Report me and my cause aright
Hamlet, Act V, Scene 2

  The Catchline



BULLETIN OF THE ASSOCIATION OF REPORTERS OF JUDICIAL DECISIONS


Volume XX, No. 2 February 2002

PRESIDENT'S MESSAGE

      The Association's fall executive board meeting was held November 16, 2001, at the United States Supreme Court in Washington, D. C. Frank Wagner graciously served as our host and several members of his staff joined us in attendance. Board members Andy Ashe, Sara Rocha, Bilee Cauley, and Tim Fuller virtually attended the meeting via telephone. Many thanks to Toni Singleton of Frank's office, whose efforts ensured a flawless conference call, and to all those who found time in their busy schedules to attend the meeting.

      One of the main topics discussed at the meeting was the new ARJD website and its role as a means to quickly and effectively communicate with our membership. We also discussed the future of our more traditional communications tools The Catchline and the membership directory. After much debate, the board decided that the website would supplement, rather than supplant, our written publications. Editorial and publication responsibilities, however, will shift to the executive board or, perhaps, a dedicated communications person who would assume the duties so ably performed by Judy Ronningen for many years.

      Activities and plans for the August 2002 meeting at the Hilton Montréal Bonaventure were also discussed. One event planned is a 20th birthday party for the ARJD in honor of the association's past presidents, charter members, and honorary members. Besides enjoying their company at a birthday bash, we hope to include these special guests in a roundtable discussion about our organization's history and our goals for the years ahead. Thanks to Henry Lind, we have located all charter members and past presidents and will be contacting them directly this spring. I have also received suggestions for two additional topics for roundtable discussions. Tom Merritt forwarded a copy of an article that appeared in the New Hampshire Bar Journal about an emerging trend in the Federal Circuits to permit withdrawal or nullification of a judicial opinion as a condition of post-trial settlement, and John Fee brought up the topic of WestGroup's decision to publish "unpublished" decisions in its recently issued Federal Appendix. Plans are also underway for a tour of the Supreme Court of Canada in Ottawa or perhaps a provincial court in Québec. And Professor Jim Raymond, who was unable to attend the Alabama meeting, intends to join us this summer in Montréal to speak about legal writing. Finally, an optional "add-on" trip to Québec City is being explored for those who wish to stay a little longer and see more of Canada.

      Before closing, I want to extend many thanks to the following individuals who have agreed to chair committees for the current year:

Education: Barbara Kincaid, Supreme Court of Canada.
Electronic Publishing: Wm. Scott Henwood, Georgia.
Honors: Sheila D'Ambrosio, California.
Membership: Kathryn M. Bann, Pennsylvania.
Nominating: Shauna Thomas, Montana.
Site Selection: Lloyd M. Hysan, United States Supreme Court.
Website: Charles A. Ashe, New York.
The Catchline: Judith O. Ronningen, United States Supreme Court.

      The spring executive board meeting will be held at the Supreme Judicial Court in Boston, Massachusetts, on April 11 and 12. 2002, and hosted by Sara Rocha. Please note the change from our traditional location in Washington, D. C. All members are more than welcome to attend.

      I hope to see you all in Montréal this summer. Save the dates—August 1 through 5. The birthday party is planned for Saturday, August 3, and the optional 3-day trip to Québec City will follow the meeting. Details and registration information will be in the spring issue.

Janette Bloom


2002 MEETING DATES

      Spring Executive Board Meeting: The spring Executive Board Meeting will be held on April 11 and 12, 2002, in Boston, Massachusetts, at the Supreme Judicial Court of Massachusetts. We will convene at 1:30 p.m. on Thursday, April 11, and adjourn about noon on Friday, April 12. All members are welcome and encouraged to attend the meeting. Please note the change in location of the meeting from its customary site in Washington, D.C.

      2002 Annual Meeting: The 2002 Annual Meeting will be held in Montréal, Québec, Canada, starting Thursday, August 1, and continuing to Monday, August 5. The site of the meeting is the Hilton Montréal Bonaventure, a penthouse hotel atop the Place Bonaventure Exhibit Hall.


