the (new) legal writer

The never ending debate over citational footnotes.

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 This drew a concurring opinion from the chief judge (withdrawn before final publication), agreeing with the result but objecting to the use of footnotes for citations.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. 

For haters of the Bluebook

Over at Slaw.ca, Simon Chester has a nice post entitled Death to Needlessly Prolix Citation Guides, which links to and briefly reviews an article by Judge Richard Posner bemoaning the bloated Bluebook. Simon also links to the original 1926 first edition of A Uniform System of Citation (what we now call the Bluebook)—which came in at a svelt 26 pages.

The Bluebook (19th ed.): Something I don’t need to practice law

At my work desk are two citation guides within arm’s reach: the 17th edition of the Bluebook and the third edition of the ALWD Citation Manual. I consult ALWD occasionally. I can’t remember the last time I consulted the Bluebook.

Recently the good folks at the HeinOnLine Blog announced the upcoming release of the Bluebook’s 19th edition, urging readers to pre-order their copies. I can understand why they’re excited: law reviews are their business. Me, I practice law for a living. There are many resources I need to do what I do. Not among them is the latest edition of the Bluebook.

As a practicing lawyer, here’s what I need to know how to cite, in descending order of importance: statutes, cases, constitutions, treatises, law-review articles, and web pages. Everything I need to know to cite those sources should fit on the front and back of one page. And except for web pages, citation of every one of those sources was covered in the Bluebook I used in law school in the 1980s.

If someone can show me that the Bluebook’s 19th edition will help me cite stuff that (a) I might actually cite in real-world legal practice, and (b) isn’t covered by a citation guide I already own, I might consider buying it. Otherwise, I’ll pass.

Not in your Bluebook or ALWD

How do you cite restroom graffiti? Or a tattoo? Here’s how. (Hat tip: Southern Appeal.)

Two lessons

Alaska Employment Law calls our attention to a recent minute entry teaching two lessons about proper record citation:

1. If the court has a local rule for citing something, follow the rule.
2. If you don’t follow # 1 above, the court may not consider the material lacking a proper citation.

On one hand, I feel for the lawyer who got slapped with this minute entry. On the other hand, if the court is going to have a rule at all, then the court must also do something to enforce the rule. In this instance, the court made the lawyer re-do the submission using proper citations.

This must have been before the Bluebook

I just wanted to share this passage about citation problems circa 1910. The advice in the concluding sentence is just as good today as it was 97 years ago:

The learned counsel for appellee has cited the cases by book and page only, without giving their titles; but, strange to say (about the first time such a thing has come within the observation of the writer in his more than ten years’ experience on this bench), this slipshod mode of citation has enabled the court to find all the cases intended to be referred to; that is to say, the figures (by some miracle) have all turned out to be right, every one of them. As a rule, most of them and sometimes all (by misprint or otherwise) turn out to be wrong; and the court has not the slightest idea what cases counsel had in mind. It would seem to us that, if a case is worth the trouble of citing at all, it ought to be worth the trouble of citing in a way that it will be likely to be brought to the attention of the court; that is to say, by title, as well as by book and page expressed in figures, which generally turn out to be wrong.

Corbett v. Hanson, 127 La. 219, 221, 53 So. 529, 530 (1910).

Citing a multi-volume appellate record

This is a topic I’ve written about before, but I think it bears repeating.

We all know that, when referring to the record (or the appendix, or the transcript), we must give a page citation. For instance:

• R. 123.
• App. 456.
• Tr. 789.

I recommend that if the record (or appendix or transcript) is multi-volume, include the volume number too — even if the pages are numbered consecutively from one volume to the next. As with citing the case books or a multi-volume treatise, put the volume number before the abbreviation and the page number after.¹ Thus:

• 1 R. 123.
• 2 App. 456.
• 4 Tr. 789.

Neither the Bluebook² nor the ALWD Citation Manual³ mentions giving the volume number, but I think you should give it anyway. Why? Let’s say you refer your reader to transcript page 3478. If your citation is “Tr. 3478,” you force the reader to figure out which volume contains page 3478. The result: A minute or so of the reader’s time that otherwise would have been spent thinking about your argument will instead be spent searching that voluminous record for the volume containing that page.  Give the poor reader the volume number, and you’ll maximize the time the reader spends thinking about your argument.

Remember, the purpose of a citation is not just to comply with court rules, or to give the bare minimum information needed to find the supporting material. The purpose is to enable the reader to find the supporting material instantly. So if you refer the reader to anything that comprises more than one volume, always give the volume number — even when the pages are consecutively numbered from one volume to the next.

Some people cite a multi-volume record by giving the abbreviation, followed by the volume and page numbers separated by a colon. Thus:

• R. 1:123.
• App. 2:456.
• Tr. 4:789.

The problem with this solution is that it may cause confusion. Generally in a citation, a colon is used between the page number and the line number.⁴ If you use a colon to separate volume number from page number, you may throw off readers who expect a colon to separate page number from line number.

We cite the law books by volume number, abbreviation, and page number. For example: Younger v. Harris is 401 U.S. 37; it’s not U.S. 401:37. Use the same volume-abbreviation-page convention to cite any multi-volume source, including the appellate record.

__________
¹ See Bryan A. Garner, The Redbook § 8.5 (2002).
² The Bluebook, Practitioner’s Note P.7 and § 10.8.3 (17th ed.).
³ Darby Dickerson, The ALWD Citation Manual § 29.5 (3d ed.)
⁴ See The ALWD Citation Manual § 29.5(b); The Redbook § 8.5(b).

If only the Bluebook were this much fun

For canon lawyers everywhere, Dr. Ed Peters presents his "solaranite-powered guide to the footnotes of the 1917 Code" of Canon Law. It's everything you need to know to interpret canon-law citations, according to a Plan 9 From Outer Space theme. (Hat tip to dotCommonweal.)

Guide to Foreign and International Citations

The N.Y.U. Law School's Journal of International Law & Politics has released its Guide to Foreign and International Legal Citations (pdf, 296 pages). Unlike the Bluebook and the ALWD Manual, the guide "rel[ies] on the source jurisdiction's internal citation system rather than an externally imposed standardized form ..." This allows writers who intend to submit materials to a foreign court or journal to conform their citations to the jurisdiction's own standards. It also allows readers of materials from foreign jurisdictions to understand and interpret the citations. (Hat tip to beSpacific.)

Citation of unpublished decisions soon to be okay in Louisiana

This one is for Louisiana lawyers. Currently in Louisiana, unpublished decisions of the courts of appeal cannot be cited. See Rule 2-16.3 Unif. R. La. Cts. App. That will change when Act 644 of the recently concluded legislative session becomes effective. The Act creates new Code of Civil Procedure Article 2168 which (a) requires Louisiana appellate courts to post their unpublished decisions on their respective web sites; and (b) authorizes citation of those unpublished opinions as legal authorities.

p.s. Coincidentally, the U.S. Supreme Court has recently approved new Fed. R. App. P. 32.1, prohibiting the federal appellate courts from restricting citation of unpublished opinions. Texas appellate lawyer Scott Stolley has written a commentary about new Rule 32.1, which just arrived in my in-box and which I hope you can read by clicking on the link. I don't know whether this satisfies the commenters' constititional concerns (see first two comments to this post), but it certainly demonstrates a trend toward approving citation of unpublished decisions.