit briefs. For state-court briefs, I usually put legal citations in text and record citations in footnotes. I use other strategies to make the textual legal citations unobtrusive and to preserve the readability of the text. But I don’t go “tsk, tsk” if another brief-writer makes a different choice.