When I'm invited to speak to a group of lawyers about effective brief-writing, I'm often asked, "Should I use footnotes?" My answer: "Yes, but sparingly."
Here's the problem.
Imagine you are orally arguing your case to a panel of appellate judges. Your presentation is smooth and orderly, and the judges appear to be following it and buying it. But suddenly, one of your co-counsel jumps up and interrupts - with a comment on some tangential aspect of the case. The judges lose your thread and instead think about the lawyer's comment. Co-counsel sits down, and now you must try to get the judges back on track thinking about your argument. Not good. Interruptions disrupt both your spiel and their thinking.
But that's exactly what you do to yourself when include a footnote in your brief. Think about it. You wrote, say, a three-page argument on a point. It's beautiful, flowing logically and persuasively to a conclusion. You'd like the judge to read it from beginning to end without thinking about her family, her lunch engagement, or her golf game. But once she sees that tiny number, you made her:
(1) Stop thinking about what you wrote,
(2) Look down,
(3) Find the footnote,
(4) Read the footnote,
(5) Mull over what you wrote in the footnote,
(6) Look back up to the text to find where she left off,
(7) Try to remember what the text is about, and
(8) Continue reading the text.
The spell is broken - and you're the one who broke it.
Since the footnote will cost you, you'll need a very good reason for including one. Sometimes you want to mention something worth mentioning in the brief, but not worth mentioning in the text, where it would break into the flow of your discussion. You may need to clarify some quirk in the record, or add a few case citations. OK, put it in a footnote. A footnote is a compromise: you mention the point, but off to the side, as it were.
The information will be there for the law clerk who is responsible for drafting the in-court memorandum and opinion. But the judge can ignore the footnotes. I want the judge to glance down at my first couple of footnotes, quickly see that they are really for the law clerk and not for the judge, and go back to reading my text. She then knows that she can ignore the rest of my footnotes, and just read the text straight through.
I don't put any arguments in a footnote. Arguments are for judges. Footnotes are for law clerks, not for judges. If the argument is significant enough to put in the brief, I create a new subsection in the text for it - even if it is short.
Also, it's better to put a footnote at the end of a section of your brief, rather than in the middle. If that doesn't fit, at least put it at the end of a paragraph. If the judge does look at it, she will have already read a complete thought in the text, so the interruption will be minimized.
When I consult on appeals, I sometimes review draft briefs that are loaded with footnotes. The lawyers think they are adding useful information by doing this, but they don't realize that they are also subtracting from what counts: the persuasive impact of the text. The goal is to win the appeal, so cut down the footnotes.
by M.A.T. Legal Director Myron Moskovitz