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Bar Association of San Francisco Member Benefits: Publications

Legal Writing Tip: What’s the Deal with Footnotes?

 

By Leslie A. Gordon, BASF Bulletin Contributor

 

Legal writing experts have strong, often divergent views about the role of footnotes. Some believe that case citations and parenthetical facts and ideas should remain in the body of briefs primarily because stare decisis is the basis of all legal arguments. They also worry about briefs becoming “bottom heavy” with too many footnotes. But others believe that a string of case citations – complete with italics, abbreviations and other eye-grabbing punctuation – interrupts prose.

In general, I subscribe to the Bryan Garner school of thought, which holds that case citations are far more reader-friendly in footnotes than in the body of the document. When you consider the foremost pre-writing questions – who is my audience (busy judges and clerks) and what is my purpose (to persuade) – focusing on a clean narrative with streamlined citations consigned to footnotes seems appropriate.
Importantly, placing citations and other supplemental information in footnotes doesn’t alter the reader’s access to the legal authority. Without sacrificing document design and readability, footnotes allow your research to be traced without a barrage of jumbly citations and attendant punctuation disturbing the argument’s flow. String cites and multi-state surveys of precedent are especially footnote-appropriate.

Remembering your purpose of persuasion, footnotes should supplement and authenticate your arguments – they should not serve as a vehicle to insult the other side or show off the breadth of your research (both are tempting, I know). Don’t dilute your argument by directing readers to footnotes with discursive or tangential information that won’t impact the decision.

As with any element of your brief, monitor the length of footnotes. Whenever possible, cite just one strong source – rather than several weaker ones – for statements that don’t originate with you. Similarly, if possible, avoid consecutive ids. – if all the facts from one paragraph derive from the same source, a single clear footnote should work.


 

A former lawyer, Leslie A. Gordon is a freelance journalist living in San Francisco. She is the author of Cheer: A Novel, which is available on Amazon. She can be reached at leslie.gordon@stanfordalumni.org.

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