Where, oh where, should my citations go? Just read another article by Bryan Garner arguing that citations should be relegated to footnotes rather than cluttering up a legal brief. He’s been pushing for the switch to footnotes for quite a while now. And as usual, his arguments make perfect sense. Take this comparison, for example:
In your legal work, I’m sure you often have to make sense of something like this:
“Our opinions in Hughes Aircraft Co. v. United States, 86 F.3d 1566, 39 USPQ2d 1065 (Fed. Cir. 1996) (Hughes XIII) and Hughes Aircraft Co. v. United States, 140 F.3d 1470, 46 USPQ2d 1285 (Fed. Cir. 1998) (Hughes XV) do not lead to a different result. Hughes XIII explicitly held that Hughes Aircraft Co. v. United States, 717 F.2d 1351, 219 USPQ 473 (Fed. Cir. 1983) (Hughes VII) was entirely consistent with our intervening en banc decision in Pennwalt Corp. v. Durand-Wayland, 833 F.2d 931, 4 USPQ2d 1737 (Fed. Cir. 1987). Hughes XV held that Warner-Jenkinson provides no basis to alter the decision in Hughes VII because the court properly applied the all-elements rule. 140 F.3d at 1475, 46 USPQ2d at 1289. In neither case was there controlling authority that in the interim had made a contrary decision of law applicable to the relevant issue.”
You have to make sense of this because your client is depending on it. That task becomes significantly easier when the passage is shorn of the citations:
“Our opinions in Hughes XIII¹ and Hughes XV² do not lead to a different result. Hughes XIII explicitly held that Hughes VII³ was entirely consistent with our intervening en banc decision in Pennwalt v. Durand-Wayland.⁴ And Hughes XV held that Warner-Jenkinson provides no basis to alter the decision in Hughes VII because the court properly applied the all-elements rule.⁵ In neither case was there controlling authority that in the interim had made a contrary decision.”
I must admit, I am torn on this issue. I always hesitate to disagree with someone like Bryan Garner, but I also think sometimes citations become the scapegoat for other writing missteps. So, in the example above, what if we introduced the cases and assigned simpler reference labels first, rather than trying to do all that while simultaneously embedding the long citations in prepositional phrases and compound sentence clauses and whatnot? What if we rid ourselves of redundant parallel citations? How about trading marathon sentences for shorter, crisper points? Can we ditch a few empty adverbs and abstract nouns? Maybe trade them in for more action verbs? Convert the roman numerals to Arabic numbers, perhaps? Get rid of some double negatives and ambiguous pronouns? That way Mr. Garner’s example becomes something like this (the opening sentence is added for a bit of context):
The law of this case is no longer binding, because controlling authority has shifted in the interim. That distinguishes the present case from the two leading decisions where the law of the case doctrine prevailed. The first is Hughes Aircraft Co. v. United States, 86 F.3d 1566 (Fed. Cir. 1996) (“Hughes 13″). The second is Hughes Aircraft Co. v. United States, 140 F.3d 1470, (Fed. Cir. 1998) (“Hughes 15″). Hughes 13 preserved the law of the case because its earlier rulings were “entirely consistent with Pennwalt” and other intervening decisions. Hughes 13 at 1576.¹ Hughes 15 likewise had “no reason to depart from” the law of the case because it, too, had “satisfie[d] the … rule as stated in [the intervening case of] Warner-Jenkinson.” Hughes 15 at 1475.² Since neither Hughes 13 nor Hughes 15 had occasion to reconcile the law of the case with any subsequent contrary authority, those precedents have no bearing on the issue at bar.
FN1. Revisiting Hughes Aircraft Co. v. United States, 717 F.2d 1351 (Fed. Cir. 1983) (Hughes 7) in light of Pennwalt Corp. v. Durand-Wayland, 833 F.2d 931 (Fed. Cir. 1987).
FN2. Revisiting Hughes 7 in light of Warner–Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17 (1997).
Well, what do you think? Is Door #3 available? It does use embedded citations, because that keeps the reader’s head from bobbing to and from the footer every four seconds to verify statements made in the text (which can be just as distracting as long citations). It also uses some footnotes — but only sparingly, and only for ancillary information. It jettisons the extra-lawyery mumbo-jumbo and cuts to the chase. My goal was to trim the fat and keep the meat, so to speak. Is this version easier to read, or harder? Does it make sense, or have I distorted what the court was trying to say? If anyone’s interested in the original case where Mr. Garner found this excerpt, you can read the full opinion here.