The Footnote Controversy … My Point of View.
Posted on February 8, 2012
This is a follow-up to my prior post about the controversy among appellate judges and some appellate attorneys regarding the proper use of footnotes. I’ll go ahead and admit that early in my legal career I committed the cardinal sin of editing a brief for a page length limitation by simply cutting and pasting paragraphs from the argument and placing them in footnotes (where the text is single-spaced instead of double-spaced). If that is the absolute worst use of footnotes, what follow is my description of the proper use of footnotes.
While some judges state they don’t want any footnotes in a brief, and other appellate attorneys may want to place all citations to authority in footnotes to maintain a clean narrative text, I believe a middle-ground approach is best.
Footnotes are important in brief writing and can aid a brief greatly if used correctly. I use footnotes for two purposes. The first purpose is to maintain a smooth flow of ideas for the reader of the brief. If there is a need to provide a string citations (three or more cases or other authority) that would create a significant interruption in the narrative text of the argument, I will place the first citation in the main text and place the remaining citations in a footnote. This approach provides legal authority in the main text conveniently following the statement of law, yet prevents the string of citations placed in the footnote from creating too great an interruption in the flow of the reader. Of course, the citations are available in the footnote if needed by the appellate court.
The second purpose of a footnote is to provide background information that while not critical to the ideas expressed in the main narrative, may be helpful to fully flesh out a thought expressed in the narrative. Perhaps a reference may be made in a footnote reminding a reader of a fact in the record, or a reference of how one appellate court opinion relates to another. The circumstances will widely vary. In brief that I wrote last year, I made the argument that the positions taken by the appellee improperly placed my client in a “Catch 22.” The analogy was a powerful one, but only if the reader knew the meaning of the term. While persons in their fifties or older are likely to be familiar with the movie and novel on which it is based, and while the term has gained somewhat of a hold in the public consciousness, I feared that younger judges or law clerks may not be aware of the meaning and thus of my argument. So, I added a footnote briefly describing Joseph Heller‘s 1961 novel on the insanity of war.
Was my footnote needed? I thought so. I believed my reference to “Catch 22,” was a powerful analogy that revealed the trick being used by the appellee to try and box in my client to an untenable position, and feared the analogy would fail as to certain younger readers. In that instance, I thought a footnote was the proper place for a few explanatory sentences of background information.
Consider the circumstances when you use footnotes when writing briefs and why you do so. Leave a comment and let me know any additional reasons for using a footnote.