I’m a fan of Bryan Garner’s. I really am. And as a former English professor, I endorse much of what Garner the Guru has to say about legal writing. Most of the time, you should listen to him. But Garner has published an article exhorting lawyers and judges everywhere to “cut the clutter” in their legal writing by moving their case citations out of the body and into the footnotes. And as a practicing attorney I have to say: I think this is bad advice.
Why? E-briefs. That’s the most practical answer. Rich Phillips, a fellow appellate attorney, has already offered a pretty solid rebuttal to Garner’s article, and Phillips mentions the e-reading factor as his third reason to reject Garner’s advice. I agree with Phillips, so I won’t say anything more about that. And Phillips also hits on another practical reason for appellate lawyers to reject Garner’s advice: appellate judges tend to prefer citations in the body, rather than in the notes—and appellate lawyers should write their briefs in the way judges prefer them. (A recent survey of Texas appellate justices showed 93% of them prefer case citations, specifically, in the text of the brief.)
But Phillips touches only lightly on what, for me, is the biggest reason to reject Garner on this topic. It has to do with Greek philosophy and the art of persuasion. In other words, I disagree with Garner for practical reasons, but — more deeply — I disagree with him for rhetorical reasons.
Aristotle said there are essentially three rhetorical modes of persuasion: logos,pathos, and ethos. Logos refers to logic or reason; using syllogisms, for example, is an effort to persuade via logos.
Pathos refers to feeling or emotion; portraying your client as “the little guy” doing battle with Goliath, Inc., is an example of persuading via pathos. (Trial lawyers are big fans of pathos because it’s often the most effective in front of a jury.)
And ethos refers to credibility or authority; the very name of the lawyer filing a brief, for example, can sometimes convey ethos—i.e., this is someone of stature, who the court will listen to. (How often do we assume, for example, that advice about legal writing must be good advice because it came from Bryan Garner?)
Most often, as lawyers, our rhetorical use of ethos comes not from name-dropping, but in the form of legal citations. “You should conclude X because courts in past cases have concluded X.” This is not an appeal to logic; it is not an appeal to emotion; it is an appeal to authority. Where parents say “Because I said so,” lawyers say “Because this case says so.” Often, in law, the use of authority is more persuasive than anything else.
This is why, as much as I like the clean look of a page devoid of citations, I’ve never fully bought in to the put-your-citations-in-the-notes movement. Because, as Phillips says (and as Aristotle would say), your case citations are an important part of your argument. And it’s not enough that a court said something. Which court said it? And when? As Phillips points out, it’s much easier to send these rhetorical signals through citations than to spell out this information every time you rely on authority. While Garner’s in-the-notes citations might look better to a layperson skimming the page, I think the use of in-the-body citations is much more effective in persuading judges.
Of course, I do agree with Garner that in-the-body citations can be cumbersome—and I think it’s best to take a minimalist’s approach wherever possible (i.e., don’t cite three cases when one will do).
And I also agree wholeheartedly with Garner’s suggestion that laypersons should be able to read judicial opinions. In fact, this is another quibble I have with Garner’s article: he makes no attempt to distinguish between judges’ writing and lawyers’ writing. If Garner’s article was all about how judges should move their citations to the notes, to ease the burden on the everyday reader, I’d say “Great idea!” and be done. But that’s because a judicial opinion can be viewed as being written for the general public. The same cannot be said of the lawyer’s brief. Garner’s failure to recognize this distinction is yet another reason for lawyers to set aside his advice on this topic.
[This is a lightly edited re-posting of this piece.]