Says Who? Why Good Citation Matters (and Why It's Easier Than You Think)
Publication year | 2022 |
Pages | 0224 |
Citation | Vol. 83 No. 4 Pg. 0224 |
By Prof. Jeffrey M. Anderson
A lawyer is a professional writer, but a lawyer's purpose is not self-expression. A lawyer speaks (and writes) for someone else, to achieve a certain outcome, in a system governed by rules upon rules upon rules. It is technical, detailed work. Its hallmarks are clarity and precision. The purpose of legal writing is not principally to stir the soul but to satisfy a skeptical mind. A lawyer hoping to persuade another lawyer or judge to accept some position must write in a way that answers obvious questions. Because good citations help answer obvious questions, they are important to good advocacy. And because the most commonly used rules of citation are easily accessible and easy to follow, deploying good citations is easier than you might think.
Good Citations Are Important to Good Advocacy
Lawyers - and especially the lawyers who become judges - are more skeptical than most audiences. Lawyers don't take much of anything at face value, we parse words that ordinary people think are plain, and our ears are attuned to hedging, qualification, and rhetorical sleight of hand. If one sentence (or even one word) doesn't sound quite right, we read it again - because we're looking for a loophole (or maybe a trap). That's not cynicism or paranoia; it's just due diligence. Lawyers must have reasons for the things we say and write; we must prove everything, even the details. We do that through citations to legal authorities (for legal assertions) and evidence (for factual assertions). Indeed, courts often require that we provide citations to adequately present an issue for decision.1
The quality of the proof consists mostly in the sources cited. There are better and worse sources, more relevant and less relevant sources, binding and merely persuasive sources. Some sources prove a particular proposition better than others do; some sources have more weight than others in a particular forum. That is why lawyers must pay close attention to the sources we rely on. But the form of the citation matters, too, because it (1) helps the law-trained reader find the proof in the source, (2) shows the reader how the source proves the assertion, and (3) demonstrates the lawyer's proficiency and care in communicating legal analysis and argument. Citation is not an afterthought; it is essential to good legal writing.
Good Citations Show the Law-Trained Reader Where To Find Proof for Specific Assertions of Law and Fact
Good citations help your reader - usually another lawyer or a judge - find the proof that supports your assertions. Your reader is a professional skeptic, so you want to show, not just tell. And you show your reader that what you're saying is true, or at least reasonable, by pointing to sources that matter. In our business, the sources that matter are legal texts - constitutions, statutes, regulations, rules, cases - and evidentiary materials.
For every assertion of law, give an accurate, specific citation to a legal authority. That will satisfy your reader that (1) you have done some research to find the applicable legal rules, and (2) your description of legal rules conforms to the legal authorities that will control your case. Likewise, for every assertion of fact, give an accurate, specific citation to some evidentiary source. Don't just say that the parties executed the contract; point the reader to the document. Don't just say that the defendant was aware of the dangerous condition in the store; show the reader the passage of deposition testimony where the defendant admitted that she saw the wet floor. (Better yet, quote the critical language from the deposition, and give an accurate citation.)
You may write a paragraph that is entirely accurate in its description of legal rules and facts. But leave out the citations and your law-trained reader will ask, "Says who?" Give the reader an easy way to check your work. If the reader doesn't actually check the work, the reader at least will see that there are sources to check -and you aren't afraid of them. If the reader does check the work, then (presumably) the reader will confirm that your assertions are true. That will be good for your argument and good for your credibility as well.
Good Citations Can Advance Your Substantive Arguments
Not only do good citations show your reader where and how to confirm your legal and factual assertions, but they can also advance the substantive points of law and fact that are important to your analysis.
Citations are part and parcel of any substantive legal argument - because legal argument is all about authority. Lawyers do not analyze their clients' problems as matters of first principles; rather, they find the settled rules and the similar (and dissimilar) precedents, and apply those rules and precedents to their clients' problems. (That should give hope to new lawyers, who may lack deep knowledge of first principles, but have access to all the relevant rules and precedents.) Similarly, judges typically do not decide cases on blank slates; rather, they find applicable texts (constitutional provisions, statutes, regulations, or rules) and binding precedents applying those texts to make sense of a particular situation. Most of the time, lawyers and judges do not ask, "What is the best resolution of this issue?" but instead, "What does the relevant authority require?" As Professor Frederick Schauer explained, "[i]n other decision-making environments, authority may play some role, but first-order substantive considerations typically dominate. In law, however, authority is dominant, and only rarely do judges engage in the...
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