Put all citations into footnotes

Because of the historical influence of the typewriter, lawyers tend to put their citations directly into the text. Most lawyers have never thought about why they do it this way—they just copy what they see other lawyers do. And they are in plentiful company: briefs filed in courts across the country are full of in-text citations.

There are a number of problems with in-text citations:

  • They interrupt the flow of the text.
  • They make the reader work harder to understand the text.
  • They can make the reader miss important text altogether.
  • They obscure your text from you, so that you can’t see flaws when editing.

Well-crafted arguments develop from sentence to sentence, with each sentence building on the last and echoing recent elements and themes. They take advantage of all of the tools of rhetoric, including memorable images and observations, assonance, powerful wording, simplicity, parallelism, and repetition.

All of that is obscured by the visual and informational interruption of a citation. The interruption is visual because the citation takes up a lot of space, and forces the reader to skip over multiple words or lines before the text resumes. The citation will almost certainly contain numbers that don't refer to any quantity in the case, capitalized words that don’t start sentences or refer to the names of persons in your case, and italics that don’t reflect text that you are trying to emphasize.

The interruption is informational because a reader—even one who is just trying to find where the text starts again—will inevitably pick up words or numbers here or there that have nothing to do with your prose. If you are a judge struggling to understand the plaintiff’s argument about how a sales contract was breached, and stumble in the middle of a sentence across a citation to Funky Chicken Enterprises v. Blumberg, will your attention not wander just a little? A funky chicken is a lot more interesting than a principle of contract interpretation.

Try moving all of your citations to footnotes; you may be surprised by how much clearer your writing becomes.

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One Response

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  1. I very much agree with the position taken in this post and followed up by pt.2 and the discussion on not using substantive footnotes. That said, I believe it important to note that in some instances the placement of citations is mandated by court rules. See, e.g., Madrid v. Bloomington Auto Co., Inc., 782 N.E.2d 386, 388 n.1 (Ind. Ct. App. 2003) (“In their appellant’s brief and reply brief, the Madrids placed their citations in the footnotes ‘for ease of reading the body text, not to defeat length limitations or contravene’ Ind. Appellate Rule 22. Appellant’s Brief at 2, n. 1. However, we have disapproved of this practice. See, e.g., Quigg Trucking v. Nagy, 770 N.E.2d 408, 414 n. 1 (Ind. Ct. App. 2002) (noting that the ‘practice of providing cites in footnotes fails to comply with the requirement in [Ind. Appellate Rule] 22 that a party follow the dictates of the Uniform System of Citation (Bluebook)’”)).

    An interesting side note is that the Indiana Supreme Court experimented with transition to footnote based citations back in 2005 in several opinions. See, e.g., Merritt v. State, 829 N.E.2d 472, 473 n.3 (Ind. 2005) (“As part of an experiment, this opinion departs from the usual style of citation and footnote use. Cf. Indiana Appellate Rule 22. Generally adhering to the footnote recommendations of Bryan Garner, The Winning Brief, 139–47 (2d ed.2004), all citations unessential to the text are placed in footnotes, and substantive matter that otherwise might appear in footnotes is included in the text. This revised format does not meet with universal approval. See Richard A. Posner, Against Footnotes, 38 Court Rev. 24 (Summer 2001)”). The experiment was ultimately not adopted.

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