NEWS FROM JOHN CUTTS

      Charter ARJD member John Cutts retired last fall from the United States Court of Appeals for the Armed Forces. Janette Bloom heard from John in January and shares some of John's sentiments about retired life:

"I'm really enjoying retirement. I don't have to read a single opinion and I couldn't be happier. I am doing exactly what I want when I want and that's almost (but not quite) hard to get used to. I am very pleased with myself for this decision. I saw that Richard Ross' Court issued a 338-page opinion in a capital case. My biggest one was a total of 287 pages, also a capital case. I certainly sympathize with him. As for the ARJD, I do want to keep in touch with all my friends but I doubt if I will be attending many meetings. I do not plan to go to Montreal this year but I will be thinking of you all then."


GENERAL TOURIST INFORMATION
provided by Tourisme Montréal, Greater Montréal Convention and Tourism Bureau

PROFILE OF MONTRÉAL

      The City of Montréal is located on the Island of Montréal, which lies in the midst of the St. Lawrence River. Montréal is the second largest metropolitan center in Canada and the largest French-speaking city outside of France. Even though French is the official language of the Province of Québec, more than half the population of Montréal speaks English as a first or second language. Since Montréal has 80 different cultural communities, a number of other languages are spoken as well.

      Canada uses the metric system of weights and measures. Weather reports are given in Celsius and road speeds are posted in kilometers per hour, while gasoline is sold by the liter (milk and wine by milliliters and liters), grocery items by grams and kilograms, and fabric lengths by meters.

      Montréal is located in the Eastern Standard Time Zone. The city adopts Eastern Daylight Savings Time on the first Sunday in April and reverts to Standard Time on the last Sunday in October.

GETTING TO MONTRÉAL

      Montréal has two international airports. Located 20 minutes from downtown Montréal, Montréal International Airport-Dorval is a modern and efficient hub, servicing regularly scheduled domestic, transborder and international flights. Dorval also offers travelers flying to the United States the advantage of customs preclearance. Montréal International Airport-Mirabel, located 40 minutes from downtown Montréal, is a dedicated vacation airport, hosting charter flights from the United States, the Caribbean and Europe.

      All of the major car rental agencies are represented in Montréal. Visitors in Québec may drive a car for a maximum of six consecutive months without having a Québec driver's permit. Nevertheless, they must possess a valid driver's license. Nonresidents driving a vehicle licensed in Québec are covered for liability to the same extent that Québec drivers are if they have an accident in Québec.

      Safe and efficient, Montréal's public transit system (subway, buses and commuter trains) extends across the entire city as well as servicing the Greater Metropolitan Area.

CANADIAN CUSTOMS REGULATIONS

      United States citizens or permanent residents of the United States can enter Canada without a passport or visa. However, it is advisable to carry proof of citizenship such as a passport, birth or naturalization certificate. If these documents do not contain a photograph, a driver's license or other photo I.D. can be combined with them to establish identity. Permanent residents of the United States who are not citizens should carry a Resident Alien Card.


ARJD WEBSITE
by Andy Ashe

      For those members and friends of ARJD that have not heard about our website, I am pleased to announce that the site is up and running and may be accessed at http://arjd.washlaw.edu. We have posted the September 2001 edition of the Catchline on the site, along with a link to color pictures taken at the annual meeting at Orange Beach, Alabama. As soon as possible we will post the February 2002 Catchline. The basic design of the website parallels the ARJD brochures. The list of Committee Chairs has been updated.

      The next logical step in website development is to add directory information. We also want to add discussion group capability and links to other court websites. I have already arranged for the New York State Law Reporting Bureau's website to be linked to the ARJD website. I would like to personally thank Mike Moran and Kelli Flansburg of the Law Reporting Bureau for their design work on the site.

      If you have questions or concerns about the website, please e-mail me at cashe@courts.state.ny.us.


IN APPRECIATION OF GEORGE EARL SMITH
November 30, 2001

      The Supreme Court of Alabama takes this opportunity to recognize 22 years of dedicated service rendered by George Earl Smith as reporter of decisions for the Alabama appellate courts.

