March 19, 2013Signposting, Linking, and Flow
In a previous post I told you that you should move all citations to footnotes. You can’t do this by just cutting and pasting, however. Simply moving each in-text citation into a footnote is a good first step, but once you do that you need to decide what information to pull back from the footnotes into the text. First, consider the importance to your argument of the proposition that the citation supports. If it is not very important, or is uncontroversial and familiar to the court, you may want to leave the citation completely out of the text. Thus:
Under Oklahoma law, the plaintiff must prove that some wrongful act by the defendant caused her injury.1
If the proposition is important, you are more likely to want to say something about the citation. For example, if your citation is to a decision by a court which your judge must defer to, you will want to point that out in the text:
The Oklahoma Supreme Court held last year that in a pharmaceutical product liability lawsuit like this one, a drug company’s duty to warn runs only to the prescribing doctor and not—as plaintiff implies in her complaint—to any physician who is allegedly in a position to prevent the injury.2
And if the point is sufficiently devastating, relevant, and helpful in advancing your argument, bring it all in:
This Court ruled four years ago in Stafford v. Wyeth that a treating physician’s testimony that he “would have prescribed Pondimin to a patient with the same characteristics as [the plaintiff]” if he had known about the relevant risks not only discharged the defendant’s burden of proof on the heeding presumption, but also warranted summary judgment for the defendant.3 Here, Dr. Addison testified at his deposition that “if I knew then what I know now about the risks of this drug, yes, sure, I would still have prescribed it because it’s the right choice for this patient.”4
This should not be different from your practice with in-text citations, by the way. You can’t count on a judge or clerk reading each citation and picking up the things that you think are important about it. If you want to make sure that they notice something important about your citation, you need to tell them.
Moving citations to footnotes doesn’t apply to quotations from authorities, including block quotes. If those are important enough to have at all, they should be in the text. Footnote the citation normally.