Everyone agrees legal brief writers should strive for clear, orderly prose and a coherent chain of argument.
At the same time, we must show there is legal precedent for most of our assertions, and identify precisely these sources of support. But is there a way to do that without constantly interrupting and cluttering the text with numbers referring to volumes of official reporters and their pages?
Yes, there is, and some judges, practitioners, and legal writing experts say it is a far better approach to handling citations.
They advise placing this information in footnotes—and using footnotes for this purpose alone.
The idea has been around since at least the early 1960s, but the most famous proponent of this method is Bryan Garner, the author of dozens of books on legal writing and the editor of Black’s Law Dictionary.
Garner’s inclusion of the “footnote all your citations” tip in the first edition of The Winning Brief in 1996, caused some outrage. Many judges and practitioners said it showed a lack of respect for the importance of precedential authority. The New York Times even covered the controversy in 2001. Since then, “the power of the tip,” as Garner puts it, has made some headway, or at least it has gained a few adherents here and there.
Chris Gauger, the attorney who supervises the Research Unit of the San Francisco Public Defender, for one, has implemented this approach for all of the office’s filings with the San Francisco Superior Court.
Gauger mulled the arguments on either side before deciding to adopt the method roughly a decade ago.[The Garner method], he notes, allows writers to use language more efficiently—by collapsing sentences, for example, or setting forth the instances where a particular law applies in bullet points.
“That way the court doesn’t have to fight through two or three paragraphs before figuring out what [the writer] is talking about,” Gauger says. “It makes more sense, it makes [the text] flow better, and it’s easier to read.”
Gauger says he’s heard rumors that some judges on the San Francisco bench grumble about it, but he hasn’t had any “call [him] up and say, `Stop that!’ ”
Here are some more reasons to “put all citations in footnotes and ban footnotes for all other purposes”
Garner and others say the customary, in-body approach to citations has helped make filing a badly written brief a common occurrence. They claim placing a citation at the end of nearly every sentence often weakens the connection between consecutive sentences. When writers try to remedy the problem, they often repeat information—resulting in overstuffed paragraphs. Or they just ignore the issue altogether, thus producing choppy prose.
The Garner method works only if, when introducing an important rule of law, the writer works the identity of the court that issued the opinion and the year it did so into the main text. In most instances, she should weave the name of the case in as well. Once that is done, the writer may relegate the volume and page numbers and the abbreviation for the reporter to a footnote. This method, the argument goes, causes the writer to describe the case’s findings and holdings more thoroughly and most importantly, explain why it matters to the one at bar in her own words. It limits reliance on parentheticals to do the work, and, Garner claims, results in greater treatment of cases.
Garner says in-body citations are nothing more than an unfortunate hangover from days of yore—the time before the advent of word processors that automatically make a footnote appear on the same page as the textual reference to it.
He argues his method:
- forces writers to maintain a tighter train of thought and helps them strip down their arguments and more efficiently convey their ideas
- “clears away the underbrush”
- exposes disjointed thoughts and poorly constructed paragraphs
- makes it easier to vary the length and structure of sentences
- results in shorter paragraphs
- makes legal writing more accessible to lay readers
- keeps the reader’s focus on ideas, not numbers (Garner advises putting all references to the record in footnotes, as well.)
Even so, the Garner method remains controversial. Not one U.S. Supreme Court justice has adopted it. Indeed, in Making Your Case: the Art of Persuading Judges, which Garner co-wrote with Justice Antonin Scalia, you’ll find Scalia’s scathing condemnation following Garner’s view in favor: “You should no more try to convert the court to citation-free text at your client’s expense than you should try to covert it to colorful ties or casual-Friday attire at oral argument.”
So opines the recently deceased justice.
Even Garner says that if you know the judge dislikes “citational footnotes,” then by all means, heed the preference.
There are other potential problems with the method, as well.
Too often, writers trying to use the Garner technique neglect to weave the name of the case, the identity of the court that made the decision, and the year it did so into the main text, thus forcing clerks and staff attorneys to bob their heads up and down trying to determine how much weight should be given to the footnoted authority. Plus, consigning volume and page numbers and abbreviations for reporters to footnotes makes it impossible to simply copy the citation and paste it into a new document.
“I’m not a fan,” says Polly Estes, an appellate attorney who worked for 12 years at the United States Court of Appeals for the Ninth Circuit. “I cannot speak for all judges, of course, but it was my experience that all but one [on the Ninth Circuit] preferred that cites to cases be put in the body of the text.”
Meanwhile, teachers of legal research and writing at law schools are sticking with the conventional approach.
“I can see how [Garner’s method] improves the visual appeal of the body of text—removing the coding makes legal writing look more like narrative writing—and that certainly has appeal,” says Stephen Tollafield, Professor & Associate Director of the Legal Writing & Moot Court Department at U.C. Hasting College of the Law. “But I teach what the majority is used to. I’m trying to train new attorneys to stick pretty close to The Blue Book [style of putting citations in the main body], so they feel they can meet the expectations of lawyers in the broadest sense.”
Justice Jim Humes, who presides over the First Division of California’s First Appellate District and formerly taught legal writing, says he hopes the tide eventually turns in Garner’s favor.
“Since California judges are used to the California style of [placing] citations within the text of the document, I think lawyers should conform to that approach,” Humes says. “But I also think we should be open to new approaches. I think that [removing volume and page numbers from the main text] should be our goal.
“[Garner’s technique] helps de-clutter the prose, which always helps sharpen the points you’re making and the thinking process. That’s what good writing is. Good writing is good thinking.”
About the author
Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She became a licensed California attorney in 2010 and specializes in legal research and writing. She can be reached at email@example.com. Follow her on Twitter at @SavannahBinSF.