I recently had the opportunity to read Joseph Kimble’s Michigan Bar Journal article “Where Should the Citations Go?” that was brought to my attention by the (new) legal writer’s April 4th blog post. Kimble’s article focused on basic legal citations in court documents.
He identified two issues: First, should lawyers place these citations in the text or in footnotes? Second, should individual judges even be making rules about this?
Kimble explained that in Mosholder v. Barnhardt, a federal judge in the Eastern District of Michigan made such an order. This is the judge’s footnote in its entirety with the portion Kimble called a “stunner” in blue:
Neither party adhered adequately to this court’s motion practice guidelines, as set forth in the court’s June 18, 2009 “Scheduling Order,” and submitted briefs in formats which are contrary to the preferred format in this district and by this judge. The parties simply ignored this court’s instructions with respect to Rule 56 motions. Neither party provided numbered, corresponding statements of purportedly uncontroverted facts. Defendant’s first stated fact is “Plaintiff works a [sic] Corrections Officer E-9 in the Thumb Correctional Facility (TCF). (Exhibit A, Plaintiff’s Deposition, p 20 ln 5-19).”
Plaintiff’s first stated fact is “Plaintiff was hired by the MDOC in February 1995 and was initially posted at the Western Wayne Correctional Facility. See Exhibit 1, pg. 10.” The result of the parties’ failure to coordinate is a jumble of alleged facts coming from two directions many of which are either uncontested or irrelevant to the decision. Plaintiff’s brief contains margins much smaller than the size mandated by Local Rule 5.1, making the brief more difficult to read. Defendants, for their part, followed what appears to be an Attorney General’s office trend, citing every authority in a footnote. This practice is distracting to a reader and unacceptable to this judge. The Attorney General is notified that future filings in this judge’s cases that confine case and statutory citations to footnotes will be stricken subject to refiling. Assistant Attorneys General Grill and Cabadas are directed to notify their supervisor(s) in writing of this point of procedure. The court, on the other hand, commends both the Attorney General and Plaintiffs for clarity in docketing of supporting exhibits (e.g., “Exhibit A — Deposition of Ruth Mosholder 10 pages; Exhibit B — Deposition of Laquita Featherstone 6 pages,” etc.), a format that is also called for in CM/ECF guidelines, but too seldom followed.
Kimble advocates placing all citations in footnotes. He acknowledged that judges can rule about margins, page limits and type size, but suggested their lack of expertise makes them unqualified to address issues of formatting, style or “readability.” While conceding that lawyers should write for their audience, Kimble asks if the audience should not be more open-minded.
What you consider readable may not be readable to me. In court documents, I want to see immediate references to the legal authority on which opposing counsels’ propositions are based. I can also strategically use textual citations when I write. In my opinion, these aspects outweigh any style concerns.
I am not in favor of parallel citations (generally), string citations and other unnecessary information being included in the text of court documents. I believe that striving toward short, useful and effective textual citations is a better strategy than relegating all citations to footnotes.
Readability is in the eye of the beholder. If readability is dependent on citation placement, then the target audience (court) is qualified to determine the proper placement of citations and make orders accordingly. When you write: Know the applicable rules, your purpose and audience.