Dear Arizona Supreme Court–Please Keep the Table of Authorities.
Earlier this year I blogged about a rules change petition pending before the Arizona Supreme Court to do away with the Table of Authorities. As I explain in the post, the attorneys petitioning the Court for the change argue that,
The Table of Citations is no longer needed to help a reader navigate to a particular cited source because most briefs are filed in electronic format with searchable text. Cumulatively, appellate litigants spend an unjustifiable amount of time and resources creating Tables of Citations.
Apparently, lots of attorneys in Arizona (and elsewhere) agree. In reading the comments on to the petition, I was surprised to see that most persons and groups supported the change–including the state bar, the Pima County Bar Association, and the Attorney General’s office. There was even an appellate judge who wrote in favor of the change.
However, two criminal defense attorneys wrote comments against the change. One comment, filed by attorney Kevin Heade, even includes a Table of Authorities. Heade cites to my February blog post and the arguments I made against the change. Mr. Heade explains in his comment how he uses the Table of Authorities:
As opposing counsel, I am often more concerned about the authority that my opponent relies upon than their actual argument. This is because I am concerned with convincing the court that the authority—not necessarily my argument—requires that my client to prevail.
When I get an opposing party’s brief, I review the table of contents, hoping that opposing counsel has provided me the courtesy of including subheadings of their arguments in their briefs. I review the argument headings and then flip to the table of citations to review the authority offered to support their arguments. Within seconds, I have a strong grasp on the merits of their brief.
My subsequent review of the contents of the brief is aided by this efficient survey of the authorities provided by opposing counsel’s table of citations. In a way, the table of citations serves an important foreshadowing function that aids the reader in processing the argument. See Michael J. Higdon, Something Judicious This Way Comes . . . the Use of Foreshadowing As A Persuasive Device in Judicial Narrative, 44 U. Rich. L. Rev. 1213, 1219 (2010) (discussing how foreshadowing aids in information processing.).
The ability to efficiently survey the authorities in a brief also has a persuasive effect on the reader. Briefs that are supported by ample authority conveyed in a cleanly presented table of citations are likely to create a better first impression on the reader. The reader can anticipate that the argument sections will be rooted in controlling authority. Competence is pre-established. This, too, is a psychological benefit of foreshadowing provided by the table of citations. Id. at 1226-1233. (discussing role of foreshadowing in priming and schema theories of information processing.).
Talk about working smart! And no one can argue that Mr. Heade, a criminal defense attorney who represents indigent clients, has a lot of time on his hand. My guess is that he is one of the busiest attorneys who comment.
I understand that the Court will be considering this rules change tomorrow. I hope that it keeps the Tables!