I previously posted a very preliminary look at how legal writing could be made more comprehensible to all readers while satisfying the needs of law-trained readers using marginal notes for citations instead of footnotes. I continue to doubt that these ruminations will make any difference, but I had to take this to the next step because I’ve been closely reading a couple hundred briefs in cases for an empirical study that I’m doing, and my level of frustration is peaking. I can’t understand how judges can stand to read these things, designed so poorly as they are!
Consequently, I decided to take a break and to try to redesign just the argument section of a legal brief to see if I could make it more pleasant to read without impeding the rhetorical function of the citations. As for the latter, in “Citation Literacy,” 70 Arkansas Law Review 869 (2018), Alexa Chew summarizes very nicely the role of the in-line citations in legal briefs: “the citations transfer information about the cited authority to the reader at the reader’s point of need” (p. 872). “The information coded in the citations enables the reader to instantly assess the quality of the authority used to support the claim” (pp. 872-73).
Pushing the citation information to footnotes, as Bryan Garner has frequently recommended (including here and here), puts the reader at a disadvantage, because she must look to the bottom of the page, or scroll quickly to it and back up if she is viewing the brief on an electronic screen, to find the weight and recency of an authority. To be fair, Garner proposes that the author of a brief should express the court identity and year of a cited case in her textual sentence, so the reader would not have to scroll to find that info. I don’t have time to address the issue fully here, but in my view, that has the effect of foregrounding the source of a legal authority too much. In any event, Garner’s solution does not help with the citations to the record that are frequent in lawyers’ briefs.
Garner has noted that the reason we have in-line citations in briefs in the first place is that these conventions arose when lawyers were writing briefs typed on typewriters; contemporary word-processing technology makes footnotes much more workable. But contemporary open-source typesetting technology (in the form of LaTeX Tufte book/handout template) makes available another solution, which I think enjoys benefits of both of its antecedents, namely margin notes.
The rest of this post shows the transformation of an excerpt of the argument from a real court brief: It shows the brief’s native form, as it was filed by counsel; it then moves the citations into margin notes; it finally integrates portions of the note content back into the text. My goal was to make the brief excerpt more readable and more effective, while changing as little of its prose as possible.
One note: I chose the Tufte handout template in LaTeX because it’s handy and I know it well (having used it to write a book). I don’t suggest that all the font and layout choices in it, including things like heading styles, are appropriate for legal briefs. I’m really just focusing on showing the utility of margin notes. Other design choices could be adjusted later. This is also a fairly preliminary run at this concept, so I welcome feedback in the comments or privately.
The original brief
This brief comes from a copyright case before the U.S. District Court for the Southern District of New York. The brief is West Publishing’s opposition to the plaintiff’s motion for summary judgment. It makes a copyright fair-use argument. The court’s opinion on the motion appears at White v. West Publishing Corp., 29 F. Supp. 3d 396 (S.D.N.Y. 2014). I pulled the brief from Bloomberg Law.14.02.63 D West O PMSJ
For a particularly egregious case of a nasty citation sentence, see page 5 of the PDF (marked page 8 of the brief and page 12 of the PACER document), where only four lines of a 25-line or so paragraph are text; the rest are a long string citation–which has its own seven-line footnote! But there are numerous other citation-heavy paragraphs that are hard for the reader to parse. A typical problem (though not particularly bad in this brief) is sorting which parts of a paragraph are explanatory parentheticals in citations and which are actually the text of the paragraph. (See Section C on page 9 of PDF, 12 of brief, 16 of PACER.)
Marginal citations: A first attempt
This second version shows the same brief excerpt moved into the Tufte template, with the citations moved over to marginal notes.14.02.63 argument verbatim
It works well on pages 3 through 6. The citation clutter is moved out of the text, but the citation information is readily at hand for the reader, who needs only to glance slightly to the right from any footnote reference number to find the corresponding margin note and its content. Whether reading this in paper or on a screen, it represents a considerable improvement from the original.
But pages 1 and 2 represent notable failures. Here, the authors of the original document jam so much (important) content into explanatory parentheticals in the citations and footnotes that the margin notes become bloated. Note 17 is so bloated in fact that it runs off the bottom of page 2, and notes 18 and 19 are just not visible.
Consequently, I attempted to integrate more of the content of those notes into the text, while changing as little of the original drafters’ prose as possible.
Marginal citations: Explanatory content integrated in text
The result is this version.14.02.63 argument revised
Now the margins look considerably less cluttered. The longest margin note is number 52, which weighs in at a hefty 13 lines, and it is a good ole string cite. But the next largest is note 10 at seven lines, and the great majority of notes are three lines are fewer.
In this form, we can see another advantage of this page design: It breaks the monotony of the original brief’s “sea of gray.” In such court documents, every page tends to look the same, with the right margin ragged (not justified) but monotonously uniform. In the final margin-note version, the marginal notes vary the appearance of each page enough–giving each page a sort of ‘texture’ on its right side–to make the document appear less monotonous. (The original margin-note version failed to do this on pages 1 and 2 because of bloated note sizes.)
If I were a judge, I would very much appreciate reading briefs in this form. But I’m curious to hear what others think, especially if you are a judge who has to read lawyers’ briefs day-in and day-out.