      On June 27, 1979, this Court appointed George Earl Smith as reporter of decisions for the Alabama appellate courts. In the last 80 years, the State has had only three reporters of decisions: Nobel H. Seay (1922 1969), John B. Scott (1969 1978), and George Earl Smith (1979 2001). The first decision of the Supreme Court reported by Mr. Smith appears in Volume 369 70, page 1, of Alabama Reporter and at Volume 369 of Southern Reporter. Since 1979 he has reported Alabama appellate cases for approximately 132 volumes of Alabama Reporter. Mr. Smith is embarking on a well-deserved retirement, which became effective October 1, 2001.

      Mr. Smith graduated from Jacksonville (Alabama) State University with a B.A. in political science in 1964 and from Cumberland School of Law in 1974. He was law clerk to Chief Justice Howell T. Heflin from 1974 to 1975 and to United States District Court Judge J. Foy Guin, Jr., from 1975 to 1976. From 1976 to 1978 he practiced law in Heflin, Alabama. He was appointed assistant clerk to the Alabama Supreme Court on June 6, 1978, and he served in that position until he was appointed reporter of decisions.

      Mr. Smith brought to the position of reporter of decisions a keen intellect and a strong work ethic; he has reported the decisions of this Court, the Alabama Court of Civil Appeals, and the Alabama Court of Criminal Appeals with great skill and care.

      Justices now serving on this Court, as well as those who preceded them, will always remember with gratitude not only Mr. Smith's knowledge and ability, but also his dedication to his work. Over the years, Mr. Smith has shared his wealth of experience and his vast legal knowledge gained during his tenure with the Court with innumerable staff attorneys and law clerks. He has served under four Chief Justices and 23 Associate Justices.

      Mr. Smith was a founding member of a national association for members of his profession the Association of Reporters of Judicial Decisions. He served as president of that association from 1984 to 1985 and has continued to play an active role in the association. In August 2001, he was awarded the Outstanding Leadership Award by that association at its 20th annual meeting, which was held in Orange Beach, Alabama. Mr. Smith, along with Justice Richard L. Jones, was a member of the committee that authored Judicial Opinion Writing Manual: A Product of the Appellate Judges Conference, a book published by the American Bar Association.

      Mr. Smith has done for this Court his "best service," as that term was described by Justice Oliver Wendell Holmes, Jr., in a speech to the Class of 1861 (Speeches, 1913): "To see as far as one may, and to feel the great forces that are behind every detail . . . ; to hammer out as compact and solid a piece of work as one can, to try to make it first rate, and to leave it unadvertised."

      The Justices of this Court, as well as the Judges of the Court of Civil Appeals and the Court of Criminal Appeals, are losing a valued colleague on Mr. Smith's retirement. All those in the appellate court system join us in wishing him many years of good health and happiness.

      IT IS THEREFORE ORDERED that this expression of the Court's appreciation of George Earl Smith be written upon the minutes of this Court as a permanent record, that a copy be sent to WestGroup for publication in a volume of Alabama Reporter dedicated to Mr. Smith, and that a copy be, and it is now, presented to George Earl Smith, Reporter of Decisions, Alabama Appellate Courts, 1979 2001.

      Moore, C. J., and Houston, See, Lyons, Brown, Johnstone, Harwood, Woodall, and Stuart, JJ., concur.


ASSOCIATION OF REPORTERS OF JUDICIAL DECISIONS
EXECUTIVE BOARD MEETING
NOVEMBER 16, 2001
(Telephone Conference)

      The Executive Board's fall meeting, usually held at the United States Supreme Court in Washington, D.C., was conducted by a conference call held on November 16, 2001.

TREASURER'S AND COMMITTEE REPORTS

      Treasurer's Report. Tim Fuller submitted an interim report to the board. As of October 18, 2001, there is a healthy balance in the treasury of $11,071.42.

      Membership Committee Report. Kathryn Bann, chair of the membership committee, submitted a written report showing that 32 members have paid their dues as of August 2, 2001. The Board is making a concerted effort to have assistant reporters and deputy reporters join the ARJD.

      Honors Committee Report. The Honors Committee reports one possible nominee, Morris Cohen, who spoke to our group in Philadelphia.

      Education Committee Report. Janette Bloom inquired as to whether we should consider canceling or changing the location of the 2002 annual meeting in light of current travel restrictions and concerns. After much discussion, it was determined that we would make no changes in the plans for the 2002 meeting. We can reevaluate if the need arises. The Board was presented with an outline of the proposed educational program and suggestions for social activities. Barbara Kincaid of the Supreme Court of Canada suggested a trip to Ottawa and several speakers. A possible trip to a provincial court will also be investigated.

