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Joining Alaska, Delaware, Georgia, Kentucky,
Nevada, Michigan, Texas, and Wisconsin, the
Indiana Supreme Court has converted to the
system of putting all citations in footnotes.
These states are the ones where the highest
court has converted.
In many other states, some appellate judges
are doing it right but haven't yet converted the
highest court. For example, that's the situation
in Ohio, where many appellate judges
have converted, but the supreme court is still
stuck in the past.
Having a jumble of letters and numbers in the
middle of paragraphs destroys readability. I've
probably harped on this enough - it is Rule 13
in my Legal Writer book, Citations Go in
Footnotes.
But some judges
and lawyers still resist putting citations in
footnotes. The most common objection: "I
don't want to have to look down to see the
source of the authority." The answer: You
seldom do. Most citations refer to authority no
one questions. When the brief or memo is trying
to distinguish or argue between competing
authorities, those cases must be identified by
name and court in the text. But the letters and
numbers still go below. Another objection:
"Footnotes are distracting - I feel I have
to read them because they might explain the
text." Answer: Not a problem. When
citations are in footnotes, nothing else can be
there. The modern formula forbids
"talking" footnotes - if something is
important enough, it should be in the text.
One reason we used to put citations in the
text was that manual typewriters had a hard time
with footnotes, and it was easier to type them
in the text. But now our word processors have a
footnote key, and it's easy to drop your
citations to the foot of the page. (The old
typewriters also accounted for two other
mistakes that persist today: (1) underlining
cites, because there were no italics -
underlining is a signal to the printer to
italicize; and (2) Courier type, one of the
hardest to read, because typewriters required
each letter to have the same spacing.)
The Indiana Supreme Court is asking for
comments on the change. Whether you are in that
state or not, please write praising this change
to Supreme Court Administrator, 315 State House,
Indianapolis, IN 46204.
More Progress
In March, Christine Gregoire, the new
governor of Washington, issued an executive
order mandating the use of plain language:
"Using Plain Talk principles, the
announcements, publications and other documents
agencies send to the public will contain clear
and concise instructions and information.
Documents written in Plain Talk will include:
Clear language that is commonly used by the
intended audience:
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Only the information needed by the
recipient, presented in a logical sequence;
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Short sentences;
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Sentences, written in active voice, that
make it clear who is responsible for what;
and
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Layout and design that help the reader
understand the meaning on the first try.
This includes adequate white space, bulleted
lists, helpful headings and other proven
techniques."
Though the serial comma is missing from
the first sentence, the order makes sense.
One other anomaly is that part of the order
is couched in legalese, as in "Now,
therefore, I, Christine O. Gregoire. .
." and "In witness whereof, I have
hereunto set my hand and caused the
seal." But we take heart from any
plain-language victories, one step at a
time.
Dumbing Down?
At a recent seminar, one participant
asked if the plain-language techniques -
short sentences, active voice, no legalese -
wasn't "dumbing down" language.
No, it is just uncluttering it. Why make it
more difficult than necessary? Legal writing
is not always going to be perfectly
understandable to the non-law-trained
reader. But it should be easily readable for
lawyers and judges,
and many times for laypeople.
Remember that much of our writing -
letters to clients, contracts, notices,
product warnings - is directed to laypeople.
It is not "dumbing down" to make
it understandable for the target audience -
it may be legally necessary. And John
Grisham and Tom Clancy do well writing at
the seventh-grade level.
Readability
In each column, I list the two major
readability statistics - remember that you
can program Word to tell you these and more.
Statistics for this column: 15 words per
sentence, 6 percent passive voice. (Remember
the 1818 Rule - no more than an average of
18 words per sentence and 18 percent
passive-voice sentences.)
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