“Don’t look back, something might be gaining on you.”
A couple of dangerous words legal brief writers use for looking back are “id.” and “supra.” Dangerous because what is usually gaining from one direction is a limit on words or pages (a word count under U.S. Supreme Court rules or a page limit under many appellate court rules) and gaining from the other is the filing deadline. A natural reaction might be a mad dash to chop sentences, paragraphs, and whole sections to squeeze the brief in under the limit and on time.
Here’s how this might catch up and bite you at the end of briefing, undermining your argument with inaccurate subsequent references. Given the type of legal printing Cockle Legal Briefs does every day for attorneys and pro se petitioners, I will use a U.S. Supreme Court Petition for Writ of Certiorari or Brief in Opposition as an example:
You had oodles of time to carefully construct an argument, with ample authorities scattered through several sections of text and footnotes, or maybe you pasted in parts of the lower court brief. You use some authorities repeatedly, for differing purposes.
So on second and third and eighth reference, you use id. or supra, depending on the context. “Id.” when referring to the very last thing cited, and “supra” when the authority was somewhere farther back. (“Ibid.” is an academic version of “id.” and isn’t even mentioned in the The Bluebook.)
Or you want to quickly remind the court of a whole chunk of earlier discussion, maybe a whole subsection or a piece of one, and use “supra” with a section heading or page range to indicate that.
So far, no problem. But then you run a word tally on the countable text under the Supreme Court’s rules (9000 words, in this example, see S. Ct. R. 33.1(d)), you fight back panic, and you realize you have to cut or tighten text. Or you have the sound strategic thought that fewer issues are better the higher the case goes, so you wipe out a Question Presented item or three, along with the corresponding Argument sections.
The clock is ticking, Cockle Legal Briefs needs your draft for typesetting, and you hustle the changes through. Or maybe an assistant less familiar with the original drafting hustles them through.
Maybe you spot it after you send the draft, or maybe Cockle’s proofreaders raise questions on the proof. Maybe it is glaring, or maybe it takes careful reading. But it comes out that some of those references to earlier citations—maybe many of them—no longer match up. You choke back some office-inappropriate words.
With little time left, you have to go back through the brief and reconstruct just what all those supras and ids actually refer back to. A “supra” harkens back to a section on the cutting room floor. A string of “id. at” cites makes no sense because you dropped in some new citations betwixt there and here and cut some others, garbling the sequence. Citations in footnotes say “supra note 35” for the original citation, but cuts or inserts have moved that first reference to an earlier or later footnote, so note 35 has nothing to do with the referenced authority.
I worked on preparing a Supreme Court petition for printing recently that said, in footnote 30, “supra note 30.” We had to put the question to the attorney on the proof sent the afternoon of one day, with corrections (and likely wholesale reconsideration of the brief’s many other apparently off-track backward references) needed the next morning in order to meet the court’s filing deadline. Somebody’s plans for the evening just became tentative, at least.
Well, there are some easy ways to avoid this sort of “aackk!” moment and ensuing relationship damage:
First, avoid “supra” in the text altogether. Instead a second reference to a case can be to one of the party names, with a shortened pinpoint cite, if appropriate. (E.g., Flintstone, 1 U.S. at 3.) The short form implies that the full citation was set out earlier, so “supra” is redundant. For a frequently used statute, include a short form in a parenthetical after the first citation. (E.g., (“Bedrock Act”).)
This method of using short-form second references makes the snippet of text independent and shiftable to any other spot in the brief after the first reference.
And the text reads more fluidly: “The circuit questioned in Guess whether the rear-pocket clause in the Blue-Jeans Act applies to cut-offs, then flatly confirmed it does not when squarely faced with the issue in SpongeBob.” All judges and attorneys should know these authorities were previously cited, and they know to look in the Table of Authorities for the first reference and full citation.
You do have to be wary when a shift moves the citation ahead of what had been the full first reference. When Cockle document analysts fill in page numbers in the Table of Authorities, we often see a short-form before a full citation—maybe no full citation every shows up—and make a note on the proof about a need for the full citation.
Second, in footnotes, there is never a reason to point the court to the first footnote citing the authority. You can use short-form case or statute references in footnotes as well as in text. Or, if you really want to toss in a Latin word, a simple supra after the short name signals a second reference, and the table of authorities will list the page where the first reference appeared.
Third, it is fine to use “id.” or “id. at 333” for pinpoint citation to the immediately previous authority. But be careful about letting that id. string go on for more than a few paragraphs without a short-form reference to clarify that the discussion still focuses on the same authority. And if any other authority of any type falls in the middle of the id. string, use a short form to clearly return the discussion to the original authority.
The Blue Book points out that citations in explanatory parentheticals are ignored when using “id.” and “id.” shouldn’t be used to refer to a citation that was part of a string of two or more, because its use in either situation would raise confusion about the intended reference.
One customer’s brief was quoting and discussing varying parts of a case, but then mentioned a statute, and followed that by a simple “id.” Was the authority for this latest bit the case or the statute? Not clear. Murking it up more was that even after a new heading, the citations continued to be simply “id.” Then real confusion arose from an “id. at 150” citation that could not have referred to the last cited case because that case started at page 315. My best guess was that sections or blocks of text were shifted around, so we asked the attorney to clarify. That might have been easy to do, or it might have led to an expenses item in the attorney’s bill for “midnight oil.”
Fourth, expect the unexpected. Get your brief draft to Cockle a few days ahead of deadline, so you have time to deal with whatever questions our document analysts and proofreaders might raise beyond normal finishing touches. Cockle Legal Briefs is set up to very quickly process and print a brief with little time before the Supreme Court’s filing date. But attorneys pushing deadlines may not anticipate the time needed for reviewing proofs and making corrections in the few hours before printing has to begin, let alone foresee a need to rethink Latinized subsequent references.
We hope these suggestions help you dodge unnecessary briefing problems arising infra.