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Don’t Make Me Go Downstairs for the Footnotes

By Cindy M. Huss posted 07-13-2015 10:55

  

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.

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07-20-2015 12:15

hands down - best use of footnotes in non-legal writing I've ever seen is by Mary Roach...they are laugh out loud funny and yet you can "ignore them" and still get the point she is making.

07-16-2015 08:54

I 100% agree with respect to legal writing. But for fiction (most notably, Infinite Jest), I think footnotes and endnotes have their place. David Foster Wallace explained: "[Endnotes] allow . . . me to make the primary-text an easier read while at once 1) allowing a discursive, authorial intrusive style w/o Finneganizing the story, 2) mimic the information-flood and data-triage I expect’d be an even bigger part of US life 15 years hence. 3) have a lot more technical/medical verisimilitude 4) allow/make the reader go literally physically ‘back and forth’ in a way that perhaps cutely mimics some of the story’s thematic concerns . . . 5) feel emotionally like I’m satisfying your request for compression of text without sacrificing enormous amounts of stuff.”