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There’s a movement afoot in California’s Third District. Tired of cluttering up his prose with parenthetical legal mumbo jumbo, Sacramento-based Justice Rodney Davis has taken to sending all the case citations and statutory references in his opinions to bottom-of-the-page footnotes. “It’s far more conducive to understanding what the opinion is actually saying than sandwiching in these arcane numerical references that break up the text and make it sound like you’re writing in a foreign language,” says Davis. Davis is the first California appellate court justice so far to eliminate all cites from the body of his opinions, but he’s likely not the last. As justices continue to strive for greater clarity as well as brevity, a few such fancy footnotes seem like an easy way to help readers. Already, several justices have begun to experiment with the style change. But other justices aren’t ready to force lawyers to bob their heads up and down searching for cites. Even California Supreme Court Justice Ming Chin, who generally dislikes footnotes, says there’s an element of attractiveness in the idea. But he says he wouldn’t be ready to make such a leap just yet. “Most of us learn to just skip over the citations anyway. We get used to them,” he jokes. And footnote citations complicate life for legal publishers. “It appears it makes the opinions more difficult to prepare for publication in the official reports,” says Edward Jessen, the reporter of decisions for the state’s appellate and supreme courts. The idea stems from a meeting of the state’s Appellate Justices Institute last fall. Bryan Garner, the widely respected editor of the seventh edition of Black’s Law Dictionary and the E.B. White of legal prose, was invited to speak to several dozen appellate justices and advocated the use of footnotes for citations. Davis wasn’t the only justice inspired by Garner’s argument. First District Justice Carol Corrigan said she went back to her chambers thinking she might give it a try. But she had second thoughts. “I’m just not convinced it’s an idea whose time has come,” Corrigan says, noting no other justices from her court have taken up the challenge. Corrigan maintains she’s a big believer of writing in plain English. But she said the real question is whether the citations really do interrupt the flow for the readers, especially when you consider that most readers are judges and lawyers. Davis says judges should also keep in mind lay people — in particular, litigants who want to know what the court has ruled and prefer to read it in plain English. And Davis isn’t alone. Fellow Third District Justice Daniel Kolkey says he’s experimented with putting some of the citations in his recent opinions in the footnotes, and he’s currently working on an opinion that sends all of them south. But Kolkey, who invited Garner to speak to the justices, says that the overall objective for all opinion writers should be clarity of expression. “There are times when there’s a reason to having the case citation in the body of the opinion. It can help demonstrate the weight of authority for a proposition of law that’s being expressed. In those cases, the author wouldn’t necessarily want the reader to look down to the bottom of the page,” he says. “Other times, the citations can act as a distraction to the flow of the opinion and there’s a virtue to placing the citations in the footnotes,” says Kolkey. Second District Justice Arthur Gilbert, who sits in Ventura, contemplated the footnote idea in recent months but has cooled to it. “It might look good to the lay reader. It looks less cluttered and I favor that very much on the one hand,” he says. But he also notes that most readers are lawyers, looking for a quick grasp of the opinion as well as for its proper legal context — so the citations can be of interest. “So to them, it may be easier to keep them in the body of the opinion.” The bottom line, he says, is that justices need to be pushing themselves to write in plain English and to take the time to boil down what a case is really about and what the court is saying about it. “When you look at the great legal writers, models like Cardozo and Holmes, it’s about writing in an active voice and keeping the sentences short,” he says. “It’s not just about where you put the cites.”

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