The Controversy Over Footnotes. Really? Yes.
Posted on January 25, 2012
Those who read and draft legal pleadings and briefs are familiar with the occasional use of footnotes to supplement the main narrative text. Footnotes are boring, right? No. The question of how you manage footnotes in an appellate brief is actually quite controversial in some circles. I know what you’re thinking:
What can possibly be controversial about footnotes?
Apparently quite a lot. Should footnotes be used at all? Some appellate court judges have announced opposition to the use of footnotes. At an appellate practice seminar I attended, Judge William Prior, Jr., of the Eleventh Circuit Court of Appeals stated very plainly that he dislikes the use of footnotes in appellate briefs. He repeated the refrain that other judges have stated, that if it’s important enough of a point to be in the brief put it in the main text, and if it’s not, leave it out altogether. Judge Richard Posner of the Seventh Circiuit Court of Appeals has expressed his view on the limited use of footnotes in the article, “Against Footnotes, 38 Court Review 24 (2001). Judges, as the readers of briefs we lawyers write, complain of the “head bobbing” required of shifting their gaze from the main text of the page to footnotes at the bottom. Perhaps there is merit in that complaint, but at least one preeminent legal writer has argued for extensive use of footnotes for a particular purpose.
In his book, “The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, Bryan Garner offers the following advice:
Put all your citations in footnotes, while saying in the text what authority you’re relying on. But ban substantive footnotes.
Garner contends that citations to authority in a brief break the flow of the narrative and weakens the connection between sentences. He believes this causes lawyers to repeat a part of previous sentences in a new sentence, making them longer and consequently make briefs much more difficult to read with full comprehension. Garner’s solution is to place all citations in footnotes. Acknowledging the problem that could cause of having the reader constantly shift gaze to the footnotes, Garner advises that lawyers using this technique should include in the sentence sufficient descriptive information regarding the cited authority that the reader need not check the footnote. In “The Winning Brief,” Garner proposes the following as an example of a sentence where an authority is noted but the full citation is placed in a footnote.
In 1803, in Marbury v. Madison, the Supreme Court held that it had the power of judicial review.
In a footnote, Garner would place the remaining citation to Marbury: 1 Cranch 137, 2 L. Ed 60 (1803). So what do you think? Do you like this approach? Garner has noted that it is controversial:
Of all the tips in this book, this one is the most controversial. It’s inclusion in the first edition resulted in a minor furor in which I was called a “Rasputin” who was misleading lawyers and judges into undermining the doctrine of precedent. The New York Times ran a front page article on the brouhaha, and soon after Judge Richard A. Posner debated me on the point in an exchange that deserves greater attention that it has gotten.
My contention is that Garner is half-right. I believe citations to authority do distract from reader comprehension of the argument a lawyer is trying to make in a brief, but I can’t agree that the answer is to place all citations to authority in footnotes. I’ll address my own thoughts on the “footnotes controversy” in another post on this blog.