Benchslap Of The Day: Don't You Dare Put Citations In The Footnotes
Where do YOU come down on this hot topic in legal writing?
Bringing down the gavel – on citations in footnotes.
Nobody puts baby in the corner. And nobody puts citations in the footnotes — at least not in this federal judge’s court.
Via the Twitter feed of Ross Guberman, a leading expert on legal writing, comes this benchslap from Judge James K. Bredar (D. Md.):
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Before addressing the merits of Defendant’s motion to dismiss, the Court cautions both parties to observe certain rules as to the format of motion papers. First, the parties’ motion papers employed a method of citation of authorities that is not only incompatible with the rules but also a hindrance to the Court’s consideration of the parties’ respective arguments. For documents filed in this Court, the Local Rules neither permit nor require the citation of authorities in footnotes, as opposed to incorporating them into the text of documents. See The Bluebook: A Uniform System of Citation R. B1.1, at 3 (Columbia Law Review Ass’n et al. eds., 20th ed. 2015) (“In non-academic legal documents, such as briefs and opinions, citations generally appear within the text of the document immediately following the propositions they support. Footnotes should only be used in non-academic legal documents when permitted or required by local court rules.”). Second, the former rule requiring attachment to motion papers of unpublished case opinions has been omitted from recent iterations of the Local Rules. A citation to either Westlaw or LEXIS suffices for unpublished opinions. Counsel should familiarize themselves with these rules. Future noncompliant filings will be stricken without prior notice.
Ouch! Who says the Bluebook is dead?
In defense of the chastised lawyers, there is actually a movement in some quarters in favor of putting citations in the foonotes. As Ross Guberman explains, there are two camps: the pro-footnote camp, led by fellow legal writing guru Bryan Garner, and the pro-text camp, led by Judge Richard Posner. (As one might expect from a proponent of relegating citations to the footnotes, Garner opposes putting substantive material in the footnotes.)
Here is where Guberman comes down in the debate over where to place citations:
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In theory, Bryan Garner is right. In practice, though, the legal world does not appear ready for citation footnotes. My advice: don’t put citations in footnotes unless you’re sure your judge wants you to. Only a few have said they do.
And Judge Bredar is not among the few.
Readers, what’s your view on this divisive issue?
Where do citations belong in legal writing (court filings, not law review articles)?
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North Valley GI Medical Group v. Prudential Investments LLC: Memorandum and Order
[U.S. District Court for the District of Maryland]
Resolved: Citations in Footnotes? [Legal Writing Pro]
Earlier: Grammer Pole of the Weak: Substantive Footnotes
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
