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By Prof. Jeffrey M. Anderson

A lawyer is a professional writer, but a lawyer’s purpose is not self-expression. A lawyer speaks (and writes) for someone else, to achieve a certain outcome, in a system governed by rules upon rules upon rules. It is technical, detailed work. Its hallmarks are clarity and precision. The purpose of legal writing is not principally to stir the soul but to satisfy a skeptical mind. A lawyer hoping to persuade another lawyer or judge to accept some position must write in a way that answers obvious questions. Because good citations help answer obvious questions, they are important to good advocacy. And because the most commonly used rules of citation are easily accessible and easy to follow, deploying good citations is easier than you might think.

Good Citations Are Important to Good Advocacy

Lawyers – and especially the lawyers who become judges – are more skeptical than most audiences. Lawyers don’t take much of anything at face value, we parse words that ordinary people think are plain, and our ears are attuned to hedging, qualification, and rhetorical sleight of hand. If one sentence (or even one word) doesn’t sound quite right, we read it again – because we’re looking for a loophole (or maybe a trap). That’s not cynicism or paranoia; it’s just due diligence. Lawyers must have reasons for the things we say and write; we must prove everything, even the details. We do that through citations to legal authorities (for legal assertions) and evidence (for factual assertions). Indeed, courts often require that we provide citations to adequately present an issue for decision.[1]

The quality of the proof consists mostly in the sources cited. There are better and worse sources, more relevant and less relevant sources, binding and merely persuasive sources. Some sources prove a particular proposition better than others do; some sources have more weight than others in a particular forum. That is why lawyers must pay close attention to the sources we rely on. But the form of the citation matters, too, because it (1) helps the law-trained reader find the proof in the source, (2) shows the reader how the source proves the assertion, and (3) demonstrates the lawyer’s proficiency and care in communicating legal analysis and argument. Citation is not an afterthought; it is essential to good legal writing.

Good Citations Show the Law-Trained Reader Where to Find Proof for Specific Assertions of Law and Fact

Good citations help your reader – usually another lawyer or a judge – find the proof that supports your assertions. Your reader is a professional skeptic, so you want to show, not just tell. And you show your reader that what you’re saying is true, or at least reasonable, by pointing to sources that matter. In our business, the sources that matter are legal texts – constitutions, statutes, regulations, rules, cases – and evidentiary materials.

For every assertion of law, give an accurate, specific citation to a legal authority. That will satisfy your reader that (1) you have done some research to find the applicable legal rules, and (2) your description of legal rules conforms to the legal authorities that will control your case. Likewise, for every assertion of fact, give an accurate, specific citation to some evidentiary source. Don’t just say that the parties executed the contract; point the reader to the document. Don’t just say that the defendant was aware of the dangerous condition in the store; show the reader the passage of deposition testimony where the defendant admitted that she saw the wet floor. (Better yet, quote the critical language from the deposition, and give an accurate citation.)

You may write a paragraph that is entirely accurate in its description of legal rules and facts. But leave out the citations and your law-trained reader will ask, “Says who?” Give the reader an easy way to check your work. If the reader doesn’t actually check the work, the reader at least will see that there are sources to check – and you aren’t afraid of them. If the reader does check the work, then (presumably) the reader will confirm that your assertions are true. That will be good for your argument and good for your credibility as well.

Good Citations Can Advance Your Substantive Arguments

Not only do good citations show your reader where and how to confirm your legal and factual assertions, but they can also advance the substantive points of law and fact that are important to your analysis.

Citations are part and parcel of any substantive legal argument – because legal argument is all about authority. Lawyers do not analyze their clients’ problems as matters of first principles; rather, they find the settled rules and the similar (and dissimilar) precedents, and apply those rules and precedents to their clients’ problems. (That should give hope to new lawyers, who may lack deep knowledge of first principles, but have access to all the relevant rules and precedents.) Similarly, judges typically do not decide cases on blank slates; rather, they find applicable texts (constitutional provisions, statutes, regulations, or rules) and binding precedents applying those texts to make sense of a particular situation. Most of the time, lawyers and judges do not ask, “What is the best resolution of this issue?” but instead, “What does the relevant authority require?” As Professor Frederick Schauer explained, “[i]n other decision-making environments, authority may play some role, but first-order substantive considerations typically dominate. In law, however, authority is dominant, and only rarely do judges engage in the kind of all-things-considered decision-making that is so pervasive outside of the legal system.”[2]

This unusually dominant role of authority in legal reasoning means that objective legal analysis and persuasive legal argument both depend on properly identifying and describing the texts and precedents that govern a legal issue. If the goal of objective analysis is to predict how an issue will be decided if it ever appears in litigation, then the lawyer must understand – and communicate – the import of the authorities that bear on the issue in a particular court. And if the goal of advocacy is to persuade a judge to do something favorable to the client’s position, then the lawyer must explain to the judge that the favorable action is not only right but right (or at least permissible) under the relevant authorities.[3] It is not enough to present a logically coherent argument based on first principles of fairness; a lawyer must present a logically coherent argument that makes sense in light of the relevant texts and precedents.[4] That is why citations matter.

