The Future of Citations: Moving Them, Modifying Them, or Just Cleaning Them Up

Ah, citations. Some appellate advocates may see these as the bane of their writing existence. But, of course, they perform an important–indeed, an essential–function in supporting an appellate advocate’s argument. Without them, a judge reading your brief would never know if your point is backed up by precedent or not. Even so, it is worth thinking about how citations can be made less burdensome while still being useful to an appellate court.

Let’s start with the Bluebook. While almost universally accepted as the authority on citations, there are some alternatives. And courts often have their own style guides. Perhaps an overhaul of how we’ve always done things is in order including whether to use something other than the Bluebook.

Further, various legal writing experts have made suggestions about reforming citations. One of the legal writing experts that has long advocated for change is legal writing guru Bryan Garner, who has contended that citations should be moved from the text to footnotes. See Bryan Garner, The Winning Brief 114-19 (1999). Of course, not everyone–well, maybe hardly anyone–has made that change. I, for one, am just fine where they are. Frequent readers of briefs have learned how to simply ignore the citations as they read, unless, of course, they want to know what is being cited. But this doesn’t mean we can’t think about it.

Some courts also have implemented new ways to cite cases. A recent movement has been toward what is commonly called “universal citation.” This citation form is sometimes referred to as “media neutral” or “vendor neutral.” Ostensibly, the idea is to make locating an authority easier. It also steers advocates away from citing proprietary products of any particular publisher. And it directs the Court to a specific paragraph of a decision rather than just to a specific page. Apparently, this is not a new idea. The ABA recommended the use of universal citation in 1996. And as of August 31, 2020, at least sixteen states had implemented universal citation.

But not all of these state-mandated modifications have survived. Who would have thought that the North Carolina Supreme Court’s first “controversial” ruling (but not its last) after flipping from a 4-3 Democratic majority to a 5-2 Republican majority would be to abandon universal citation just two years after it was implemented? Interestingly, the administrative order rescinding the requirement noted two dissents.

The other newest sensation in the world of citations is the use of the parenthetical “cleaned up” to replace the bulky parentheticals of the past. But now there is a new contender thanks to–again–the North Carolina Supreme Court. Although that Court has used “cleaned up” in at least 200 cases since February 2000, it more recently has in 33 decisions utilized instead the parenthetical “extraneity omitted.” It does not appear that any other appellate court in the country has used this parenthetical. I’m not sure that one is going to catch on, but I’m open to it–particularly because I have been known to appear before that Court on occasion.

Are there other ideas for simplifying citations? Making them easier for practitioners? More helpful for the appellate courts? Maybe ChatGTP can come up with something, although I understand it has had some trouble with legal citations. Regardless, citations aren’t going away. We might as well try to make them better.