The Volokh Conspiracy

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Footnote Limits

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Just came across this standing requirement, from several orders by Judge Mark Goldsmith (E.D. Mich.):

The Court prohibits the use of excessive footnotes in briefs. A brief supporting a motion or response may not contain more than 30 lines of footnotes. A brief supporting a reply may not contain more than 15 lines of footnotes.

Of course, this is just one judge's formal position, but my sense is that many judges informally take a similar view. Here's my general view for briefs (not for articles), though again others may disagree (and much depends on what you know about the preferences of the particular judge, or the particular multi-member court):

  1. If something is important, it should be in the text. If something is not important, it should be out of the brief altogether.
  2. Citations to cases, statutes, and other legal authorities (including treatises) are the most important part of the brief, not the least; they should be in the text.
  3. Citations to newspaper articles, web sources, and law review articles, on the other hand, tend to be both less significant and longer and thus more intrusive. Those are sometimes worth putting in the footnotes.
  4. String citations that are there just to confirm that the body of law you call solid really is solid might be worth putting in the footnotes (to support the key citations in the text)—though they might often be worth just deleting.
  5. Occasionally, there is a tangential detail that needs to be covered just for the sake of completeness, but that you think the court is very unlikely to actually care about. (This could, for instance, be some fact or procedural detail or procedural counterargument that the other party hasn't raised yet but that a curious reader might be thinking about.) That might be worth putting in the footnote, though think twice about it.

The rules are different for law review articles, partly because the functions of such articles are generally different and partly because the readers' expectations are generally different. But for briefs, footnotes are usually best minimized.

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  1. President Biden, please put this man on the Supreme Court.

    1. And can Jerry Nadler start impeachment hearings on the endnotes judge?

    2. Justice Breyer apparently hasn't used a footnote in an opinion since his time on the First Circuit. So we are going to need to fill the "no-footnote" Seat on the court.

    3. Sorry. Not the right gender or skin color for Biden.

  2. In New York, the Appellate Division, Fourth Department doesn't allow footnotes in briefs at all.

    1. That actually sucks. There are too many overly long citations that might be necessary, like a web address, but should not be in the text for obvious reasons.

      1. Yes I agree.

        Also footnotes are useful if there is something that you believe is irrelevant, but you don’t want to be accused of failing to deal with it. Stick it in as a footnote.

  3. So, to simplify it briefly... a brief's footnotes really should be brief?

    1. But not in the sense of "brief" used in the word "brief."

      1. Of course, Eugene is a denier of the origin of the brief, in Peter Abelard, a priest, copied by St. Thomas Aquinas, another priest. If you want to see the tightest IRAC ever, read Sic et Non. That makes the brief a lawless lawyer tool in our secular nation.

      2. Embrace the tautology, lawyers. Suits should be suitable, and motions should move.

        1. And briefs should be worn under your pants.

          1. New rule: All briefs must be fully sanitized before being submitted to this court.

  4. My favorite quotation from Rehnquist is 'no judge ever complained about a brief being too short'. The old chief got it right.

  5. Aren't these briefs oath statements? If a judge asks for a citation it should be given to him. If a lawyer makes a statement that is not supported, he should be subject to perjury. Footnotes are a way to extend the time and the fees to write the briefs. They are a rent seeking fraud.

    1. Aren't these briefs oath statements?

      No, they aren't.

      1. Is there a Rule of Conduct prohibiting the misleading of a tribunal by an advocate?

  6. Wow. You nailed it. This is pretty much exactly how I feel about citations. I used to be for all footnotes, having externed for a pro-citation in footnotes judge. But I eventually came around to thinking in text-citations are better for briefs/opinions (One way to cut down on clutter is to dump parallel citations, although unfortunately my State's style guide requires them still). And yet, I think it's stupid to put a long web address or a string cite in the text. So I don't like the idea of mandating all above the line citations.

    As for string cites generally, I think the best way to avoid them is to find a case that has collected all the cases you think support you and add the parenthetical (collecting cases). Sometimes I do think they are unavoidable, however. When it's a relatively new issue, sometimes the only way to illustrate your position is to cite a bunch of cases because there is no binding authority and not yet any leading persuasive authority that supports you.

    That endnotes district judge whose court escapes me is the worst person in the world however.

  7. Footnotes are great for clarifying references or putting in uncontroversial legal points. For example, if I have a case involving several people with the same last name, I'll footnote an explanation of why I am using first names. Or if a brief is addressing some element of a claim, I've used a footnote to cite the main case where the elements of that claim are set forth.

    It's not that these things aren't important. It's just that they aren't substantive and can take up room needlessly.

  8. Relatedly, judges who use footnotes (rather than the internal citations they told you to use on your first day of law school) should be admonished. Judges who use ENDnotes should be impeached and removed from the bench. Bad enough in a bound volume, but there's nothing like reading an opinion on a laptop, being annoyed by seeing a superscript numeral, scrolling to the bottom of the page to see nothing, then realizing you're going to have to scroll 75 pages and back. I imagine this increases the reading time by a factor of at least ten.

    1. but there's nothing like reading an opinion on a laptop, being annoyed by seeing a superscript numeral, scrolling to the bottom of the page to see nothing, then realizing you're going to have to scroll 75 pages and back.

      Well, if the note is hyperlinked both ways — i.e., click on the number in the body and it jumps to the foot/endnote; click on the number in the foot/endnote and it jumps back to the body — then that's not so bad.

