Chapter 25 Write The Cites Right

• Jurisdiction: New York

Chapter 25 — Write the Cites Right

To write it right, you’ve got to cite the sites. Citing is more than Bluebooking. Citing is more than helping your reader find your citations. Citing is legal method. The way you cite can determine whether a court will accept your argument.

Tanbook, Bluebook, and ALWD

Cite according to the New York State Style Manual, called the Tanbook,³⁷⁶ when you write for a New York State court. Bluebook³⁷⁷ when you write for a federal court. Because the Bluebook miscites all its New York examples, use the St. John’s Rules of Citation³⁷⁸ in conjunction with the Bluebook for New York citations. ALWD, pronounced “All Wid,”³⁷⁹ is a Bluebook rival.

Headnotes & Syllabuses

Never cite headnotes or syllabuses or, worse, quote from them. But skim them to save research time.

For a case in which a court quotes a headnote, see the New York Court of Appeals’s 1888 People v. O’Brien,³⁸⁰ an example of opinion writing from a bygone era.

Because of the Supreme Court’s 1905 United States v. Detroit Lumber Co.,³⁸¹ every syllabus to a United States Supreme Court opinion includes a footnote stating that the syllabus has been prepared for the reader’s convenience but is not part of the opinion.

Signals

No signal precedes a citation that supports your proposition directly. Thus, no signal after a quotation.

“Contra” if your citation contradicts your proposition directly.

“See” if your citation supports your proposition indirectly or by inference. When using “see,” explain the citation in your text or in a parenthetical or bracket following your citation. Example: If you discuss the facts of your case and then cite a case, “see” must precede your citation at the end of your sentence because your cited case did not discuss the facts of your case.

“See also” before a second citation if the first citation supports the proposition directly but the second supports the proposition only indirectly. This signal is always lowercased (“see also”) and preceded by a semicolon.

“But see” if your citation contradicts your proposition indirectly.

“E.g.” if your citation gives one or more examples to support your proposition directly. Do not write that “courts have held” or that “at least one court has held” and then cite one case only. Use “e.g.,” or write “one court has held.” Your reader might suspect that your research disclosed but one case and that you are exaggerating.

“See, e.g.,” if your citation gives one or more examples to support your proposition indirectly.

“Cf.” if your citation supports your proposition by analogy.

“Accord” is different from “see also.” Use “accord” when a citation from another jurisdiction supports your proposition. Also, use “accord” to cite a second authority after quoting a first authority if the second authority supports the original proposition. Example: The Court of Appeals has noted that “‘the appropriate date for measuring the value of marital property has been left to the sound discretion of the trial courts . . . .’McSparron v. McSparron, 87 N.Y.2d 275, 287 (1995); accord Domestic Relations Law § 236(B)(4)(b).”

“But cf.” if your citation contradicts your proposition by analogy.

“Compare . . . with” to compare one proposition and citation with another proposition and citation.

“Id.” and “see id.” as short-form citations that refer unambiguously to a single, immediately preceding citation.

It’s better to italicize than to underline. If you underline signals, be careful not to underline commas not italicized in signals that end with commas. Correct: “See, e.g.,” and “e.g.,” or “See, e.g.,” and “e.g.,”. Incorrect: “See, e.g.,” and “e.g.,” or “See, e.g.,” and “e.g.,”. The same rule applies to cases. Don’t italicize or underline too much. Correct: McSparron v. McSparron, 87 N.Y.2d 275 (1995). Incorrect: McSparron v. McSparron, 87 N.Y.2d 275 (1995), or McSparron v. McSparron, 87 N.Y.2d 275 (1995).

Citation Placement

It’s not graceful to place a citation at the beginning or in the middle of sentences. Doing so is the sign of an insecure scholar. Emphasize arguments and themes, not authority. Cite the source in a separate sentence that consists solely of the citation. Cite only to support your arguments and themes—or to contradict the other side’s arguments and themes.

Citing in separate citational sentences assures that the rules from the cases, not the cases themselves, are stressed: Lawyers and “judges too often fail to recognize that the decision consists in what is done, not in what is said by the court in doing it.”³⁸² Overreliance on authority spells a positivist approach to the law in which cases count for more than reason, distinctions among cases are ignored, and reasoning is hidden by long, dull discussions of authority. Overreliance on authority also leads to disorganized legal writing in which the factual minutiae of cases are discussed paragraph after paragraph and in which citations are strung together at length. Unless the weight of the authority is important, cite cases for their rules, not as ends in themselves. Then discuss the facts of cases only to distinguish or analogize them to the facts you’re arguing. ³⁸³

Relying on cases instead of arguments will mislead or miscue your reader to your client’s detriment. Not all precedent is binding, and not all statutes can be interpreted at face value. As Illinois Chief Justice Schaefer explained, “lawyers tend to treat all judicial opinions as currency of equal value . . . Yet, when the judicial process is viewed from the inside, nothing is clearer than that all decisions are not of equal value . . . .”

And droning on about cases is stultifying. After all, “few things [are] more boring than . . . page after page of case discussion in which each paragraph begins: ‘In A v. B . . .’; ‘In C v. D . . .’; ‘In E v. F . . . .’ By the third one, the reader feels like saying ‘who cares?’” ³⁸⁴

Explanatory Parentheticals

Use a parenthetical following your case citation if your citation reference is unclear, such as when your reference supports your proposition inferentially or indirectly and you don’t explain the reference in your text. Use a...