David J.S. Ziff, Strategic Citations: Beyond the Bluebook, ABA Litig. & Trial Practice Newsletter (Spring 2023)
Lawyers love thinking about writing. We love it so much that this issue of the Litigation and Trial Practice-Staff Council Committee Newsletter is devoted to writing tips. And for good reason. Words are our business, so we want to ensure that we’re using them as effectively as possible.
Often, however, when lawyers discuss writing, we ignore an important part of what we write. Sprinkled throughout our carefully crafted prose, legal writing includes other, uglier sentences—sentences with their own grammar of sorts, those little clumps of italicized case names, the reporter numbers and abbreviations, often with multiple parentheticals at the end. Legal writing includes citations.
Don’t worry, I’m not going to discuss the dreaded Bluebook, or whatever citation rules your jurisdiction has adopted. At this point in your career, your citation format is most likely good enough to avoid the ire of punctilious judges or law clerks.
But citation format is only the tip of the iceberg. More important, and perhaps less obvious, are the subtle choices of citation style and substance. Lawyers should be thinking strategically about their citation-related writing decisions, perhaps as much as their prose-related decisions. In that spirit, I offer four writing tips for your consideration: (1) Strategically Communicate Source-Related Information; (2) Focus on “Bad” Cases; (3) Consider the Moral Dimension of Precedent; and (4) Think More About Citation Style.