Use footnotes effectively

Legal stylists disagree on how often lawyers should use footnotes and what they should use them for.

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 that footnotes should not contain any substantive information.[1]

I advocate using footnotes much more commonly than is typical in legal writing. In my view, footnotes can enhance readability by keeping only important information in the main text and avoiding interruptions of an argument or narrative. Unlike extraneous asides or citation strings, footnote references are easily glanced over, allowing the reader to continue without interruption. The reader can then choose to investigate a point further or check a citation by returning to the footnote at the reader’s leisure.

I advise taking a flexible approach to footnotes in which you reserve the main text for information that is 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 argument[2]

  • 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 in order to preserve them for appeal

Contrast the following examples. The first uses record citations in the main text, as is traditional; the second relegates that 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 simply 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 really need to make the point you’re making; if not, delete it. Always try to cut and simplify.

  • Do not allow footnotes to break across pages.[3]


Footnotes

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

[2] Responding to an opponent’s contention in a footnote indicates that you don’t believe the point merits a lengthy response.

[3] To avoid allowing footnotes to break across pages in 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; and 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.


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Ryan McCarl is a partner at the law firm Rushing McCarl LLP and the author of the book-in-progress Elegant Legal Writing. He taught Advanced Legal Writing at the UCLA School of Law. You can follow him on LinkedIn and Twitter as well as his personal blog.