  9. First, I hate the modern trend of moving from inline citations to footnote citations. I'm interested in the authority to which the writer cites. A U.S. Supreme Court citation is more persuasive than a citation to a manual for public defenders (yes, I've seen that). Moving back and forth between the the body and footnotes is distracting and slows down reading. Lawyers and judges are the primary audience for briefs and they are used to reading inline citations without getting bogged down.

    On the other hand, on occasion, I have had to survey the law on a particular point. In the text I've written 32 states have held XYZ (footnote citation) while only 8 states have held ABC.(footnote citation). Nobody wants to read all those citations in the body of a brief.

    And then sometimes, there are times when it is appropriate to insert technically irrelevant information in a brief via footnote. For example, explaining in a high profile case that the autopsy of a young homicide victim showed no drugs or alcohol in the minor's system. That's for the family and to quell public speculation.

    So, I generally dislike footnotes, I dislike hard and fast rules.

    1. The annoyance factor attached to citations to authority in the footnotes is compounded when the court allows for smaller font sizes. It's like watching a movie with subtitles on a really small television.

  10. I remain firmly in the cites in the footnotes camp. Much of the chain of a legal argument is a series of unremarkable propositions which lead to the inevitable conclusion. Does a judge really need a citation to something like “If there is a dispute of material facts, summary judgment must be denied.” If there really is an important case, one can discuss it by name in the body of the brief. If the case is that important, the discussion should be thorough and accurate enough that the only reason a judge should read it is to verify what you’ve already said.

    1. If the author felt it was important to cite some kind of authority, I want to be able to 1. tell at a glance whether it's binding, 2. copy and paste it into Westlaw to see if it actually says what it's supposed to. Inline citations let me do that easily; footnotes don't (nor does the "hybrid" system of putting the case and court info inline and the reporter location in the footnote). If you don't think your reader really needs to do that, you probably don't need a cite at all.

  11. Does a judge really need a citation to something like “If there is a dispute of material facts, summary judgment must be denied.”

    Some judges say in their rules that you don't need to address things like standard of review on the motion. Some day, I would like to see a lawyer write:

    Standard of Review
    You already know this, judge.

    1. No, I've never met that judge.

  12. If you need a solid footnote collecting cases, find an appellate decision in your jurisdiction that does just that and cite it and only it (unless the whole point of your brief is the law is so solid that virtually no court has found otherwise). If the judge cares they will look at your footnote, find that case, and see the slew of citations within it.

  13. Rules 2-5 just show that Rule 1 is meaningless.

    The poster above added another good one: Including factual detail that's not legally relevant but which may matter to your client or color the court's view. Perhaps the opposing party is accusing you of some bad behavior, and you want to set the record straight.

  14. "and much depends on what you know about the preferences of the particular judge"

    I've seen jurisdictions where there's more than local rules, each judge has their own rules. This is particularly crazy in the bankruptcy context, because you need to file a bunch of things on the first day, but don't know who the judge is until you file, hence you have everything in draft until you know whose rules you're complying with. Judges do this stuff "because they can" but it imposes real costs and hardship on lawyers which are ultimately borne by clients. It'd be nice if the federal judiciary, at least, could just decide on what they wanted in one uniform style guide. But that won't happen, so we're stuck with the hodgepodge.

  15. One of the unintended consequences of page limits on briefs and memos was its incentivization of the use of footnotes to cram more words into the permissible number of pages through the use of single spaced footnote lines and smaller font sized textual footnotes. The shift from page limits to word limits removes that incentive, but because textual footnotes are so common in law journals, too many lawyers still use them. During his years on the bench, Judge Posner regularly criticized footnotes in general and textual footnotes in particular, and whatever else you may think of his opinions, they grew more readable as he abandoned the use of footnotes.

  16. Those are pretty much my guidelines as well. I don't understand putting citations generally in footnotes. For a SCOTUS opinion, fine. But when I'm writing a brief, nobody cares what my opinion is, they care what controlling law says. So if I'm citing to a case for authority, I should have that case in the text.

    I mostly use footnotes just for brief explanatory notes that aren't relevant to the argument but need to be somewhere. Something like noting that the child's name is a pseudonym, Defendant didn't challenge his conviction in X related case, etc.

    1. I’m honestly trying to understand the thought process here. Does placement in the paragraph make the citation more authoritative? It doesn’t to me. It just makes the paragraph harder to read and the citations harder to find when I’m plugging them into Westlaw.

      1. It makes the citation more, or less, authoritative, as appropriate, by letting us know who said it and when.

  17. Judge Stanley Blumenfeld (CD Cal) has a similar rule: "A party is limited to the use of one footnote for every three pages (rounded down) in any brief or other filing." He also has a rule that "Parties should not use string cites without a good reason" (without further explaining what constitutes a good reason) and a parenthetical must be included for each case in a string cite. These rules are in his Civil Standing Order.
    I

  18. Foonotes are perfect for when the client wants you to make an irrelevant, unhelpful point.

  19. EUGENE VOLOKH: If something is important, it should be in the text.

    CAROLENE PRODUCTS FN FOUR: Say what, now?

  20. This is a great rundown on footnote use. I oversee the intern in my office's appellate division, and I shared this with her as a learning tool. Thanks, professor!

  21. I disagree wholeheartedly on citations in footnotes. I wish we all could collectively move to putting everything in footnotes and imposing word limits rather than page limits. We live in a digital world. It’s easy to put citations in footnotes. And as for the notion that the citations are important—yes, they are the most important part of the brief, but not while you’re reading it. It is infuriating to have to hunt for the citation you’re looking for in the middle of a 400-word paragraph with a dozen citations in it. It would be far easier to find citations by looking to the bottom of the page containing the relevant argument.

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