Wednesday, August 31, 2016

Footnotes, footnotes, where to put your footnotes?


Have you ever put citations in the footnotes of a brief, rather than in the main body? I have. I thought it made the document easier to read, and easier to look at. I even thought it made it a bit easier for the judge to find the footnotes.  Lest you think me crazy, uber legal writer Bryan Garner is also a proponent of citations in footnotes.

Mr. Garner and I would appear to be in the minority. Above the Law has a great footnote story. Allow me to liberally quote from ATL:

Via the Twitter feed of Ross Guberman, a leading expert on legal writing, comes this benchslap from Judge James K. Bredar (D. Md.):
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 Second, the former rule requiring attachment to motion papers of unpublished case opinions has been omitted from recent iterations of the Local Rules. A citation to either Westlaw or LEXIS suffices for unpublished opinions.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?
The survey in the ATL story would also indicate that most of us expect our footnotes in the body of the text. Only 31% of the survey respondents support cites in the footnotes.

Please click here for an as usual awesome story from Above the Law!
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