FROM THE ALABAMA LAWYER - Mixed Signals

Introductory signals, according to The Bluebook, help legal writers “organiz[e] authorities and show how authorities support or relate to a proposition given in the text.” In a perfect world, The Bluebook would be easy to follow, all lawyers would use it uniformly, and there would always be a case on point. But the practice of law is rarely perfect.

Consider The Bluebook. Generations of lawyers use signals differently because the 21 editions of The Bluebook have given ever-changing direction. For example, one change affecting many lawyers was the Sixteenth Edition’s alteration of the “no signal.” The Bluebook historically stated that no signal is required where the cited authority directly supports the in-text proposition. But the Sixteenth Edition of The Bluebook took that clear rule and muddied it. Instead of directing writers to use no signal where the cited authority explicitly states the proposition, the Sixteenth Edition stated that writers could use no signal only where the cited source was named in the preceding sentence. This ill-advised change lasted only four years; it was rescinded in the Seventeenth Edition. But the damage was done.

Understanding and using signals accurately may seem trivially bookish, but signals play a critical role in legal writing – for good or for ill. Good signals lead a reader to the best and most important cases, save the reader’s time, answer latent objections, and show how the issue being discussed fits into the sweep of cases around the country and through time. Bad signals, on the other hand, leave the reader chasing down trivialities or, at worst, feeling misled. Stating that a citation unequivocally supports a proposition versus a citation that logically follows from the stated proposition can make or break a case or a lawyer’s reputation. Using signals correctly is key for legal writing. According to The Bluebook, there are four types[1] of introductory signals: (1) signals that indicate support; (2) a signal that indicates a useful comparison; (3) signals that indicate contradiction; and (4) signals that indicate background material. Examples of commonly used introductory signals from each category are outlined below.

Signals have fallen out of fashion with some writers, but the practice of omitting signals is risky. Using no signal is the strongest signal of all. Readers may judge harshly if they come across a citation that does not support the proposition they cite it for, yet the writer does not favor the reader with a signal to explain what they meant. That reader might conclude that the writer lacks either candor or understanding of the law. Moreover, because signals help a reader understand why a case matters, omitting signals puts that burden back on the skeptical and busy reader.

Of course, there is a ditch on the other side of the road as well. Strive for helpful and accurate signals, not more signals. Signals – and the parentheticals that must often accompany them – can make briefs long and your paragraphs unwieldy. A brief full of “cf,” “but see,” and “see generally” signals probably has too many cites in the first place. Just as a brief with good signals tells the reader the importance of the cited cases, the practice of adding accurate signals should help a writer focus on the most important points.

Supporting Signals

No Signal: No signal is the strongest signal of all. The use of no signal indicates to the reader that the citation explicitly supports the cited text. Using no signal is most often appropriate when a brief quotes the case or its holding.

See: Use “see” when the cited authority clearly supports the proposition, but the proposition is not directly stated by the cited authority. Stated differently, use “see” when the reader must make an inferential step between the cited authority and the proposition it supports.

E.g.: The signal “e.g.” is short for the Latin phrase exampli gratia, which means “for example.” Use this signal if a host of authority directly supports the proposition but citations to all of them would not be helpful or necessary. Although not strictly required by The Bluebook, a good rule is to explain the relevance of the cases in a parenthetical.

See also: “See also” directs the reader to authorities that provide additional support for a proposition when citations to authorities that directly support the proposition have already been discussed. The Bluebook encourages the use of a parenthetical to augment the reader’s understanding of the additional source material.

Cf.: “Cf.” is the least used signal. Use it when the authority cited supports a different, but corresponding, proposition from the one set forth in the sentence preceding the citation. The signal literally means “compare,” but most readers will not know that fact. Because the signal is rare and because the citation’s relevance may not be clear without an explanation, a parenthetical is all but mandatory (even if The Bluebook merely “strongly” recommends one).

Signal That Suggests a Useful Comparison

Compare [and] with [and]: This signal offers helpful support for, or illustrates the differences between, two propositions. Again, parenthetical explanations following each citation are “strongly recommended.”

Signals That Indicate Contradiction

But see: The opposite of “see,” this citation is used when the cited source supports a proposition contrary to the main proposition.

But cf.: The source indirectly contradicts your position by analogy. The Bluebook recommends the use of a parenthetical to explain the source’s relevance.

Signals for Background Information

See generally: The cited source contains helpful background material. Although The Bluebook merely encourages a parenthetical following “see generally,” readers will benefit from the background material. In truth, this signal tells a reader that the individual cases are not particularly important, and if the cases are not worth describing in a parenthetical, they may not be worth citing in the first place.

Endnote

[1] The Bluebook does include a fifth category for signals as verbs. However, this category merely discusses that signals may be used in footnotes as verbs in textual sentence. This category does not introduce any new signals.

Republished with permission. This article, "FROM THE ALABAMA LAWYER - Mixed Signals," was published by Alabama State Bar on July 21, 2022.