Most arguments, including legal arguments, present some kind of syllogism.[5] A syllogism starts with a major premise, a general principle that governs a category of circumstances. Then follows the minor premise, which shows how specific facts or circumstances “fit” (or do not “fit”) the general rule. And then comes the conclusion, which logically follows from the major premise and the minor premise. “If the major premise (the controlling rule) and the minor premise (the facts invoking that rule) are true . . . the conclusion follows inevitably.”[6]

The critical thing is that the major premise and the minor premise are true, and “you must establish that they’re true.”[7] In a legal argument, the major premise ordinarily is some legal rule (or collection of related rules). Lawyers prove the truth of the major premise by identifying legal authorities that establish the general rules – for example, constitutional provisions, statutes, cases, or (when all else fails) some kind of secondary authority. Because we are more skeptical than most ordinary folk, most lawyers instinctively doubt an unsupported assertion. How often have you read a case in which the court said that a party made some argument “without citation to authority?” The court almost certainly rejected that argument.[8] If you don’t cite a case (or a statute or at least some rule), the rest of us think you’re probably just making it up; if there were good authority supporting your position, we assume you would show your cards.

In the same way, lawyers must prove the truth of the minor premise. In a legal argument, the minor premise is an application of the legal rules to specific facts. Lawyers learn early in practice that the only facts that matter are the ones that we can prove with evidence. In written motions and briefs, lawyers prove facts by citing acceptable sources, usually witness testimony and written documents.

Because lawyers must prove that the premises of their arguments are true, and because the quality of the proof depends on the quality of the sources, citations are critical to the substantive legal arguments that lawyers make in memos, motions, oppositions, and briefs. The arguments are only as sound as the authorities you cite. That is why you learned in law school that you must provide a citation for every assertion of law or fact – to show the law-trained reader that your position is supported by legal authorities and evidence (or facts that could become evidence).

But providing citations is not enough; the citations must be correct in substance and in form. Correct citations convey useful information in a form that is easy to understand quickly. In other words, the form of the citation reflects the common language of lawyers who write – and read – legal analyses and arguments. It is a kind of shorthand that itself communicates important information about the nature and quality of the authorities that support legal and factual propositions.

Think about case citations: Every full case cite tells the reader (1) the name of the case, (2) the volume and first page of the reporter in which the case may be found, (3) the specific page that supports your proposition, (4) the court that decided the case, and (5) the year of the decision. All of that is critical information, both for locating the case and for determining its importance in the analysis or argument that you are presenting. Leave out any of those elements and suddenly the reader has more work to do – work that any reader expects the writer to have done. The same is true for statutory citations: Every full cite tells the reader (1) the code in which the statute may be found, (2) the volume of the code, and (3) the specific section (and subsection or other subdivision) that supports your analysis or argument. Leave out any of those elements and your reader will waste time and breath cursing your name rather than trying to understand your point. Make your legal analyses and arguments easier to understand by showing which authorities support your positions, in a form that any law-trained reader will recognize and understand.

If the point of legal writing is to make it easy for a law-trained reader to accept your analysis or argument, and if, as Nathaniel Hawthorne said, “[e]asy reading is damn hard writing,” then you will have to work hard at making your writing easy to read and understand. There’s no way around that. Good citations help make your legal analysis easier to understand by showing the reader (1) how to confirm your legal and factual assertions, (2) what kinds of authorities support your assertions, and (3) the ways in which those authorities relate to your case. But citations only do that if they are given in a form that is easily understood by the reader – in other words, if they are given in the shorthand language that most lawyers have learned.

Good Citations Help Establish Your Credibility as an Advocate

Not only are good citations critical to making sound, persuasive substantive arguments, but good citations also help establish your credibility as a diligent, professional, and reliable advocate.[9] Perhaps the first indicator of a lawyer’s ethos – his or her credibility as an advocate – is the lawyer’s compliance with applicable rules. That includes all kinds of rules – the rules of procedure, local court rules, the judge’s initial order, and even citation rules. Judges and other law-trained readers have certain expectations – the rules tell us what those are – and we demonstrate our respect for our readers by respecting their rules.[10] Failing to follow those rules suggests either a lack of competence or a lack of care, neither of which is a good look for a lawyer.

