6.5.3 WHERE TO CITE
As noted previously, citations in a brief will sometimes be citations to sources rather than citations to authorities. For this reason, writers should place their citations in text rather than in footnotes in almost all situations.
Use footnotes for citations only on rare occasions (e.g., for occasions when a string citation is necessary18). Placing citations in text allows readers to identify immediately which citations are and are not authoritative citations. The reader’s immediate need to understand a source’s validity makes it more important for brief writers to place citations in text than it is for any other kind of legal writer. Only the brief writer has the job of marshaling mandatory and nonmandatory authorities, synthesizing rules from those authorities, applying those rules to facts, and presenting them to a decision maker. The brief writer, much more than the legal commentator or the judge, asks the reader to accept or reject legal arguments based on the authoritativeness of his or her citations. The journal writer, in contrast, may assemble citations from a variety of jurisdictions to posit a theory; the judge derives authority from his or her judicial appointment.19The reader of a brief, unlike the reader of a law review article or of an opinion, must reserve judgment about the validity of any legal proposition until the authoritativeness of the citation is known. Putting citations in footnotes needlessly frustrates the reader of a brief.A reader who encounters a brief with citations in footnotes has three choices for deciding what to do, and all of them are bad. First, the reader can presume that the writer is citing an authoritative source. This choice is bad because the reader may be wrong and may overvalue the validity of the writer’s argument. Second, the reader can presume that the writer is not citing an authoritative source.
This choice is bad for the same reason — the reader may be wrong — only this time, the reader will undervalue the validity of the writer’s argument. Third, the reader can check each footnote to see if the citation provides an authoritative source or not. Of course, not every footnoted statement will be a legal assertion; the reader will therefore be checking footnotes that do nothing more than provide needed page numbers for quoted or paraphrased statements of fact. These citations could be passed over easily if they were in text, but in a footnote they require the same two “finding actions” that every footnote requires: First, the reader must check the number of the footnote and find the corresponding number at the bottom of the page. Second, the reader must return to the text and find the place where he or she stopped reading.Although at least one judge has said that he prefers that citations appear in footnotes,20 others say quite pointedly that footnotes interfere with effective reading. Speaking of footnotes in general, former Justice Arthur J. Goldberg praises elimination of all footnotes from judicial opinions in the name of increased readability.21 Judge Abner Mikva notes that “[i]f footnotes were a rational form of communication, Darwinian selection would have resulted in the eyes being set vertically rather than on an inefficient horizontal plane.”22More recently, both Judge Posner and Justice Scalia have protested the placement of citations in footnotes.23 A reader who wants to read a brief responsibly — i.e., understanding the validity of legal assertions — will find footnoted citations just as distracting as any other footnotes.
The practical brief writer will remember the old saw that the only person who likes to be interrupted in the middle of a sentence is a prisoner. Presume that all citations should be incorporated in the text, and make exceptions only rarely.