One of the surest signs that I’m a lawyer is that I’m conditioned to look for footnotes – and I love them! Any time I read a statement of fact I automatically glance down to the bottom of the page and am disappointed if there’s nothing there. So, in honor of my deep feelings for footnotes, I give you the following three reasons footnotes rule:
(1) It’s time to put up or shut up. The great thing about legal footnotes is that if you state a fact in a brief, you’d better have a footnote to back it up. If you try to claim something (“It is well-established that courts can sanction parties after cases have been dismissed”), you’d better cite some cases or no one is going to pay much attention. Think of how great that would be if the same standard was imposed on other professions – especially politicians! What if a politician couldn’t make a claim (“Subsidizing the making of science fiction movies has been shown to increase the number of children interested in math and science”) without a footnote showing the support for their claim (See The George Lucas Foundation)?
(2) CYA. I first learned this handy-dandy tool when I was working on a never-ending research memo for a partner as a young associate. The question I’d originally been given had led me down several rabbit holes and it was a senior associate who told me the secret to ending the madness: just add a footnote cutting off the questions (“Issues X, Y, and Z are beyond the scope of the current research memo but that I would be happy to be research those issues separately”). The same idea works in briefing filed with the court, where you can use footnotes to make sure you don’t make waive an argument (“Plaintiff does not intend to waive any arguments regarding scope of the contract”).
(3) Funny and snarky asides: One of my favorite quotes is by Alice Roosevelt Longworth, who said, “If you haven’t got anything nice to say about anybody, come sit next to me.” That’s footnotes, which can be used by parties for bitchy asides (“It is not apparent to Defendants why the plaintiff made this claim, as it is irrelevant, but Defendants will address it nevertheless”). And even judges can use them to smack down parties (or their lawyers) for improper behavior or arguments. Even better, as discussed in my post on judges and Star Trek, judges can use footnotes to be funny (my favorite is the Romulan footnote).