No Footnoted Citations for Us, We're Courts

Law review articles put citations to cases and statutes in footnotes. Briefs generally shouldn't.

From a federal district court opinion I was just reading,

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.

I remember asking a federal appellate judge once why courts don't shift more to the citations-in-footnotes style, which I had thought looked cleaner and made it easier to follow the flow of the argument. He laughed, and said something like, "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

Now of course different judges and different courts have different views, so you should figure out how things are done in the court in which you're practicing. But, generally speaking, my advice is to avoid footnotes, except for

1. Citations to secondary sources, such as newspaper articles, law review articles and the like -- these tend to be long (especially when you include URLs) and especially distracting, and at the same time not so authoritative that the judge will likely particularly want to see them in the text.
2. Occasional citations to long strings of cases or statutes supporting a proposition (e.g., a list of the 30 statutes in states throughout the country that support your proposition, especially when you've already cited the two most relevant ones in the text).
3. Very rarely, substantive discussions that are put in just for the sake of completeness or candor, and that you wouldn't mind the judge never noticing.

I keep thinking that, in Russian, citation ("ssylka," or ??????) is the same word as "internal exile" -- the literal meaning is something like "a sending," in that you're being sent either to another source or to Siberia. To be sure, the word applies to all citations, whether in a footnote or otherwise; but the footnote especially sends readers to some other place, and they might not want the trouble of going there and back.

Comments

[Eidde]

"in Russian"

I hate to think what Putin does to the Russian debate team if it doesn't footnote properly.

[David Nieporent]

In Soviet Russia, footnotes cite you.

[santamonica811]

I suspect that, for more than half the readers, your joke will go right over their heads. But for those of us who are, um, more advanced in age, it was a pretty funny comment. [For you others, just Google "Yakoff Smirnoff."]

[David Bremer]

The whole "in Soviet Russia" thing had a revival several years ago. I took it as a reference to the internet meme than a comic who 30 years ago stopped making appearances outside of maybe Branson, Missouri.

http://knowyourmeme.com/memes/in-soviet-russia

[tkamenick]

A) No modern court should be using page limits instead of word limits. I assume that the reference to "page formatting" is not that footnotes violate formatting rules but that the formatting rules limit the amount of shenanigans one can do with page limits.

B) I also agree that generally speaking, reading is easier without citations in the middle of things. But the counter to that is citations are important parts of legal arguments, so that's a balancing thing.

C) Here in Wisconsin, one of our supreme court justices is noted for all but her most important citations down in footnotes. So even among courts this is not a clear preference thing.

[MatthewSlyfield]

C) Hence the advice in the main article to "figure out how things are done in the court in which you're practicing."

[FlameCCT]

Would that happen to be Big Shirl?

[MightyMouse]

"You view citations to authority as support for the argument. I view them as often the most important part of the argument."

So exile is the article?

[loki13]

I love footnotes. Truly. That said, loving footnotes is a disease that a good attorney has to cure themselves of.

I have a very simple rule when it come to a footnote. If I remove the footnote completely, what happens?

If the brief/motion/pleading is still viable, then it's okay as a footnote.
If the information or citation is absolutely critical, then it needed to be in the body.

For that reason, I use footnotes only in the following circumstances (mostly the same as Prof. Volokh):
1. String cites. When I absolutely have to show a lot of authority for some reason.
2. Secondary sources (law review articles, etc.).
3. Snarky comments. I kid, mostly. But if I absolutely have to put a deadpan issue that is buried, but might be entertaining, it is in the footnote (for example, opposing counsel claiming something happened on 5 mutually exclusive dates, assumedly due to a scrivener's error.).

[David Nieporent]

Exactly. Footnotes are for asides and should be used sparingly. If there are more than a handful in a brief, you're probably doing it wrong.

(Of course, as always it depends on what the judge's preferences are. For instance, when I submitted a post-trial brief recently, the judge wanted (of course) citations to the trial transcript and/or trial evidence for any asserted fact. But she wanted those citations in footnotes:

Plaintiff expressly informed the defendant of X before the incident happened.? Defendant, however, ignored this information.? Then such-and-such occurred.

--
? Trial Transcript 13:4-19
? Trial Transcript 15:12-22

[MonitorsMost]

At the trial court level, I always put citations to the record in the footnotes. Unlike citations to legal authority, citations to fact don't convey any useful information to the judge's reading of the argument. Trial court record citations are usually longer than appellate court citations to the record (Declaration Jim Bob Cooter at Exhibit G vs. CP 138-45) and thus break up the brief's flow more.

