Monday, March 12, 2018
To footnote, or not?
In Making Your Case: The Art of Persuading Judges, Bryan Garner and the late Justice Scalia provided their opposing views on the use of footnotes in appellate briefs. Garner advocated for "putting all bibliographic matter . . . in footnotes," but cautioned against putting "any substantive text" or anything "that anyone should have to read" in footnotes. The late Justice Scalia disagreed, stating that the practice doesn't make briefs more readable, since "the careful lawyer wants to know, while reading long, what the authority is for what you say." So the reader will constantly be looking down to the footnotes to find the authorities used by the brief writer.
For the most part, I have agreed with Justice Scalia on this topic, and many of the judges who contributed to the third edition of Winning on Appeal expressed their dislike for footnotes. I generally viewed the footnote approach to be for the convenience of the writer and not the reader.
Last week, over at The Volokh Conspiracy, Eugene Volokh blogged on this very topic, quoting a district court opinion that stated,
The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.
Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."
Eugene's post sparked a little discussion on Twitter regarding footnotes in briefs. I saw at least two judges who disagreed with his conclusion, preferring footnotes in briefs. So what is the right answer? As in most questions involving appellate advocacy the right answer is to follow the conventions of your particular jurisdiction. Has the court (or have judges on the court) said/written/tweeted anything on the issue? If not, perhaps it is time to ask them! I appreciated the judges who weighed into the Twitter discussion, and I think that more interactions like that can lead to better briefs overall.