Legal Writing

Federal judge issues footnote warning, threatens to toss pleadings using wrong format

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A federal judge in Maryland has issued a warning: Keep case citations out of footnotes, or watch me toss your pleadings.

U.S. District Judge James Bredar of Maryland issued that Aug. 23 warning (PDF) to lawyers who had failed to follow local court rules and the Bluebook, report the Wall Street Journal Law Blog and Above the Law, which credits legal writing expert Ross Guberman for unearthing Bredar’s “benchslap.”

The Bluebook says citations in briefs generally should appear in the text absent local court rules to the contrary. And local court rules do not permit citation of citations in footnotes, Bredar said.

“Counsel should familiarize themselves with these rules,” Bredar said. “Future noncompliant filings will be stricken without prior notice.”

Above the Law’s report “has stirred much buzz among Twittersphere’s legalati,” according to the Law Blog. There has been a running debate on the better rule.

Bryan Garner, president of LawProse and columnist for the ABA Journal, took the position in an ABA Journal column that citations in text “amount to useless detail that distracts the reader from the content.” He acknowledged in an interview with the Law Blog, however, that some lawyers “abuse” footnotes “to get around page limits.”

While Circuit Judge Richard Posner is no fan of the Bluebook, the appeals judge is in “the pro-text camp,” Above the Law says. So too was the late Justice Antonin Scalia, who told the ABA Journal of his disagreement with Garner in a 2008 interview.

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