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Role of citations in legal writing--responses

The student essay about citations and their importance or lack of importance prompted three thoughtful responses:

Commenter #1:
This is a great essay and it perfectly illustrates what you've called the "tyranny of the inconsequential." But looking at the other side of the issue, though, the lesson here is that legal employers have high standards for substance and form. Hey, maybe that's why the top firms are willing to pay over $160,000/year to first-year associates! The citation-fixated associate in the story may have needed perfect citations because judges and clerks make a big deal out of it, and he was going to cut and paste the citations from the memo into a brief or other court document. So long as judges and other important legal audiences put a high premium on citation form, I don't think legal employers are so unreasonable to expect proper citations.

Commenter #2:
I've been writing briefs, trial court and appellate, since 1977. I started very early in my career not worrying about citation style. In my mind, the purpose of a brief or a memo is to communicate and persuade. If the writing accomplishes that function, then it has done its job.

The "elephant in the room" question is whether "bad" (really just non-standard) citation format distracts from the communication/persuasion function. I suppose that it could get so bad that it becomes a distraction and must be dealt with. However, short of that, I've never seen it as a problem. In 30 years of writing briefs and doing oral arguments, I have never had a judge, trial or appellate, say one word about citation format. This is a business of ideas. Communicate those, and you've got it made in the shade.

Commenter #3:
For what it's worth, I think the essay would have been more valuable if the student realized that legal writing is about both form and substance--that's why old briefs and motions contained the heading "Arguments and Authorities." If your substance cannot be independently verified through the citations, it's not worth much. This is especially so when you are arguing a tough position for a tough client. As a law clerk, I read the cases cited by each side in evaluating the merits of their arguments. And I especially scrutinized the arguments made in a sloppy brief with sloppy citations.

What's interesting here is that neither associate grasped the duality of legal writing. I wonder what practice fields they were in and if that made a difference.

Full post as published by Legalwriting.net on July 24, 2008 (boomark / email).