Use footnotes effectively in legal briefs

Footnotes make litigation documents easier to read by keeping only important information in the main text and avoiding interruptions of an argument or narrative.

Legal stylists disagree on how often lawyers should use footnotes and what they should use them for. Bryan Garner, for example, advocates putting citations in footnotes but believes they should not contain substantive information.¹ This position was a departure from legal-writing norms, as attorneys have long resisted footnotes.²

It is often said that judges dislike footnotes, but it’s unclear whether that assertion is based on sound empirical data. A better explanation for the legal profession’s avoidance of footnotes is path dependence: ours is a traditionalist, conservative profession. Attorneys used to typewrite briefs, and footnotes were impractical until word processors became widespread.

In my book Elegant Legal Writing (UC Press 2024), I advocate using footnotes much more than is typical in legal writing. Footnotes can enhance readability by keeping only necessary information in the main text and avoiding interruptions of an argument or narrative. Unlike extraneous asides or citation strings, footnote references are easily ignored, allowing readers to continue without interruption. Readers can then choose whether to read the footnote. They will know where to look to check a proposition’s citation or investigate the point further.

I advise taking a flexible approach to footnotes, reserving the main text for information essential to one’s argument or narrative. Consider putting some of the following information in footnotes:

• Citations to sources you do not discuss in the main text

• Bibliographic information about sources (e.g.,  24 Cal. App. 5th 123 (2019))

• Citations to the record (e.g., R. 60 or Compl. ¶ 15)

• Minor substantive points that must be addressed but that depart from the main thread of the argument³

• Responses to minor contentions of the other side

• Long block quotations, such as an excerpt from a legislative committee report, that you need to include but don’t want to put in the main text

• Minor alternative arguments that you need to raise to preserve them for appeal

Contrast the examples below. The first uses record citations in the main text, as is traditional; the second relegates bibliographic information to footnotes. Note how the citations in the first example create visual clutter and interrupt the reader’s flow:

The second excerpt is much more readable. If readers want to know more about where they can find a fact in the record, they can glance at the appropriate footnote; otherwise, they can keep reading without interruption.

Here are a few more footnote tips:

• Keep footnotes short.

• Consider whether you need to make your point; if not, delete it. Always try to cut and simplify.

• Do not allow footnotes to break across pages.⁴

---

Ryan McCarl is a founding partner of Rushing McCarl LLP, author of Elegant Legal Writing (U. Cal. Press 2024), and adjunct professor at Loyola Law School. For more writing tips, subscribe to the Elegant Legal Writing newsletter and follow Ryan on LinkedIn. McCarl’s book is now available on Amazon.

Please share this post with your networks:

Subscribe for free to receive new posts in your inbox:

Connect with Ryan McCarl: Order the Elegant Legal Writing book | LinkedIn | Rushing McCarl LLP | Linktree | Second Stage (blog) | Twitter (X) | Substack | Threads

1. See, e.g., Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts 114 (Oxford 1999).

2. See generally, e.g., Peter M. Mansfield, “Citational Footnotes: Should Garner Win the Battle Against the In-Line Tradition?” 19 Appalachian J.L. 163 (2019). Mansfield, siding with traditionalists, argues that footnotes should never be used in legal briefs. Other sources discussing footnotes in legal briefs are cited in Margaret Hannon, “Legal Writing Mechanics: A Bibliography,” 19 Legal Comm. & Rhetoric: JAWLD 185, 195–96 (2022).

3. Responding to an opponent’s contention in a footnote shows that you don’t believe the point merits a lengthy response.

4. To avoid allowing footnotes to break across pages in Microsoft Word, open the styles pane on the Home tab and find the Footnote Text style. Use the dropdown menu to click “Modify Style,” open the “Paragraph” submenu, open the “Line and Line Breaks” tab, and check the box for “Keep Lines Together.” If these instructions do not work for your version of Word, search Google for additional help.