At the appellate level, I use footnotes for asides that would break the flow of the argument. Loki13 mentions "snarky comments" which might be going too far, but is a decent illustration. A good appellate brief contains just the lightest touch of condescension toward the opposing party's position. However, if the other side goes over the top (which is unfortunately common), then you play it straight. Judges dislike what they see as bickering.

[Will395]

A string of arbitrary numbers does not belong anywhere in the body text of a document a person is going to read. At the same time, it is silly to put things in quotations and cite it as authority if you do not explain the source of the authority. The solution is obvious. In the body of the document, you explain the relevant aspects of the authority, and then you footnote the arbitrary numbers that function to allow the reader to retrieve the authority. For example, "In the 1997 case of Agostini v. Felton, the United States Supreme Court held that ... "[fn 1] , and [fn1] reads 521 U.S. 203 (1997) or the like.

[loki13]

"A string of arbitrary numbers"

They numbers aren't arbitrary. At all.

I like to be able to read the argument, without going to footnote. From those "arbitrary" numbers, I learn a lot.

I learn, for example, whether or not they are using pinpoint cites (it's not good if they aren't).
I learn the year and the court. Which is kind of sort of important.

I absolutely cannot stand it when people bury their authorities in footnotes.

[David Nieporent]

I'm with Loki. It's useless for me to see a legal proposition cited to Johnson vs. Industrial Supplies Ltd. (I made this up) without knowing whether the case is from the Second Circuit (binding, assuming it isn't a century-old case), Southern District of New York (persuasive, since that's where I am), Ninth Circuit (reasonably persuasive as long as Reinhardt didn't write it), or the Western District of Kansas (does that even exist)? If you're not including the actual "arbitrary numbers" in the body, you might as well not include the case name either. (But of course you should include both in the body.)

[Will395]

Hi Loki, I guess you didn't get through my comment before replying. I said that in order for authority to be persuasive, you should mention in the body the year and Court. The footnote is for the functional looking up of the authority.

It's true that then you won't see if they're using "pinpoint cites" without going to the footnote, but is the test of whether they are or aren't using pin cites so important it has to be in the body and not the footnote?

Finally, the numbers are arbitrary. That doesn't mean they're not functional. If the case name and date are in the body, There's no need to have the numbers in the body.

[jph12]

Your proposal takes up too much space and results in stilted writing.

[loki13]

Now that you fully explain it, your proposal is even worse. Do you get that?

If I am writing a legal argument for an appellate court (let alone a trial court!) do you know what would be terrible? Truly terrible? Having to put, in the actual sentence, the case name, the court that decided it, and the year it was decided EVER TIME I AM CITING TO AN AUTHORITY!

That wouldn't flow, at all, would look terrible, and completely gets rid of what might be only good part of such an idea- to have the full authority in the footnote.

It's like you came up with the absolute worst possible solution of both worlds. I'm almost impressed! 🙂

[Will395]

Hi Loki, why would you need to put in the court name and the year every time you are citing to it? That is not what I have proposed.

By the way, as you are probably aware, bluebook citations do not include court name and year every time the cite is made. Thus, your preferred method of citation suffers from the same flaw that you PUT IN ALL CAPS.

[MonitorsMost]

Wish judges would follow their own advice. I hate reading appellate opinions that use footnotes because Westlaw turns them into endnotes. Hyperlinked of not its a pain in the ass.

[David Bremer]

That's an option that you can fix when printing. But then they become inline blocks of text, which aren't much better.

[Paul Alan Levy]

My check on Westlaw suggests that this is a personal bugaboo of ONE particular federal district judge in the Western District of Washington, who has included this language in 21 opinions.

IRONY ALERT. IRONY ALERT: He consistently sticks his complaint into a footnote

[Paul Alan Levy]

Compounding the irony noted a bit ago, the footnote from Judge Jones includes a number of citations

Here it is, in full:

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. See Local Rules W.D. Wash. LCR 7(e). Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." Wichansky v. Zowine, No. CV-13-01208-PHX-DGC, 2014 WL 289924, at *1 (D. Ariz. Jan. 24, 2014). The Court strongly discourages the parties from footnoting their legal citations in any future submissions. See Kano v. Nat'l Consumer Co-op Bank, 22 F.3d 899-900 (9th Cir. 1994).

