Memo to Bench, Bar, and Legal Academia: Let’s put citations in footnotes

 By Chinua Asuzu

Whether in academic legal writing, brief-writing, or judicial writing, let’s stop cluttering the body of our work “with jumbles of letters and numbers,” (Mark P. Painter, ‘30 Suggestions to Improve Readability, or How to Write for Judges, Not Like Judges,’ 14, judgepainter.org/publications).

Algebra like [2011] 16 NWLR (Part 1272), 62, 75 shouldn’t appear in the body of our work, but in footnotes. We went to law school, not to math school.

Name the authority in the body, but provide the citation in footnotes: “As to citations, they BELONG in footnotes. Putting goofy letters and numbers in the middle of paragraphs destroys readability.” M & M Metals International Inc v Continental Casualty Company, 870 N.E.2d 167 (Ohio Court of Appeal 2006), 167 (Painter J).

Putting citations in the body of your brief “clutters the text, slows the reader, and hampers the writer’s ability to construct a coherent paragraph. Few writing reforms would benefit the legal world more than adopting the following rules: (1) put all citations in footnotes; and (2) ban footnotes for all purposes other than providing citations.” Bryan A. Garner, Garner’s Dictionary of Legal Usage, 3rd ed., OUP, 2011, 158.

So put all citations in footnotes, and put only citations in footnotes. “[T]he system used for citing references should be designed to give minimum interruption to readers’ progress through the text. It should allow them to concentrate on primary information.” Christopher Turk & John Kirkman, Effective Writing: Improving Scientific, Technical, and Business Communication, 2d ed. 1989,  69–70.

Exporting citations to footnotes enhances readability. Before they ever think of looking up any authority you cite, judicial readers want to read through your brief, preferably at one sitting. Putting your citations in the text suggests you expect the judge to pause at each authority, go to the library, and study the authority.

Reserve footnotes for citational hieroglyphics.

But Avoid ‘Talking Footnotes.’

Citation footnotes are all right, but talking or textual footnotes are not.

Use footnotes for citations, and seldom for anything else. Do not use ‘talking footnotes’—footnotes containing amplification, further argument, or further discussion. Avoid those substantive or textual footnotes. “If your point is important, it belongs in the text; if it is not important, it does not belong in the brief.” Harvey C. Couch, ‘Writing the Appellate Brief,’ 17 Practical Lawyer, 1971, 27, 30.

Talking footnotes detract and distract from readability. They interrupt the reader’s enjoyment of your prose, a pleasure not incomparable to other, more familiar pleasures: “Encountering a footnote is like going downstairs to answer the door while making love,” laments Judge Mark Painter (op. cit.).

Chinua Asuzu, BRIEF-WRITING MASTERCLASS, Partridge, 2017, 356–358.