A few weeks ago at the ICLE Litigation Advisory Board
meeting, Judge Lawson said he returned a brief to a party, requiring that the
citations be moved from the footnotes to the body of the brief. He not only prefers
it that way, he has formalized his preference in his Practice
Guidelines:
All briefs must comply with Eastern
District of Michigan Local Rule 5.1 and , and must contain citation to appropriate
authorities within the text of the brief (not in footnotes) …. In addition,
briefs must contain a concise statement of facts supported by references to the
record. Footnotes are discouraged, but if they are utilized they must be
printed in the same font size as the text, which may be no smaller than 10-1/2
characters per inch (non-proportional) or 14 point (proportional). Use of
footnotes is discouraged.Local Rule 7.1
I practically cheered at Judge Lawson’s position on
footnotes. Most of the time footnotes just irritate me. They disrupt the flow
of reading and interfere with comprehension. When reading something in print, looking
down to the footnote makes me lose my place in the text. In an electronic document
with links, there is the jumping back and forth between the links. If there are
no links, there is a lot of scrolling back and forth. Sometimes the footnotes are
little waste-of-time pin cites, and sometimes they are half a page of text. In
either case, by the time I travel back to my original place, I have to reread a
little to get reoriented.
There are legal writing footnote advocates. They say things
like citations are hard to read and putting citations in footnotes allows you
to use string cites, which irritate judges when they interrupt the text.
Hard to read? Cites are meaningful for all lawyers, but have
you talked to an attorney who practices no-fault or probate and estate
planning? Four little numbers like 3107 or 7703 invoke a wealth of information
for those attorneys. Don’t make them hunt for those four numbers in the
footnotes for the context of the discussion in the text.
And, if string cites in the text irritate the judge, why
would they be less irritating in the footnote? If string citations are
irritating anywhere, you should reconsider their true value and perhaps not use
them at all.
So if you are considering the pros and cons of using
footnotes in your brief, consider your audience. I would hate for you to get in
trouble with the judge.