Appellate Insights

Mar 12, 2020 Laurie J. Hepler
Slay The Footnotes

Are footnotes in appellate briefs really so bad? Yes, they are. If you must use them temporarily to store ideas while drafting, be sure to remove virtually all of them before you file. Here’s why.

  • Distraction.  Most of us have trouble following an argument if told to go fetch a marginal idea. Justices and research attorneys are the same.
  • Waiver/Forfeiture. A recent precedent said it again: “An appellant cannot bury a substantive legal argument in a footnote and hope to avoid waiver of that argument.”
  • Abuse.  Footnotes often take swipes at the other side, or make pointless comments about the “irony” of this or that. Justices and research attorneys hate this.
  • Disorganization. Substantive footnotes usually serve as crutches to avoid hard editing work. No point is worth making if it’s not worth developing in relation to the rest of your brief. If you’re not sure how to do that, seek an editor’s help—ideally a lawyer who knows nothing about the case.

► The practical message: Strive for no more than one footnote every ten pages. And consider this test to decide if a footnote can stay: Would I be perfectly happy if the Court of Appeal never considered this—but do I still believe it helps the court?