Of course, there is more to establishing credibility than just following rules. An advocate shows himself or herself to be a reliable source of information by identifying and describing the applicable legal rules thoroughly and accurately; by identifying all the facts that are material to the issue that the judge must decide; and by presenting a logically coherent application of legal rules to material facts.[11] Moreover, an advocate establishes credibility by avoiding overstatement; focusing on the specific issues that the judge must decide (not extraneous matters); and making necessary concessions. But following the rules comes first. Falter out of that gate, and you give the judge a reason not to trust you on these other (usually more difficult) matters.[12]

If you want the judge to trust you on the hard things, then show the judge that you are careful and reliable by getting the easy things right. Among other things, that means getting citations right. You can’t always have the better argument, but you can always produce a clean, technically proficient product. Doing that again and again will help build a reputation for competence and diligence, and that should be important to any lawyer.

Good Citation Is Easier Than You Think

You should be convinced by now that there are good reasons to think hard about the authorities you cite and to work hard at producing correct citations. But you remember from law school that you’re supposed to hate everything about The Bluebook and thus everything about citation.

The typical complaints about The Bluebook usually boil down to the fact that it is a collection of very specific, very technical rules that seem like a foreign language. But that describes all of law school, and most substantive law, too. Using The Bluebook is just a special application of ordinary lawyering; the task is not appreciably harder than the rest of the job. If you have ever had to learn some part of immigration law to solve a client’s problem, or if you have ever had to give tax advice, or if you have ever studied Medicare or Social Security regulations enough to answer a specific question, then you can learn The Bluebook enough to have at least a “conversational” understanding of good citation.

I don’t mean that mastering The Bluebook in its entirety is easy. I wouldn’t know; I’ve never tried. The Bluebook is now in its 21^st edition. The editors make minor changes regularly. The good news is that most of the aspects of citation that most lawyers need to know for most of the motions, oppositions, and briefs they write have remained fairly consistent. And most of those Bluebook rules (amply illustrated by the editors) are not hard to follow.

Where I depart from The Bluebook, I have specific reasons for doing so – reasons based on concerns for clarity, readability, and comprehension. Everything I write is for a reader, not a Bluebook editor. And the purpose of everything I write is to explain something, or argue something, that I want the reader to understand in one relatively painless reading. If a Bluebook rule does not advance the goals of clarity, readability, and comprehension, then it is a bad rule (for my purposes) and I choose not to follow it. That test leaves me applying Bluebook rules almost all the time.

Fortunately, applying Bluebook rules isn’t such a hard thing to do, for two reasons. First, the rules that apply in most situations for most lawyers are found in the first 59 pages of the book – the so-called Bluepages. Pages 61-226 provide additional information relating to basic rules and special rules for sources that may appear in law reviews, but a lawyer drafting a motion, opposition, or brief rarely needs to know the information contained in those pages. Know the Bluepages, and you will know almost everything you need to know to do your work. There is no reason for a lawyer to master everything in The Bluebook, and so it would almost certainly be a waste of time to try. Learn what you need to know. Most (if not all) of that information can be found in the first 59 pages.

Second, after law school, citation is always an open-book test. That means you can always find the answer to your question before finalizing the text. It also means that you have no excuse for answering the question wrong. If you don’t have a Bluebook, get one. If you have a Bluebook, use it.

As explained above, most of the rules that you need to know are contained in the Bluepages. But the index and the tables are useful as well. The index is very specific; if you have a question about a specific aspect of a citation, your first move should be to look for a reference in the index. Suppose you weren’t sure whether you had used the signal “see generally” correctly, and you wanted to know whether you should revise the citation. The index has an entry for “signals” – with 19 separate sub-entries. But the index also has separate entries for “see,” “see also,” “see generally,” and “see, e.g.” With all the information provided there, you will almost certainly be able to find an answer to your question and relatively quickly. For all its faults, The Bluebook has a useful index. Use it.

The tables are helpful, too. For any case citation, the tables provide abbreviations for party names, reporters, court names, and states. You don’t have to memorize those abbreviations; the tables keep them for you. Go ahead and tab tables T1 (United States Jurisdictions), T6 (Common Words in Case Names, Institutional Author Names, and Periodical Titles), T7 (Court Names), and T10 (Geographical Terms) – because you will need the information contained in those tables most frequently. The more you cite certain authorities, the more you will remember. But you won’t always be familiar with the names of sources available in other jurisdictions, and the tables will answer those questions for you.