I confess that the way Eugene quoted it, without the cites in the text of his quote, made it much easier to read the quote 🙂

[David Bremer]

Except, that as I read that, I didn't need to refer to a footnote before knowing that: (a) his support for citations being highly relevant and readability is from an out-of-state unreported decision; and (b) his second case is from 1994, so it can't be that strong or persuasive on courts discouraging parties from footnoting citations.

There are some good things that be quickly learned by reading the citations in-line, even before reading the cases.

[Rutherford]

Didn't anyone here notice that the judicial comment in question appears in a FOOTNOTE?!

The case is Alpert v. Nationstar Mortg. LLC, 243 F. Supp. 3d 1176, 1179 (W.D. Wash. 2017), FN#1 (I do wish there were some way to leave this comment as a footnote).

(a) Prof. Volokh chose to not actually cite to the case in his news report. One wonders why.

(b) Fun fact: J. Richard A. Jones who made the comment is a much younger half brother of Quincy Jones, the famous Hollywood musician (or so sayeth Wikipedia).

(c) This somewhat rigid-appearing judge likes to sign his opinions: The Honorable Richard A. Jones, United States District Judge. Many other judges leave off that right honorable part. They kind of assume you probably know that federal judges bear that honorific.

Most fun of all:

(d) Reason's Mar. 8, 2018 HIT & RUN BLOG: Tracking Down the Elusive Left-Wing Authoritarian by Ronald Bailey describes a venerable psychological instrument from 1981 that purportedly measures something it calls?I'm quoting here?the "Right-Wing Authoritarianism (RWA) scale, a test widely used to measure this personality and ideological variable. Social scientists generally report that right-wing authoritarians are conformists who obey established authorities, adhere to conventional social norms"... etc. etc. "basically, that conservatives are mentally and socially rigid."

Who knew?

[apedad]

". . . conservatives are . . . mentally rigid."

Yeah, I guess that's one way to put it.

[jph12]

"Once all of the numbers were crunched, the researchers' results were consistent with the authoritarianism symmetry hypothesis. In fact, after sorting participants into conservatives and liberals based on whether they scored in the top or bottom half of a 10-point conservatism scale, the researchers found that "the highest score for authoritarianism was for liberals on LWA."

"Our data suggest that average Americans on the political left are just as likely to be dogmatic authoritarians as those on the political right. And those left-wing authoritarians can be just as prejudiced, dogmatic, and extremist as right-wing authoritarians," Conway tells PsyPost."

And this is why you need to read the case, and not just the lawyer's summary in the brief.

[Eidde]

I'm going to engage in a bit of amateur psychology, FWIW. Judge Jones is black.(1) Black people who remember the demeaning forms of address whites used to use with them (like omitting the term "Mr.," using first names with strangers, saying "Uncle" or "Aunt"), will sometimes respond by insisting on more respectful forms of address. So if they're an honorable, they will make sure you call them such.

And this could extend to requiring more formality in official relations, including proper footnote usage.

(1) "Jones, Richard A. (1950- )," http://www.blackpast.org/aaw/jones-richard-1950

[Edgehopper]

This advice does conflict directly with Bryan Garner's brief-writing recommendations; his tip 24 from "The Winning Brief" is "Put citations--not substance--in footnotes. Identify your authority in the text." Of course, he also begins the section with, "Of all the tips in this book, this one is the most controversial," and notes that Judge Posner and Justice Scalia strongly disagreed with him.

Garner's right that in-line citations are more an artifact of pre-computer legal writing than a truly better technique. I've seen plenty of briefs where in-line citations obscure really bad legal argument, and used some of those as examples in promoting citations in footnotes. But of course, the true rule is "do what your judge wants."

The other point to remember, to address the appellate judge's "I view them as often the most important part of the argument" line, is that the authority--the truly important part of the argument--still goes in the text; it's just the reporter cite that goes in the footnote. A district court judge needs to know that the Federal Circuit previously held in Enfish, LLC v. Microsoft Corp. that an improvement to computer functionality is not a patent-ineligible abstract idea; he probably doesn't need to know, while reading the argument, that the full text of the Enfish opinion can be found in volume 822 of the Federal Reporter, 3rd edition, on page 1327.

[Pettifogger]

Interesting. I am now retired, and for most of the years I practiced, I was a transactional lawyer. But for the few briefs I wrote in later years, I followed Bryan Garner's recommendation to put case names in the text (Smith v. Jones) and the remainder of the citations in footnotes.

Because Garner pushed that so vigorously, I assumed most courts would prefer it. Oops.