{"id":149,"date":"2014-04-08T21:35:30","date_gmt":"2014-04-08T21:35:30","guid":{"rendered":"http:\/\/citeblog.access-to-law.com\/?p=149"},"modified":"2021-12-11T18:12:55","modified_gmt":"2021-12-11T18:12:55","slug":"if-the-judge-will-be-reading-my-brief-on-a-screen-where-should-i-place-my-citations","status":"publish","type":"post","link":"https:\/\/citeblog.access-to-law.com\/?p=149","title":{"rendered":"If the Judge Will Be Reading My Brief on a Screen, Where Should I Place My Citations?"},"content":{"rendered":"

A. Introduction<\/h2>\n

In a prior post<\/a> I explored how the transformation of case law to linked electronic data undercut Brian Garner\u2019s longstanding argument that judges should place their citations in footnotes<\/a>.\u00a0 As that post promised, I\u2019ll now turn to Garner\u2019s position as it applies to writing that lawyers prepare for judicial readers.<\/p>\n

\"Brief<\/a><\/p>\n

Implicitly, Garner\u2019s position assumes a printed page, with footnote calls embedded in the text and the related notes placed at the bottom.\u00a0 In print that entirety is visible at once.\u00a0 The eyes must move, but both call and footnote remain within a single field of vision.\u00a0 Secondly, when the citation sits inert on a printed page and the cited source is online, the decision to inspect that source and when to do so is inevitably influenced by the significant discontinuity that transaction will entail.\u00a0 In print, citation placement contributes little to that discontinuity.\u00a0 The situation is altered \u2013\u00a0 significantly, it seems to me\u00a0 \u2013\u00a0 when a brief or memorandum is submitted electronically and will most likely be read from a screen.\u00a0 In 2014 that is the case with a great deal of litigation.<\/p>\n

B. Electronic briefs and memoranda filed with federal courts<\/h2>\n

Except for the Supreme Court, electronic filing is available in nearly all federal courts and proceedings<\/a>.\u00a0 In many it is mandatory<\/a>.\u00a0 With some federal courts that has been true for years<\/a>.\u00a0 The recent advent of the iPad and follow-on tablets has allowed judges and their law clerks to place electronically filed case documents on the screen of a highly portable computer, one that is capable of accessing the full case record and the online legal research services used by the court with minimal interruption.\u00a0 A internal survey conducted by Federal Judicial Center in early 2012 found that fifty-eight percent of the judges in federal appellate, district and bankruptcy courts used an iPad for court work<\/a>.<\/p>\n

Inexorably that has led some judges to press for links between the citations in the documents they read from the screen and the authorities or portions of the record to which they refer.\u00a0 Local rules commonly permit their inclusion. \u00a0Local Rule 25.1<\/a>(i) of the Second Circuit is typical.\u00a0 It provides:<\/p>\n

(i) Hyperlinks. A document filed under this rule may contain hyperlinks to (i) other portions of the same document or to other documents filed on appeal; (ii) documents filed in the lower court or agency from which the record on appeal is generated; and (iii) statutes, rules, regulations, and opinions. A hyperlink to a cited authority does not replace standard citation format.<\/p><\/blockquote>\n

An ad hoc group of federal judges and judicial staff<\/a> has taken the further step of affirmatively encouraging such links.<\/p>\n

The judges of the Fifth Circuit, not content to leave the matter to attorney initiative, prevailed upon the chief of the court\u2019s technology division, Ken Russo, to develop an application that converts citations in e-filed briefs to links.\u00a0 In the case of citations to the record, the links retrieve the cited portion from the CM\/ECF system.\u00a0 Citations of authority are linked to the online service of the reader\u2019s choice (which during a period of transition between \u201cclassic\u201d and next generation systems at both Westlaw and Lexis may well be different for judges and law clerks).\u00a0 Since the brief author or opposing counsel may be an attorney who uses Fastcase or Casemaker (both of which are represented in the states which comprise the Fifth Circuit<\/a>) Russo\u2019s system also contemplates those services as link options.\u00a0 To facilitate the programmatic linking of references to the record, the court issued a local rule, effective December 1, 2013, prescribing a new and distinctive format for such citations<\/a>.\u00a0 Finally, anticipating similar link-related format changes in the future, the circuit has issued a rule 25.2.15<\/a> authorizing the clerk to \u201cmake changes to the standards for electronic filing to adapt to changes in technology.\u201d<\/p>\n