      Site Selection Committee Report. Lloyd Hysan presented the report of the Site Selection Committee. Our 2003 annual meeting is scheduled to be in Portland, and in 2004 the site of the annual meeting is New York state. Andy Ashe reported that the rates at the hotel he originally had hoped to get for the meeting, the Lake George Hotel, were $200 per night, which puts that hotel out of range. However, Andy believed the group could find a hotel in the area that met our rate criteria. Andy Ashe will look into various hotels and present a proposal at the spring Executive Board meeting. Lloyd reported that he has received over a dozen proposals from hotels in the Portland area. Tim offered his assistance to Lloyd in doing site selection in Portland and agreed to do the on-site inspection of the facilities. The Board will make the decision on whether to have the annual meeting in downtown Portland or in an outlying resort area at the spring Executive Board meeting. At that meeting, Lloyd will present alternatives for the Board to consider, considering price, ease of access, availability, etc. We have no suggestions for the location of the 2005 annual meeting.

      Web Site Committee Report. Andy Ashe reported that the Web site is up and running. Our domain name is arjd.washlaw.edu. Wilma Grant and Lloyd Hysan are to look into creating a link from arjd.org. Andy Ashe proposed that we add to the web site the ARJD directory (after deleting any personal information such as spouse's names and home address and telephone number), ARJD Bylaws, and a list of the most recent committee members. He also proposed a discussion group feature, which would have the aspects of a chat room and a message board. Andy Ashe's office is presently undertaking to add material to the site, and Andy indicated that long-term, ARJD should look to having a Web master, preferably someone in the Association who has Web expertise. For now, Andy Ashe's office will continue; if maintaining the site becomes burdensome, we will revisit.

      Directory Report. Janette Bloom discussed the proposal to transfer to Kathryn Bann responsibility for publishing the directory as part of the duties of the membership committee. After some discussion as to whether ARJD should continue to publish a paper copy of the directory if the directory is on the Web site, the consensus was to continue publishing the directory in booklet form. That directory will continue to include personal information about the members—e.g., home address, home telephone number.

      There was a general discussion on ARJD's undertaking to do more of its own publishing, rather than depending on the personnel at the United States Supreme Court.

      The Catchline Report. Judy Ronningen's upcoming retirement has brought to the fore the question of who will edit and publish The Catchline. The Catchline is particularly time and labor intensive. It was noted that all ARJD publishing can be done by private publishers. After some discussion about abandoning the paper copy of The Catchline, the Board decided that our organization is devoted to books and noted that we would lose an intangible if we go completely electronic. Janette proposed that the Board take over editorial responsibility for The Catchline and proposed shifting the responsibility for The Catchline to the vice president.

OLD BUSINESS

      Salary survey. The consensus was that our last survey, completed about 5 years ago, was a little more elaborate than we need. The survey focused more on benefits than was probably needed. Most of the Board members indicated that the salary survey has been useful to them in setting salaries and in discussing salaries with their courts.

NEW BUSINESS

      Executive Board Spring Meeting. After much discussion on whether to meet on one day or two, as the meeting has traditionally been held, the Board determined to leave the meeting scheduled for two days Thursday afternoon and Friday morning. It was also determined that the spring Executive Board meeting would be in Boston. Tentative dates for the meeting were April 11 and 12 or April 18 and 19.

      Annual Meeting Dates. There was some discussion on changing the time, or at least the days, of the annual meeting. A suggestion was made that we combine the annual meeting with the court clerks' annual meeting, which is held at about the same time. There are about 150 people in the clerks' group, so there would be some benefits from size, but Tim Fuller pointed out that we would lose a lot of our autonomy; Janette Bloom expressed that same concern. Janette is to do a survey for the members on changing the meeting dates; she will have the survey at the spring Executive Board meeting.

      Electronic Publication Committee. At the annual meeting, Scott Henwood, the chair of the electronic publication committee, announced that the issue the committee had been formed to deal with was dead; he requested that the committee be disbanded. Under the Bylaws, a committee can be abolished only by the members at an annual meeting, so this would have to be brought up at the 2002 meeting. For now, the Board decided to keep the status quo.

