Writers tend to have opinions on footnotes. Some believe there should be virtually no footnotes in an appellate brief. Others use footnotes more frequently. There are certainly arguments to support either side. My rule of thumb is to avoid footnotes (especially substantive footnotes) but…everything in moderation. Even moderation.

Key Takeaways:

• Use footnotes sparingly. But I don’t condemn them altogether.
• The SCV had a recent opinion on judicial dissolution of an LLC. If you practice in this area of law, give this case a read. 

The Debate:

I was inspired to write this post after reading the latest SCV opinion. Justice Russell has a few footnotes throughout the opinion and I found myself paying attention to when he used them. For instance, the opinion elaborates on what evidence is disregarded on appeal and why in a footnote. It reminds us of the weight we give to the Circuit Court’s findings (and even potential findings). Justice Russell was explaining something substantive using a footnote, but it was to explain a larger point. Other writers might have gone to greater lengths to include it in the body of the brief, but I think it worked well.

Footnote Pros (pun intended):

This debate has a few well-known voices. For instance, Bryan Garner is a fan of putting all legal citations in footnotes to avoid disrupting your reader’s flow. Before anyone panics who doesn’t do this, this is certainly the minority view. But Garner has a point. Have you ever read legal writing that is filled with legalese and long string citations? It’s not enjoyable. When footnotes are used for all citations, the writer has to be very thoughtful about their paragraphs and their points. You can’t hide behind cases and parentheticals. So good writers can highlight their strengths with this approach, especially if they have established credibility.

Cons:

‘‘It’s like having to run downstairs to answer the doorbell during the first night of the honeymoon.” –John Barrymore, on footnotes

The downside of Garner’s approach, in my view, is that one must constantly scan to the bottom of the page to know what authority the author has to support their claim. As a lawyer, the legal citations are critical. I read sentences in the context of the case or rule cited. I personally find it distracting to need to constantly look for authority. I try to avoid footnotes as much as possible for that reason. Every once in awhile, however, they are helpful: for instance, for string citations with explanatory parentheticals or for non-substantive explanations that don’t neatly fit into your paragraph. I’m probably more of a moderate than an extremist.

For what it’s worth, AI suggests the following:

• Keep all core arguments in the body of the brief
• Use footnotes sparingly. Only use them for: (1) bibliographic citations that would disrupt flow; (2) peripheral material that is helpful but not essential; and (3) record citations when they become bulky.
• The fewer the footnotes, the more they matter.
• Don’t use footnotes to hide weak arguments.
• Keep footnote text clean and short.
• Consistency is key.

ChatGPT may have gotten a sense of my biases already from my prompt, and AI tends to give you the output it thinks that you want. But, hey, when you’re right, you’re right!

Anyone disagree?