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Finessing Footnotes in Legal Briefs

“Judges are not like pigs, hunting for truffles buried in briefs.” Footnote-averse judges love to cite that condemnation from United States v. Dunkel. Others quote Noel Coward on the subject: “Having to read a footnote resembles having to go downstairs to answer the door while in the midst of making love.”

In practice, though, many great lawyers do use footnotes, just not in the same way other lawyers do. As the late Justice Antonin Scalia has noted, “The Solicitor General of the United States, after all, is a highly skilled and experienced advocate, and the briefs of that office almost always contain substantive footnotes.” So where to draw the line?

When Not to Use Footnotes

To begin with, I suggest that you avoid using footnotes for any of these three reasons:

  1. To stay within word or page limits. Judge Roger Miner: “We are well aware of the efforts to increase the number of words in the brief by extensive footnoting. We deplore such efforts. The small print of footnotes doesn’t fool anyone.”
  2. To avoid seeing your research go to waste. Judge Dan Friedman: Avoid using footnotes for “[d]emonstrations by the author of the research he has done (which, unfortunately, has proven unnecessary) or his erudition.”
  3. To take a potshot at the other side. Judge Ruggero Aldisert: “I strongly discourage the use of footnotes for the making of remarks and asides, in the manner of a character in a play sharing a private joke with the audience. These marginal comments, often piddling objections to minor points in the opponent’s brief or the lower court’s opinion, add little to and subtract much from the impact of your brief.”

When You Can Use Footnotes

That said, feel free to use footnotes for any of these four reasons:

  1. To show widespread adoption of a principle. Andy Frey in Caskill Litigation Trust v. Park Place Entertainment strengthened his argument with a footnote that collected several federal cases in which his position had prevailed: “Courts in other States agree.”
  2. To buttress a point in the text. Steven Shapiro and the ACLU in Wilson v. Layne used a footnote to discuss a related point in a case about a media “ride along” with the police: “We are also aware of two cases where juries returned verdicts against police officers for unreasonable searches due to the presence of the media during the search.”
  3. To distinguish authorities not deemed worthy of discussing in the text. Mary Jo White in Trump v. O’Brien, a 2006 defamation suit against Donald Trump, gave some of Trump’s cited cases short shrift by relegating them to footnote-land: “The cases Trump cites in support of his claimed recovery of attorneys’ fees as mitigation damages provide no support.”
  4. To preempt likely counterarguments. Ted Olson in California v. GM, a case about global warming, used a footnote to preempt the Attorney General from raising a potential counterargument: “The Attorney General may argue that CARB certifications do not provide a defense under section 3482 because carbon dioxide is not one of the vehicular emissions currently regulated by CARB.  Not only is this claim unavailing . . . it underscores the preemption arguments advanced in Section IV. California cannot seek to regulate through the guise of a common-law tort suit that which it cannot regulate through appropriate administrative channels.”

Remember, though, as former Ohio Judge Mark Painter once said, “If you make your document look like a law review article, it will be just as unreadable!”