      Possible Amendments to Bylaws. Janette pointed out the lack of civility at the meetings; she believes this impacts attendance and is insulting to our speakers. Her research has revealed that this problem is not usually addressed in an organization's bylaws and that it was something the person in charge of the meeting should handle. However, she noted that the president has enough to do and suggested that we consider adding as a new officer a parliamentarian.

WESTGROUP PUBLISHING "UNSELECTED" OPINIONS
by John Fee

February 14, 2002
      Without fanfare last September, WestGroup started printing "unselected" U. S. Courts of Appeals opinions, some of which are only one-paragraph orders, in a new printed "Federal Appendix." The series is prospective, printing only opinions issued after mid-June 2001, but it has already 19 volumes at this writing, with a new volume arriving weekly.

      The Federal Appendix features every type of federal case criminal, Social Security, tax, etc., but the text of every opinion is preceded by this sentence: "This case was not selected for publication in the Federal Reporter."

      Because of local rules in the Third, Fifth, and Eleventh Circuits, opinions from those Courts of Appeals do not appear in this new series. Those Courts of Appeals will continue to have their "unpublished" cases listed in tables appearing in volumes of the Federal Reporter 3d series. Conversely, cases from the other Courts of Appeals will no longer be listed in tables in the Federal Reporter.

      Unlike the hodgepodge in the Federal Reporter, opinions are arranged within the Fed. Appx. volumes sequentially by the Courts of Appeals, beginning with the District of Columbia Circuit and continuing through the numbered Circuits to the Federal Circuit.

      The preferred citation format, according to West, for a case in this series is Brooks v. Commissioner, 13 Fed. Appx. 7 (D. C. Cir. 2001). Cases in the Federal Appendix can be found online through WESTLAW or LEXIS (via Shepard's) using the Fed. Appx. citation.

      In light of this surprising new West series, we anticipate critical commentary from Reporters and possibly explanations from West on the significant implications of this development in forums or future articles.


FYI

      Bill Jones, Arkansas Reporter of Decisions, will appear at the Library of Congress (at the invitation of the Center for the Book) on Tuesday, March 5, 2002, at 6 p.m., to discuss his new book on Classics Illustrated Comics.


WHY THE ENGLISH LANGUAGE IS SO HARD TO LEARN

      1. The bandage was wound around the wound.

      2. The farm was used to produce produce.

      3. The dump was so full that it had to refuse some refuse.

      4. We must polish the Polish furniture.

      5. He could lead if he would get the lead out.

      6. The soldier decided to desert his dessert to the desert.

      7. Since there is no time like the present, he thought it was time to present the present.

      8. A bass was painted on the head of the bass drum.

      9. When shot at, the dove dove into the bushes.

      10. I did not object to the object.

      11. The insurance was invalid for the invalid.

      12. There was a row among the oarsmen about how to row.

      13. They were too close to the door to close it.

      14. The buck does funny things when the does are present.

      15. A seamstress and a sewer fell down into a sewer line.

      16. To help with planting, the farmer taught his sow to sow.

      17. The wind was too strong to wind the sail.

      18. After a number of injections, my jaw got number.

      19. Upon seeing the tear in the painting, I shed a tear.

      20. I had to subject the subject to a series of tests.

      21. How can I intimate this to my most intimate friend?

      There is no egg in eggplant, nor ham in hamburger, and neither apple nor pine in pineapple.

      We take English for granted; but if we explore its paradoxes, we find that quicksand can work slowly, boxing rings are square, and a guinea pig is neither from Guinea nor is it a pig.

      And why is it that writers write but fingers don't fing, grocers don't groce, and hammers don't ham?

      If the plural of tooth is teeth, why isn't the plural of booth beeth?

      One goose, two geese. So, one moose, two meese? One index, two indices?

      You can make amends but not one amend. If you have a bunch of odds and ends and get rid of all but one of them, what do you call it?

      If teachers taught, why didn't preachers praught? If a vegetarian eats vegetables, what does a humanitarian eat?

