As you might know from my prior blog post on the topic, I think lawyers and judges should put citations in footnotes because it forces us to improve our writing and it makes court documents more accessible to lay readers.
This is not a topic that gets much attention, so imagine my surprise when I came across an article in the Recorder a couple of weeks ago entitled “Judge Scolds Plaintiffs Lawyers for Footnote Fetish.”
Here’s what happened: Plaintiffs’ counsel brought a class action in the Northern District of California. Over the summer, the judge issued an order in the case admonishing plaintiffs’ counsel for using “copious (and frankly excessive) footnotes.” A couple of months later the judge updated her standing order to include the following provision: “Footnotes are to be used sparingly and citations to textual matter shall not be contained in footnotes.” About a month after that, plaintiffs’ counsel filed their opposition to the defendant’s motion to dismiss. The 25-page opposition contained 76 footnotes, totaling 451 lines of text. In other words, the footnotes included a lot of substantive material—not just citations. The judge struck the opposition and ordered plaintiffs’ counsel to file a 25-page opposition brief containing no footnotes. (Plaintiffs’ counsel said they hadn’t seen the revised standing order.)
Unfortunately, I fear that many lawyers will take away the wrong lesson from this case. Some may (wrongly) conclude that they should avoid using footnotes altogether because judges view their use as a weasely attempt to circumvent the page limit.
So, before we can move forward with promoting the benefits of footnotes, we need to remove this stigma.
The root of the problem is that many courts still impose a page limit on briefs, as opposed to a word-court limit. A word-count limit is better because it cannot be manipulated like a page limit. Typeface, point size, line spacing, and margins all affect the length of the document but not the word count. A related problem is that many page-limit jurisdictions (including the Northern District of California) require double spacing of body text, but allow single spacing of footnotes. This means that using footnotes allows the writer to squeeze more text into the allotted pages. These rules incentivize lawyers to shove important facts and argument into footnotes simply to conserve space.
If more courts would adopt word-count limits, then lawyers would not be tempted to stuff their argument into footnotes. And until lawyers stop abusing footnotes, it will be hard to persuade courts that it’s actually preferable to put legal citations in footnotes.
So why don’t more courts make the switch from a page limit to a word-count limit? Is it because word-count limits seem harder to enforce? I don’t think that’s a valid argument. If the brief is digital (either because it was filed electronically, or because the court scanned it upon filing) then anyone with a computer can easily determine the document’s word count. Courts that do not scan paper filings could instead require the filer to certify the word count at the end of the document.
The real moral of this story is that you shouldn’t try to circumvent the rules (even antiquated rules like page limits) by abusing loopholes—that will only annoy the judge. And make sure to follow your judge’s standing order (especially when she revises it specifically to address your prior bad behavior!).