What’s your opinion on the in-text versus footnote citation debate? Is one way correct or is it a matter of preference?
Dear Footnote Fan,
I’m going to give you a lawyerly response to this one: there is no "right" answer. I use in-text citation because that’s what I learned in law school. I’ve used footnote citations in the past, but I don’t like them as much. As a practitioner, I felt that footnote citations were less persuasive—I wanted the court to know exactly what authority I was citing (because my authority was good—I wasn’t stretching).
And as a law clerk, I want to immediately know the authority cited. Is it recent, binding precedent or merely old, purportedly persuasive precedent from another jurisdiction? It’s easier to hide non-binding precedent in a footnote than in the text, so I check footnote citations extra-carefully to see what might be lurking in them. But I don’t think poorly of lawyers who use footnote citations, and the citation scheme, by itself, doesn’t have any impact on the persuasive value of the brief (at least not any impact that I’m aware of).
Of course, there is much debate on this topic. Bryan Garner strongly believes in footnotes. According to Garner, footnotes make writing clearer by allowing the writer to shorten paragraphs and vary sentence structure. And, if you believe Garner, in-text citations make reading more difficult. One of the latest Garner articles on this topic appeared in the February 2014 ABA Journal.
Others, such as Judge Posner, disagree. According to the in-text proponents, readers have to work too hard to find information in footnotes, and footnotes don’t allow for continuous reading. Posner and others also argue that lawyers are used to reading documents with in-text citations and aren’t distracted by them, as Garner claims. At least two current Supreme Court justices, Roberts and Thomas, have said they prefer in-text over footnote citations. You can find a 2001 article by Judge Posner on the issue on the American Judges Association website.
Ross Guberman, of Legal Writing Pro, suggests resolving the conflict by using in-text citation only at the end of sentences, not in the middle. I agree 100% that middle-of-the-sentence citations make reading very difficult. Consider the difference in readability between these two sentences:
In Dillard Department Stores v. Silva, 148 S.W.3d 370, 372 (Tex. 2004), the Texas Supreme Court outlined the shopkeeper’s privilege, which allows a shopkeeper to detain a suspected shoplifter in a reasonable manner for a reasonable time while the shopkeeper attempts to determine the ownership of property.
Under the shopkeeper’s privilege, a shopkeeper may detain a suspected shoplifter in a reasonable manner for a reasonable time while the shopkeeper attempts to determine the ownership of property. Dillard Dep’t Stores v. Silva, 148 S.W.3d 370, 372 (Tex. 2004).*
All this said, the outcome of your case isn’t going to hinge on the citation scheme you use. Just be consistent throughout your document. I can only think of two times where there is a “right” way: (1) when the local rules require a certain citation scheme; and (2) when you know the judge or justices hearing your case prefer one method over the other. Otherwise, the citation scheme you choose is a matter of preference.
*You might have noticed that “department” is spelled out in the first example and abbreviated in the second example. This is a BB rule. Per BB, you cannot abbreviate case names (except for the most common abbreviations, like Co.) if the case name is in the text of the sentence.