      In what language do people recite at a play and play at a recital? Ship by truck and send cargo by ship? Have noses that run and feet that smell? How can a slim chance and a fat chance be the same, while a wise man and a wise guy are opposites?

      Your house can burn up as it burns down, you fill in a form by filling it out, an alarm goes off by going on.

      When the stars are out, they are visible, but when the lights are out they are invisible.


ARE CITATIONS ON THE WAY DOWN?
THE CASE AGAINST FOOTNOTES
by Helen A. Anderson
(The following article is reprinted with the permission of the Washington State Bar News.)

      I don't usually obsess about citation form. I tend to think that the content of a legal argument is more important than, say, the proper abbreviation of words such as "Pacific" or "hospital" when they appear in case names. But one aspect of citation has caught my attention lately—whether to put citations in footnotes or in the main text.

      It used to be that citations in briefs, opinions and legal memoranda would be in the main text, while citations in law review or other journal articles would appear in footnotes. Recently, however, a movement to put all citations in footnotes has claimed many converts among the judiciary and the bar—though there is significant opposition to this trend as well. On July 8, The New York Times featured a front-page article on the footnote controversy, noting that many state court judges now use only footnote citations, and spotlighting the role of legal writing guru Bryan Garner in the footnote movement.

      Our state has been caught up in this movement. A significant number of Washington Court of Appeals' opinions now contain no citations, and very few case names, in the main text. Full citations are restricted to footnotes. Most Washington lawyers have probably shrugged off this development and continued to cite in the way they were taught years ago in law school. But each year I have a new crop of law students eager to evade page limits through creative use of footnotes, and resistant to the crusty old rules of citation. What do I tell these students? After a knee-jerk reaction, followed by reflection and rationalization, I have concluded that citations belong in the main text.

      When citations are included within the main text, it is easier for the reader to see what authority supports the argument. The reader can then better assess the argument itself. Legal argument depends as much on authority as on logic. Rather than interrupting the flow of argument, citations show the premises. An argument with footnoted authorities, on the other hand, does not flow smoothly—the reader is forced to interrupt the reading of the main text to consult the notes. Finally, the banishment of legal authority to footnotes sends a strange message about the role of authority in the law.

      First, several disclaimers. I see no relationship between quality of legal reasoning and the use of footnotes for citation. I have seen both brilliant and incomprehensible opinions in the law-review style, as well as the traditional style. Nor do I have a fanatical wish to banish all footnotes from opinions. Footnotes are properly used when dealing with a truly tangential matter, to explain why an issue will not be addressed, or to set forth a long quotation from the record or a statute. A footnote can also be the right place for a string cite (e.g., a list of cases or statutes from all 50 states) as long as you summarize the string in the text.¹

      Many appellate judges appear to have become converts to Garner's approach—banish the citations and let the argument proceed uninterrupted! Garner is the author of numerous articles and books, including A Dictionary of Modern Legal Usage (Oxford University Press, 2d ed. 1995) and The Winning Brief (Oxford University Press 1999). He recently argued in favor of footnotes in his otherwise excellent Legal Writing in Plain English 77 81 (University of Chicago Press 2001). Garner maintains that citations clutter up the text and make it practically unreadable. Although I usually agree with him on legal writing, we must part ways on the matter of footnotes.

The "Good Old" Style

      The traditional style of including citations within the text often seems ridiculous to new law students, as do the obsessive-compulsive Bluebook rules of citation format. It is true that the citations clutter the text with strings of numbers and gibberish abbreviations, but lawyers quickly learn to skim over these cites and pull from them certain vital information: the year of the opinion, the particular court, and sometimes the kind of case (civil or criminal, in rem, etc.). This information tells the reader something about the authority for the argument—how recent are these cases, and from what court? The cite also tells the reader whether the authority is persuasive or binding. The cite conveys all this information in shorthand.

      Certainly the traditional style can be abused with tedious string cites and excessive quotation. But the fault there is with the individual writer, not the style of citation.

Footnotes Interrupt the Argument

      The law-review style requires that all citations be placed in a footnote. Case names can appear in the main text, but the name is then severed from the citation. It is true that with this style the text appears to flow free, unimpeded by the strings of citation code. But this free flow of text is an illusion; the serious legal reader will never simply glide through it to the end. Most lawyers will need to interrupt their reading to see what authority underpins the reasoning.

