Footnotes & When They Can Be Used for Case Citations

Footnotes in legal writing generally serve at least one of three purposes: 1) they provide authority for assertions and principles, 2) they give credit to the ideas of others, 3) they add peripheral or tangential commentary to the primary argument. No matter what appears in a footnote, its significance to the overall piece is diminished simply because of its physical place on the page. Its impact is diminished by the fact that it might never be read.

While footnotes have a substantial place in scholarly legal writing (although, perhaps, a less significant place that what was previously thought), they should be conservatively used in briefs, memoranda, letters, or other law practice writings. Using footnotes differently in each of these types of legal writings is a function of the audience and the purpose of the writing. For example, a law journal article is equally intended to convey a persuasive argument, contribute to a debate, and spark further conversation. Readers are less interested, at least initially, in where the writer’s idea came from, so long as the writing in the body is persuasive. Footnotes in scholarly research provide a compact, easily identifiable, bibliography for an interested reader. To the extent that footnotes in law journal articles contain peripheral or tangential commentary, including it in the text would distract and detract from the larger point. Including them at all might plant a seed for further scholarship, or acknowledge a seed that led to the particular principle footnoted. And footnotes are legitimate vehicles through which a writer can point out the limits of the article’s subject matter or the argument without distracting the reader from the piece.

But writings such as briefs and memoranda are primarily intended to persuade the reader of a particular argument or provide an in-depth analysis of the law. In these writings, resorting to footnoting an idea should be scrutinized. If the footnote contains a tangential or peripheral comment, consider if it  should be either altogether excluded or contained in the main text and addressed directly. Footnotes can become a crutch for a writer who cannot fully abandon all of the noise surrounding a crisp argument. Conversely, footnotes might be used to raise an argument without fulfilling the expectation and duty to fully articulate support for it. When I am tempted to footnote an idea, the first question I ask is “if the idea is important enough to be included in the piece at all, why shouldn’t it be in the body of the piece?” I try to work the idea into the body of the piece before deciding that it belongs in a footnote. Sometimes the exercise of working it into the body reveals that it is important enough to warrant its own paragraph. Sometimes the exercise reveals that it should not be included at all. And sometimes, of course, there is a reason why the idea should be in a footnote. For example, an appellee might use a footnote to point out that an appellant had included an issue in its “Statement of Issues” section of the brief, but had not actually briefed the issue, rendering the issue not properly raised on appeal. The appellee might want to show the court that it was not overlooking this issue and explain why it would not be addressed. Including this footnote’s substance in the body would actually be somewhat inconsistent with what the footnote was setting forth.

In short, whether something belongs in a footnote should be determined against a backdrop of a conservative use of footnotes. Think about how important the principle is, why it is necessary at all, and what it adds/the purpose it has to the overall argument. Relegating less important, but not unimportant, aspects of an argument to footnotes better leverages different parts of a writing for overall persuasion. These principles are equally applicable when considering whether citations to legal authority belong in footnotes. The debate around where citations to legal authority should appear is premised on drawing lines based on the type of authority, rather than the purpose of particular parts of a document. There is no reason why some citations to authority can appear in the body and others are better suited for footnotes. Because case law–and whether it is recent, or from an appellate or trial court, or a court outside the jurisdiction–determines the persuasiveness of an argument, most citations to authority should  be included in the text. Developments in law directly build on the law that already exists. When I read briefs and opinions, I am interested in a citation immediately after reading a principle. It gives me insight into how seriously I should take a particular proposition, at least initially. But there are occasions where citations to case law are properly included in a footnote. A string cite, for instance, that alerts the court to non-binding authority, but authority that highlights examples of how courts have analyzed comparable fact patterns, might be properly included in a footnote. Or a citation to a firmly established principle might appear in a footnote. Instead of strictly adhering to a rule for or against legal citations in footnotes, carefully considering each citation’s place on the page means carefully considering its role  and leads to more nuanced and precise argument.