“Judges are not like pigs, hunting for truffles buried in briefs.”
Footnote-averse judges love to cite that condemnation from United States v. Dunkel. Others quote Noël Coward:
“Having to read a footnote resembles having to go downstairs to answer the door while in the midst of making love.”
Are your footnotes worth the hunt, let alone a trip downstairs?
Footnotes that Help
- String cites, when appropriate
- Fifty-state surveys or surveys of appellate courts, when appropriate
- Footnotes used “to supplement or authenticate statements in the brief” (Third Circuit Judge Ruggero Aldisert)
Footnotes that Hurt
- Jabs and stabs at your opponent
- Tangential issues that will not affect the court’s decision
- “Demonstrations by the author of the research he has done (which, unfortunately, has proven unnecessary) or his erudition” (Federal Circuit Judge Dan Friedman)
- Any substantive footnote that runs longer than one or two paragraphs
- More than five substantive footnotes in a single document
Considering adding a footnote?
When in doubt, don’t. As Ohio judge Mark P. Painter warns,
“If you make your document look like a law review article, it will be just as unreadable!”
