The Case for Footnotes

When writing legal briefs or court opinions, most lawyers and judges include citations to legal authority in the body of the text as opposed to footnotes. According to Bryan Garner, this convention is a holdover from the era of the typewriter. But despite the advent of word processors (which make footnoting a breeze), the majority of attorneys and judges have not embraced the proposition that they should subordinate legal citations in their writing. As least, not yet.

Although some practitioners and judges still argue in favor of inline citations, the pro-footnote crowd has stronger arguments and better rebuttals. (See, for example, Joseph Kimble’s piece in the Michigan Bar Journal.) Indeed, judges in several states have begun using footnotes in their opinions (e.g., Alaska, Delaware, Georgia, Louisiana, Michigan, Nevada, Ohio, Texas and Washington).

Attorneys in other states should start using footnotes whenever possible to help turn the tide. For example, practitioners in California could probably use footnotes now, even though the state’s appellate judges currently do not. The California Rules of Court allow practitioners to choose between following the California Style Manual or The Bluebook: A Uniform System of Citation. The California Style Manual is silent on the issue. Bluebook Rule B1.1 says that practitioners can put citations in footnotes “when permitted or required by local court rules.” I haven’t reviewed all 58 sets of local rules, but I reviewed the rules of the 12 most populous counties in the state and they are all silent on the topic, which I would argue means the practice is permitted in those counties.

Do you put legal citations in footnotes?

If you still need convincing, the example below illustrates just how onerous it is to read citation-laden text.