Read through the Bluepages, skim over the index, and skim through the tables. Know what’s available to you. And then use those parts of The Bluebook as you are drafting (and revising) any motion, opposition, or brief you write. A little investment will produce a return. You will remember more of the rules that you need to use most frequently, and you will work more efficiently while improving the quality and professionalism of your written work.

Endnotes

[1] Fed. R. App. P. 28(a)(8) requires that a principal brief in a federal appeal must include an argument that contains the party’s “contentions and the reasons for them, with citations to the authorities and parts of the record on which the [party] relies.” (Emphasis added). Failure to provide the required citations may be reason enough for the court of appeals to disregard an issue or argument. See Sapuppo v. Allstate Floridian Ins. Co., 739 F. 3d 678, 681-82 (11^th Cir. 2014); United States v. Cuchet, 197 F. 3d 1318, 1321 n.6 (11^th Cir. 1999); Continental Tech. Servs., Inc. v. Rockwell Int’l Corp., 927 F. 2d 1198, 1199 (11^th Cir. 1991) (per curiam); Ordower v. Feldman, 826 F. 2d 1569, 1576 (7^th Cir. 1987). In the same way, Ala. R. App. P. 28(a)(10) requires that a principal brief must contain an argument setting forth “the contentions of the [party] with respect to the issues presented, and the reasons therefore, with citations to the cases, statutes, other authorities, and parts of the record relief on.” And Ala. R. App. P. 21, which governs mandamus petitions, requires a petitioner to state “the reasons why the writ should issue, with citations to the authorities and the statutes relied on.” An Alabama appellate court may affirm a judgment, or deny requested relief, where the party seeking reversal or other relief fails to provide necessary citations to authority. See Ex parte Showers, 812 So. 2d 277, 281 (Ala. 2001); Connerly v. Connerly, 523 So. 2d 461, 462 (Ala. Civ. App. 1988).

[2] Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 67 (2009) (emphasis added).

[3] See id. at 66 (“The good lawyer will encourage the judge to see the substantive justice of his client’s position, but he relies on the authority of rules and precedents as a way of saying to the judge that she should rule in his client’s favor even if she disagrees what is the right substantive outcome.”).

[4] See Michael D. Murray & Christy H. DeSanctis, Legal Writing and Analysis 281 (3d ed. 2021) (“That authorities support your legal analysis and conclusions is of utmost importance to a legal audience.”).

[5] See Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 41 (2008).

[6] Id. at 42.

[7] Id. at 41-42.

[8] See Butts v. DGCP Warden, 850 F. 3d 1201, 1231 n.29 (11^th Cir. 2017); United States v. Siegel, 153 F. 3d 1256, 1263 (11^th Cir. 1998); Henderson v. U.S. Fid. & Guar. Co., 620 F. 2d 530, 534 (5^th Cir. 1980); Fitch v. Unum Life Ins. Co. of Am., 913 F. Supp. 2d 1253, 1262 (N.D. Ala. 2012); Ex parte Abrams, 3 So. 3d 819, 824 (Ala. 2008). Sometimes higher courts say the same thing about assertions in lower courts’ opinions. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, (1974) (rejecting the position stated by a district court that “[i]n recent years the Supreme Court has greatly expanded the concept of standing” and observing that the district court made that characterization “without citation to authority”) (quotations omitted).

[9] See Bryan A. Garner, The Redbook: A Manual on Legal Style 169 (4^th ed. 2018); Michael D. Murray & Christy H. DeSanctis, Legal Writing and Analysis 281 (3d ed. 2021) (“If you cite [authorities] correctly, no one will think twice about your competency. Incorrect citations, however, can cause significant harm . . . .”).

[10] The Eleventh Circuit, for example, has adopted a court rule requiring that citations to authority conform to the rules set forth in The Bluebook or the Association of Legal Writing Directors’ Guide to Legal Citation. See 11^th Cir. R. 28-1(k). The Federal Circuit has a similar rule. See Fed. Cir. R. IOP 11(1) (stating that “[t]he latest edition of the ‘Bluebook’ (A Uniform System of Citation) will ordinarily be followed”).

[11] See Scalia & Garner, supra note __, at 123 (“Persuasive briefing induces the court to draw favorable conclusions from accurate descriptions of your authorities. The impression you want to make on the court – that you’re knowledgeable and even expert – will be compromised by any misdescription that opposing counsel brings to the court’s attention.”).

