Footnotes are the bread and butter of law reviews and certain treatises. They are used to provide authority for virtually every sentence in the text; to expand upon points in the text; or just to provide side comments. While all of these may be worthy functions in academia, litigation briefs are different. Footnotes should play a much more limited role; use them judiciously.
Part 1: The Worst Uses of Footnotes —
Putting all the cites in the footnotes: Some brief-writing seminars promote the idea that all citation to authority should be placed in footnotes. This is controversial and should be avoided for two major reasons.
First, it’s not good advocacy. It makes the writer the show, when the show should be the law. The goal of your brief is not to have the judge conclude, “wow, that was a well-written brief!” Rather, you want the judge to think, “yes, counsel did a good job, but of course the facts and the law were totally on their side.” For that to happen, the authority should be in the text. In addition, if the reader pauses to read the footnote, that interrupts the flow of the text.
Second and perhaps more important, courts simply don’t like all the authorities in the footnotes rather than the text. One or two courts have rules prohibiting it, and both appellate justices and senior research attorneys I have heard unanimously condemn it.
Making arguments in footnotes: We have all done this, myself included. It’s particularly tempting when you don’t know where an argument fits into the organization of your brief. But that’s all the more reason to re-evaluate your organization, or to re-evaluate your argument. If the point is important, it should be in the text. If not, it shouldn’t be in the brief at all. Otherwise, you are sending mixed signals. As one appellate court cited in the Rutter Group’s practice book stated, “We are not fond of footnote arguments, as they make us unsure whether the appellant is attempting to raise a ground on appeal or is merely making a passing comment.”
“Educating” judges with information they don’t need: When you know a lot about a subject, it’s tempting to share that information with an audience, especially a captive one, and you might think that footnotes are a good way to do that. Think again. The goal of the brief is to persuade the court, not provide the judge with a free webinar. Ask yourself if the information is necessary for the judge to understand and decide the legal issue. If it is, the information belongs in the text. If the answer is no, delete.
Digressions: Avoid any footnotes that begin with “By the way,” or could easily begin with “By the way.” Stay focused.
Part 2: The Best Uses of Footnotes –
When necessary to preserve the flow of the text: The brief writing seminars are correct that throwing lots of lengthy cites to authority in the text, especially in the middle of a paragraph, can interrupt the flow of the argument. Sometimes a footnote can help with that problem, as, for example, when you paraphrase a statute and provide the text in a footnote. Footnotes can also help with unusually lengthy citations, such as some internet sites.
When an early footnote saves later space: In a related vein, a footnote placed early in a brief can save space in the later text and make the text easier to read. If, for example, the brief concerns CalWORKs or Medi-Cal, the first time you cite to a statute you can drop a footnote saying, “Unless otherwise stated, all statutory citations will be to the Welfare & Institutions Code.” Then further citations to that code can be signified just by “Section” or “§” followed by the relevant number of the code provision.
Collateral Points: The CEB practice book acknowledges that footnotes can be used to “mention a collateral point.” For example, if you are raising a point on appeal that wasn’t made in the trial court, you might acknowledge that in a footnote and explain why it’s permissible to do so under the circumstances. But arguably, even then you might want to make the point in the text or save it for potential rebuttal in a closing brief. In any case, I agree with everybody who has written on the subject that the use of argumentative footnotes should be very limited. So while it’s unnecessary and maybe not even desirable to eliminate all footnotes from your briefs, use them sparingly and wisely.
2. Addition by subtraction: Improve your advocacy by avoiding these ten words and phrases
What you omit can often improve your advocacy as much or more than what you add. Helpful omissions can range from entire arguments to just a word or phrase.
Here are ten such words and phrases:
1. “including but not limited to…”
Think about it. Why the “but”? Is there some universe in which “including” means “limited to”?
2. My oral argument favorite: “With all due respect, judge . . .”
It doesn’t matter what comes next; when I hear those words in a courtroom, I immediately begin looking for a table to duck under. The judge knows what the attorney really means is, “your power to hold me in contempt prevents me from saying out loud what I really think of you.” And the judge suspects that whatever the attorney next says will be anything but respectful. It’s part of the job description to disagree with a judge at times. You should do so politely and yes, with a respectful tone, but without the “with all due respect” nonsense.
3. “As [opposing party/counsel] well knows . . .”
Three problems with that: (1) you don’t usually know what your opponent knows; (2) it is almost always irrelevant; and (3) it’s likely to irritate the judge as uncivil. Just state your factual or legal proposition without speculating on what your opponent knows. This advice applies equally to communications with opposing counsel (i.e., “as you well know”), especially in settlement negotiations. You want to convey the strength of your position, but without potentially scuttling the negotiations by making matters personal.
4. Using “said” as an adjective, as in, “defendants misconstrue said statute.”
To be sure, “said” is a perfectly good verb. Indeed, the late Robert B. Parker, in his Spenser novels, never used any other verb to describe dialogue. But as an adjective, “said,” along with its cousin “aforesaid,” is pretentious legalese. Stick with “defendants misconstrue the statute” or “that statute.”
5. [when representing the plaintiff] “Plaintiff contends…”
That suggests: “this is what my client believes; personally, I’m not too sure about it.” Don’t distance yourself from your client; just make the argument.
6. [when in California state court] – “California Civil Code section 1942.5 provides …”
Regardless of what is suggested by the Bluebook, which is written for a national, academic audience, you don’t need to tell a California state judge we’re talking about the California Civil Code, not Mississippi’s. (Unless, of course, you are talking about Mississippi). Same goes for “California Legislature.” Just plain “the Legislature” will do.
7. “Clearly” is the most over-used word in legal writing.
At best, it means that the author thinks the argument that follows is right, which is not very persuasive. And at worst, especially if used repeatedly, “clearly” will be construed as quite the opposite: i.e., the author doesn’t have the facts or the law, but thinks that shouting at the judge will carry the day. It won’t.
8. “Plaintiffs, through their attorney of record, hereby submit their opposition to the motion…”
Leave aside for a moment whether the first thing you want the judge to see is what is already apparent in the title of the brief. If you are signing the brief as “Attorney forPlaintiffs,” you don’t need the italicized information. Same with “the parties, through their respective attorneys of record, stipulate . . .” Admittedly, in a stipulation this is fairly harmless. But still, if you omitted that phrase, do you think the reader would conclude that the parties are stipulating through their respective baristas?
9. “[Opponent’s] self-serving declaration…”
Describing a declaration or statement as “self-serving” is unnecessary, unless you think that ordinarily people deliberately make statements that are self-destructive.
10. [when opposing a discovery request]: “this is nothing more than a fishing expedition.”
Of course it’s a fishing expedition; if they already had the information, they wouldn’t be looking, i.e., fishing for it. And if you need to use an insulting metaphor, try something that wasn’t rejected by the Supreme Court 60 years ago. Greyhound Corp. v. Superior Ct., 56 Cal. 2d 355, 384 (1961) (“there is nothing improper about a fishing expedition, per se.”).
While I stand by my position on all ten of these examples, I don’t claim these are necessarily the most important offenders. They are just ten personal favorites, and if you want to call them “pet peeves” I won’t be offended.