footnotes

Reader-Friendly Legal Documents Are Needed Now More Than Ever

The emergence of a “post-fact world” is a complex problem with multiple causes. And the fight against alternative facts must be fought on multiple fronts with a variety of tools. Part of the solution involves making primary sources more accessible to more people. Accessibility means not only making the documents available to the public, but writing them and formatting them in a way that promotes reading and comprehension. (The idea being that if more people can understand the primary source, they will be less likely to believe the misstatements spouted by biased outlets purporting to summarize the primary source.)

Ideally all three branches of government would commit to using plain language and good document design. But the law is complex and fulfilling such a commitment would be a challenge even for the well intentioned. And, at the present moment, it seems that many in our government are not well intentioned. 

Don’t Give Footnotes a Bad Name!

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!).

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.