The Lowdown on Footnotes

“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!”

2 of 2: Resolved: Citations in Footnotes?

Order Point Made

Order Point Taken

Order Deal Struck