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Occasional observations concerning the citation of legal authorities by lawyers and judges. In a prior post I explored how the transformation of case law to linked electronic data undercut Brian Garner’s longstanding argument that judges should place their citations in footnotes.  As that post promised, I’ll now turn to Garner’s position as it applies to writing that lawyers prepare for judicial readers. Inexorably that has led some judges to press for links between the citations in the documents they read from the screen and the authorities or portions of the record to which they refer.  Local rules commonly permit their inclusion.


An ad hoc group of federal judges and judicial staff has taken the further step of affirmatively encouraging such links. If the electronic document has been prepared with care, its footnote calls will be linked to the notes, and if citations have been linked to the cited authorities either by the author or, as in the Fifth Circuit, by court software, the path to those authorities will not depend on the citations’ sharing the reader’s field of vision with the propositions they support.  On the other hand, the reader’s decision over whether and when to inspect a cited source now involves greater discontinuity than simple eye movement. In sum, as more and more judges read lawyer submissions from a screen, with the near instant capability to follow citations to the case, statute, or record excerpt to which they refer, those who previously placed citations in footnotes have strong reason to reconsider. Can one see the citation and the text it supports at the same time or does that require a scroll, click, or touch? If and when one chooses to follow the linked citation to the referenced source (and back) to what degree is that move facilitated or rendered more awkward by the citation’s placement?


Citation placement is by no means the only or even the most important issue raised by the conversion of citations in briefs into executable pathways leading directly to the cited text or document.  That larger topic will be the subject of a later post.



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