C. E-filing in Texas and other states<\/h2>\n

Electronic filing has progressed more slowly and unevenly in state courts.\u00a0 Nonetheless, it has a presence in most states, with mandatory e-filing existing to some degree<\/a> in nearly half.\u00a0 Leading the pack, especially at the appellate level, is Texas.\u00a0 (Appellate e-filing in other states is summarized in a recent survey<\/a> conducted by Blake Hawthorne, Clerk of the Texas Supreme Court.) \u00a0On January 1, 2014, electronic filing became mandatory for cases in the Texas Supreme Court and for civil cases in the state’s intermediate courts of appeals<\/a>.\u00a0 Like other appellate rules, federal<\/a> and state<\/a>, those in Texas had already been adjusted to the modern era by the conversion of document length limits from pages to maximum word counts<\/a>.\u00a0 Because these are documents Texas judges read from screens of various sizes the minimum font size was, at the same time, increased from 12 point to 14.\u00a0 (All justices of the Texas Supreme Court have tablets and smart phones<\/a>.)\u00a0 To ease the transition,\u00a0 court staff prepared detailed guidance<\/a> on how to prepare briefs that not only comply with the new rules but are optimized to fit judicial work patterns and preferences.\u00a0 One guide<\/a> includes advice on such points as how to structure a pdf document so as to facilitate the reader\u2019s navigation through it, why and how to link to cited authority, and how to set the document\u2019s original display in view of the writer\u2019s uncertainty about the screen real estate it will occupy.<\/p>\n

D. The implications for citation placement<\/h2>\n

As noted in the prior post<\/a>, today\u2019s online legal research environment has replaced the judicial opinion “page\u201d as the unit of view with the continuously scrollable document.\u00a0 Page break locations necessary for pinpoint citation are indicated, but there being no true page, footnotes are either moved to the document\u2019s end or displayed in close proximity to their calls.\u00a0 The dominance of pdf as the format for e-filed documents might encourage the impression that, by contrast, the page remains a meaningful unit in the electronic brief.\u00a0 But whenever the reader may be working from a screen rather than a print copy of the file that impression is deceptive.\u00a0 In varying degrees, desktop, laptop, tablet, and smart phone all place the reader in control over how a pdf file is displayed.\u00a0 Depending on the device and application, readers may be able to open bookmarks allowing navigation within a document, immediately adjacent to its text.\u00a0 By zooming, they can increase the perceived size of the font at the expense of the amount of text they see on the screen.\u00a0 They can choose to scroll rather than page through a document.\u00a0 Footnotes remain footnotes, but on the screen there is a strong probability they will not be visible at the same time as the segment of the text to which they relate.<\/p>\n

If the electronic document has been prepared with care, its footnote calls will be linked to the notes, and if citations have been linked to the cited authorities either by the author or, as in the Fifth Circuit, by court software, the path to those authorities will not depend on the citations\u2019 sharing the reader\u2019s field of vision with the propositions they support.\u00a0 On the other hand, the reader\u2019s decision over whether and when to inspect a cited source now involves greater discontinuity than simple eye movement.<\/p>\n

I will concede, as Garner stresses<\/a>, that embedded citations inescapably interrupt the flow of the writer\u2019s exposition, but use of that format is the only way, in an electronically filed brief, to assure that one\u2019s citations are seen together with the textual material to which they relate.\u00a0 To the extent that a citation operates purely as a reminder to a judicial reader that proximity is useful.\u00a0 More importantly, however, if the judge or law clerk need simply touch or click the citation to view the authority or portion of the record to which it points, proximity at once informs and invites that move.\u00a0 That should be a move that a brief\u2019s author will want to facilitate.\u00a0 For while judges write their decisions with authority and cite primarily to explain, lawyers write memoranda and briefs to persuade and cite to invoke the authority of others.<\/p>\n

In sum, as more and more judges read lawyer submissions from a screen, with the near instant capability to follow citations to the case, statute, or record excerpt to which they refer, those who previously placed citations in footnotes have strong reason to reconsider<\/a>.<\/p>\n

E. Judge for yourself<\/h2>\n

The briefs filed with the Texas Supreme Court are available for inspection at a public web site<\/a>.\u00a0 By court mandate they are filed in pdf.\u00a0 As the result of court encouragement many contain citations that can be executed by touch or click.\u00a0 Court staff tell me that the shift to electronic media has led to fewer briefs with their citations in footnotes.\u00a0 That pattern has not vanished, however.\u00a0 As a result, the court\u2019s site contains examples of the alternative styles that anyone can examine and compare.\u00a0 I invite you to conduct the following experiment:<\/p>\n

Download the following two briefs and work your way through them as though you were a judge.\u00a0 While doing so, consider these questions, bearing in mind the extent to which your answers are affected by the device and software you are using and the preferences you have set:<\/p>\n