      Footnote citations pose special difficulties in online research, where footnotes sometimes become endnotes online. It is a challenge to scroll to the end, find the appropriate endnote, and then return to the main text. In other databases, the full footnote appears as an interruption within the text rather than at the end of a page or document. There, the footnote text becomes more of an interruption than a mere textual citation ever could. Any free flow of argument the author sought through the law-review style is then lost.

      It is ironic that footnoted citation, which is supposed to make reading easier, comes from academic legal writing. Law-review reading, where the meat of the analysis is often in the footnotes, is anything but unimpeded. Few lawyers strive to imitate the law-review article in their writing to a court. In fact, junior lawyers are often told, "We don't need a law-review article," meaning, don't address every tangent or exhaust every possibility when writing to a court. The law-review style may be appropriate for academic legal writing, but it does not do much for opinions (or briefs). When reviewing an argument in an opinion, we want to know what authority the author relied on. If we have an intimate knowledge of the area of law, we will want to know how the court dealt with specific cases or statutes. Even if our knowledge is more general, we'll want to know whether the authority is recent, binding, etc. All of this information can be presented economically in textual citations.

      Garner counters this objection by suggesting that the text can make general references to the authority cited in the footnotes. For example, the text might refer to "Washington cases" or "a 1978 Supreme Court opinion." These kinds of references are helpful, but they add words to the text—words that would not be needed if the citations were there. And often the legal reader will need to know more specifically what the authority is. Garner's suggestion seems to recognize that the legal reader has a need to know something about the authority for an argument. It also seems to show that the problem may not lie with the awkwardness of citations in the text, but rather in antiquated overwrought rules for citation form—rules that can cause the citations to sometimes overpower the text, especially with an unskilled or inexperienced writer. Perhaps streamlined rules that allow citing to opinion paragraphs, rather than to several sets of reporters, would alleviate this problem; however, Bluebook reform is another topic.

Textual Cites Show Respect for Authority

      My final objection to footnoted citations is more fundamental than the writing and reading concerns expressed above. The trend toward footnoting citations is not only annoying for readers of opinions, it threatens to subtly undermine the rule of law. This objection may appear overstated, but the demoting of legal authority to a mere footnote seems to send a message that what really matters is not the cases or statutes but fluidity of the argument. Fluidity, logic and policy are all important to legal reasoning, but courts are supposed to tether their arguments to authority. In fact, fluidity, logic and policy are all supposed to take a back seat to binding authority. The New York Times article noted that others share my concern that footnoting citations may undermine the role of precedent. Does the move toward footnoting citation reflect a more general trend away from reliance on authority? This question could perhaps be a fruitful law-review topic.

      Finally, even if the law-review style takes over our courts, lawyers should be hesitant to adopt it for briefs. What works in court opinions will not necessarily work for litigants. A court wants to persuade us of the rightness of its ruling, but it need not make it easy for us to read the opinion. We are stuck with it, and if we want to know the law, we will read it, footnotes and all. A litigant, however, needs to make the argument clear and accessible—the authority for the argument had better be evident to even a casual reader. So, even if the law-review style takes over the courts, lawyers will adopt it at their own peril.

      Helen Anderson is a senior lecturer at the University of Washington School of Law, where she teaches legal research and writing. Before teaching, she practiced for nine years at the Washington Appellate Defender Association.


      ¹For a good discussion of the proper use of footnotes in appellate opinions, see Edward R. Becker, In Praise of Footnotes, 74 Wash. U. L. Q. 1 (1996) reprinted in 167 Fed. Rules Decisions 283.

The Catchline
Association of Reporters of Judicial Decisions

President:

Janette M. Bloom
Clerk of Court
Nevada Supreme Court

Vice President:

Sara V. Rocha
Deputy Reporter of Decisions
Supreme Judicial Court of Massachusetts

Secretary:

Bilee Cauley
Reporter of Decisions
Alabama Appellate Courts

Treasurer:

Tim Fuller
Reporter of Decisions
Washington Supreme Court

The Catchline
Editor: Judith Ronnigen
Supreme Court of the United States
Office of the Reporter of Decisions
1 First Street, N. E.
Washington, DC 20543