[12] See Scalia & Garner, supra note __ at 124 (“Remember the evidentiary maxim, which pretty well describes the way people (including judges) generally react to intentional or even careless distortion: falsus in uno, falsus in omnibus. False in one respect, false in all.”).

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[1] Fed. R. App. P. 28(a)(8) requires that a principal brief in a federal appeal must include an argument that contains the party’s “contentions and the reasons for them, with citations to the authorities and parts of the record on which the [party] relies.” (Emphasis added). Failure to provide the required citations may be reason enough for the court of appeals to disregard an issue or argument. See Sapuppo v. Allstate Floridian Ins. Co., 739 F. 3d 678, 681-82 (11^th Cir. 2014); United States v. Cuchet, 197 F. 3d 1318, 1321 n.6 (11^th Cir. 1999); Continental Tech. Servs., Inc. v. Rockwell Int’l Corp., 927 F. 2d 1198, 1199 (11^th Cir. 1991) (per curiam); Ordower v. Feldman, 826 F. 2d 1569, 1576 (7^th Cir. 1987). In the same way, Ala. R. App. P. 28(a)(10) requires that a principal brief must contain an argument setting forth “the contentions of the [party] with respect to the issues presented, and the reasons therefore, with citations to the cases, statutes, other authorities, and parts of the record relief on.” And Ala. R. App. P. 21, which governs mandamus petitions, requires a petitioner to state “the reasons why the writ should issue, with citations to the authorities and the statutes relied on.” An Alabama appellate court may affirm a judgment, or deny requested relief, where the party seeking reversal or other relief fails to provide necessary citations to authority. See Ex parte Showers, 812 So. 2d 277, 281 (Ala. 2001); Connerly v. Connerly, 523 So. 2d 461, 462 (Ala. Civ. App. 1988).

[1] Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning 67 (2009) (emphasis added).

[1] See id. at 66 (“The good lawyer will encourage the judge to see the substantive justice of his client’s position, but he relies on the authority of rules and precedents as a way of saying to the judge that she should rule in his client’s favor even if she disagrees what is the right substantive outcome.”).

[1] See Michael D. Murray & Christy H. DeSanctis, Legal Writing and Analysis 281 (3d ed. 2021) (“That authorities support your legal analysis and conclusions is of utmost importance to a legal audience.”).

[1] See Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 41 (2008).

[1] Id. at 42.

[1] Id. at 41-42.

[1] See Butts v. DGCP Warden, 850 F. 3d 1201, 1231 n.29 (11^th Cir. 2017); United States v. Siegel, 153 F. 3d 1256, 1263 (11^th Cir. 1998); Henderson v. U.S. Fid. & Guar. Co., 620 F. 2d 530, 534 (5^th Cir. 1980); Fitch v. Unum Life Ins. Co. of Am., 913 F. Supp. 2d 1253, 1262 (N.D. Ala. 2012); Ex parte Abrams, 3 So. 3d 819, 824 (Ala. 2008). Sometimes higher courts say the same thing about assertions in lower courts’ opinions. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, (1974) (rejecting the position stated by a district court that “[i]n recent years the Supreme Court has greatly expanded the concept of standing” and observing that the district court made that characterization “without citation to authority”) (quotations omitted).

[1] See Bryan A. Garner, The Redbook: A Manual on Legal Style 169 (4^th ed. 2018); Michael D. Murray & Christy H. DeSanctis, Legal Writing and Analysis 281 (3d ed. 2021) (“If you cite [authorities] correctly, no one will think twice about your competency. Incorrect citations, however, can cause significant harm . . . .”).

[1] The Eleventh Circuit, for example, has adopted a court rule requiring that citations to authority conform to the rules set forth in The Bluebook or the Association of Legal Writing Directors’ Guide to Legal Citation. See 11^th Cir. R. 28-1(k). The Federal Circuit has a similar rule. See Fed. Cir. R. IOP 11(1) (stating that “[t]he latest edition of the ‘Bluebook’ (A Uniform System of Citation) will ordinarily be followed”).

[1] See Scalia & Garner, supra note __, at 123 (“Persuasive briefing induces the court to draw favorable conclusions from accurate descriptions of your authorities. The impression you want to make on the court – that you’re knowledgeable and even expert – will be compromised by any misdescription that opposing counsel brings to the court’s attention.”).

[1] See Scalia & Garner, supra note __ at 124 (“Remember the evidentiary maxim, which pretty well describes the way people (including judges) generally react to intentional or even careless distortion: falsus in uno, falsus in omnibus. False in one respect, false in all.”).

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