(Cross-posted on the New Orleans Bar Association’s web site.)
One of the liveliest debates among brief-writing nerds is whether to put citations in text or in footnotes. Attend any CLE with a panel of judges in the Q&A session, and someone will put this question to the panel—guaranteed.
The person credited with starting this debate is Bryan A. Garner. Twenty-six years ago, in the first edition of his book The Winning Brief, he recommended putting citations in footnotes. That advice persists in the second and third editions. Thus, lawyers who put citations in footnotes cite Garner as their authority, while traditionalists who follow Garner’s advice in other areas beg to differ with him on this point.
My impression: most people on both sides of this debate misunderstand Garner’s advice. People on both sides seem to think that Garner’s advice is simply to relocate the citations from text to footnotes. Thus, people who think they’re following Garner’s advice aren’t. And people who think they’re criticizing his advice are shooting at the wrong target.
To follow Garner’s advice, you can’t stop at relocating your citations. As Garner says in The Winning Brief:
You must rewrite in a way that cues the reader to what your authority is. It’s just that you put this into prose; you work it into your paragraph, while ridding the text of volume numbers and page numbers—and thereby make life easier for the judge who reads your brief.[1]
Here’s an example from The Winning Brief. First, the “before” version, with citations in text:
Not this:
Courts can treat “custom” and “usage” as the dictionary for technical terms. See In re Envirodyne Indus., Inc., 29 F.3d 301 (7th Cir. 1994) (on appeal from bankruptcy court, the appeals court found that dictionaries, treatises, trade usage (in other words “specialized dictionaries”), and other third party publications, are useful and allowed for defining terms of a contract); Hurst v. Lake & Co., 16 P.2d 627 (Or. 1932) (Supreme Court of Oregon reversed because the court should have allowed evidence of custom and usage in horse meat industry where parties mean that 49.5% protein is equivalent to 50% protein in the industry); Fox Film Corp. v. Springer, 8 N.E.2d 23 (N.Y. 1937) (new trial was granted so court can hear evidence of custom and usage in the industry, put itself in the position of the parties, and use their language to find out the parties’ intent).[2]
If you’re lazy and just move the citation to a footnote—not what Garner recommends—you’d end up with something like this:
Not this either:
Courts can treat “custom” and “usage” as the dictionary for technical terms.19
__________
19 See In re Envirodyne Indus., Inc., 29 F.3d 301 (7th Cir. 1994) (on appeal from bankruptcy court, the appeals court found that dictionaries, treatises, trade usage (in other words “specialized dictionaries”), and other third party publications, are useful and allowed for defining terms of a contract); Hurst v. Lake & Co., 16 P.2d 627 (Or. 1932) (Supreme Court of Oregon reversed because the court should have allowed evidence of custom and usage in horse meat industry where parties mean that 49.5% protein is equivalent to 50% protein in the industry); Fox Film Corp. v. Springer, 8 N.E.2d 23 (N.Y. 1937) (new trial was granted so court can hear evidence of custom and usage in the industry, put itself in the position of the parties, and use their language to find out the parties’ intent).[3]
No one would call that an improvement. To really follow Garner’s advice, you’d have to rewrite the text to tell the reader what authorities you’re citing. In this example, you’d also want to weave the relevant parenthetical information into the text. The result would look something like this:
But this:
Courts routinely look to industry-specific custom and usage to define technical terms. In In re Envirodyne Indus., Inc.,19 for example, the Seventh Circuit found that trade usage, together with specialized dictionaries, can usefully help determine the meaning of a contract. Similarly, the Supreme Court of Oregon reversed a lower-court ruling for failing to allow evidence of custom and usage when interpreting contractual terms.20 And in Fox Film Corp. v. Springer,21 the New York Court of Appeals granted a new trial so that the lower court could hear evidence of industry custom and usage to determine the parties’ intent.
__________
19 29 F.3d 301 (7th Cir. 1994).
20 Hurst v. Lake & Co., 16 P.2d 627 (Or. 1932).
21 8 N.E.2d 23 (N.Y. 1937).[4]
Note that the text tells the reader the authorities being cited (the Seventh Circuit, the Supreme Court of Oregon, the New York Court of Appeals). What’s relegated to footnotes is the volume-and-page information.
Feel free to agree or disagree with Garner’s advice. Just be sure that you first understand it.
[1] Bryan A. Garner, The Winning Brief 180 (3d ed. 2014).
[2] Id. at 185.
[3] Not from The Winning Brief.
[4] The Winning Brief at 185.