Don’t use footnotes for substantive comments

The last two Tuesday posts have been about moving all citations to footnotes. This post addresses a closely-related issue: eliminating substantive footnotes, which are footnotes containing substantive comments of any type.

Substantive footnotes distract the reader. The judge or law clerk reading your brief has to decide, each time he or she comes across a footnote, whether to stop reading the main text of your argument and pursue some issue that you (apparently) wanted them to read, but also (apparently) didn’t think was important enough to put into the text. This forces the reader to make multiple decisions about what path to take in reading your brief. Are all of your footnotes really so brilliant that you want to risk having your judicial reader say, “Well, okay, I’ll take a look”—and then make a judgment about your respect for his or her time and intelligence as a result of what you decided to put into that footnote?

Ask yourself why substantive footnotes exist at all. Is the thing that you are saying important, or not? If it is, why isn’t it in the text? And if it isn’t, why is it in the brief? What ends up in substantive footnotes is usually some bit of text that the writer can’t bear to part with, but can’t find a good place for in the text. So the writer finds a sentence that seems reasonably relevant to whatever that bit of text is about, adds a footnote, and dumps the text there.

That’s bad drafting.

Every thought in your brief, and every sentence supporting every thought, must earn its right to be there by doing critical work in advancing your argument. That doesn’t leave any room for substantive footnotes. Essential thoughts supported by crucial sentences mustn’t be in a footnote—they belong in the text. A thought or sentence that you can’t find any place for in your text probably isn’t essential or crucial after all. Cut it, or rework it, or go back and think about it until you understand it well enough to know what to do with it and where it fits. Because if you can’t figure it out, the last thing that you should do is shove it into your brief in the hopes that someone else will do it for you.

If you like the idea of moving citations to footnotes to make your text more readable, you should also eliminate substantive footnotes. Footnotes that might point to a citation and might point to a substantive comment are just as distracting as in-text citations. But if you prefer to keep in-text citations, you still can (and I think you should) eliminate substantive footnotes.

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  1. I’ve used substantive footnotes before. I usually relegate them to things that would require an em dash in the text but are too lengthy to fit well. A good example of this is a situation where I had to do some math about an oil and gas issue that was relevant to the case, but only the solution was relevant. There was a discrepancy of a few decimal places of royalty interest, which seems small out of the proper context, so I used a little footnote math to explain how the interest at issue was almost double the average royalty interest in the lease.

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