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Many members of the legal community describe legal writing with a host of unsavory adjectives: obtuse, dense, incomprehensible. Paragraphs broken into fragments by long strings of numbers and coding, text mired in verbiage, and circuitous arguments are the most criticized aspects of opinions, briefs and law journal writing. But that is just the nature of legal writing, said Bill Draper, a reference librarian and lecturer at the University of Pennsylvania School of Law. Lawyers, he said, “write to have others use their decisions as precedent.” One man with standing in the field is working to make legal writing concise and less codified. And some local lawyers agree with him in theory, if not in practice. THE IDEA Bryan Garner, president of Texas-based LawProse Inc. and editor of “Black’s Law Dictionary,” as well as a lecturer and author on legal writing, is leading a movement to take the citations from within the body of legal documents and move them to reference footnotes at the bottom of each page. “At the moment, legal writers are often not writing real paragraphs at all,” Garner said. “They are writing a sentence or half a sentence followed by citations cobbled together in writing and reasoning that is less sound.” In his book “Legal Writing in Plain English,” Garner wrote: “Reference notes can cure these ills. That is, put citations — and generally only citations — in footnotes. And write in such a way that no reader would ever have to look at your footnotes to know what important authorities you are relying on.” At his seminars and in his writings, Garner challenges legal writers to strip out all the numbers and citations and look at what is left. What you’ll find, he said, in addition to what are most often embarrassed litigators, are “gaps in logic” and “wooden prose.” VIEWS FROM THE INSIDE Although some of the local attorneys who have been introduced to Garner’s ideas through his writing seminars support his footnoting argument, they are not rushing to adopt it just yet. “You are forced to write better, just concentrating on the legal argument, and there is something to be said about that,” said Edward Koch of the appellate group at White & Williams. “But for now, I would hate for judges to see my brief as different instead of [noting] its actual substance.” Jeff Eichen, a partner in intellectual property litigation at Schnader Harrison Segal & Lewis, is also a proponent of Garner’s footnoting system, though he recognizes that it can be a negative if it “doesn’t look like what the court is used to seeing.” The common sentiment among Philadelphia lawyers is that for them to implement the footnoting system, first there must be a widespread movement by the judiciary. WHERE IT ALL BEGAN Garner’s introduction to footnoting in legal documents occurred in 1983 in the 5th U.S. Circuit Court of Appeals. Working on legal briefs with English professor John Trimble of the University of Texas proved to Garner that “volume and page numbers were getting in the way [of his writing].” While Garner is adamant in his support of footnoting citations, he insists that he is not a “one-issue person” and that his cause just happens to be a lightning rod. He is fast to clarify that he is not footnote-happy. It is just that as editor of the Scribe’s Legal Journal, he prohibits substantive, or what he refers to as “talking,” footnotes. When it comes to the citation bible of attorneys, “The Bluebook,” Garner does not believe it has the final say. “Third-year Harvard law students have no business telling lawyers and judges where to put their citations. It’s beyond their jurisdiction,” he said. IMPLEMENTING THE CHANGE But a system so entrenched in tradition will not be quick to change, especially in a conservative state like Pennsylvania. The judges of the state appellate courts and of the federal courts in Philadelphia are keeping cites within the body of opinions. Citations “provide an easy means of using precedent to bolster argument,” said Michael Mugmon, a third-year law student at Penn and editor-in-chief of the Penn Law Review. Mugmon said that research aids such as Westlaw and Lexis Nexis are structured to support in-text citations and that footnoting could be nothing more than a quick fix. “I’d prefer it not to change,” said Bill Fedullo, a chairman of the Philadelphia Bar Association’s state civil committee. “It’s not broke, so what’s the need to change it,” said Fedullo, a sole practitioner. Courts in several states, including Delaware, have already adopted Garner’s system, writing their opinions with text uninterrupted by citation. Another national figure in legal writing agrees with Garner that footnotes should not contain substantive information. But he goes a step further and says they should not even exist. Abner Mikva, a former chief judge of the U.S. Court of Appeals for the D.C. Circuit, reached a point at which he vowed never to use footnoting in legal opinions again, and he did not do so for the last 13 years of his tenure as judge. Mikva, a visiting professor at the University of Chicago Law School, whose resume includes a year as chief counsel to the Clinton White House, is a proponent of end notes, as long as they are used purely for purposes of citation. “If God had intended footnotes, he would have made our eyes vertical instead of horizontal,” he said. IN THE YEARS TO COME There is no way I can teach people to write good paragraphs as long as they have all these barnacles in the text,” Garner said. He said that in-text citations are a roadblock to clear, concise and persuasive legal writing. “I hope that [footnoted citation] is something that will happen,” said Eichen, the Schnader Harrison partner. “It has a future, but it depends on whether or not we, as a profession, can put substance over form and accept what I think is a good writing style.”

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