Death by Footnote
| Publication year | 1993 |
| Pages | 263 |
| Citation | Vol. 22 No. 2 Pg. 263 |
1993, February, Pg. 263. Death by Footnote
I had just left the courtroom after a status conference when I noticed Tim Flegleman sitting on a bench in the hall. Flegleman, who was Maxwell Mortise's associate, was concentrating on the draft of an appellate brief spread out on the bench around him. Flegleman's tongue was sticking out the side of his mouth as he used a red pen to scribble vigorously on the draft.
"What are you working on, Tim?" I asked.
"It's the brief in our constitutional challenge to the new bicycle repairman licensing law," Flegleman replied. "Mr. Mortise is out of town taking depositions, and he asked me to have a draft of the brief ready when he returns. I'm using every spare minute to get it done."
I invited Flegleman to join me for lunch. On the way to the little restaurant around the corner, Flegleman confided that he was having problems with part of his draft. "It's footnote 42," he said. "I just can't get the argument to flow the way I want. It seems choppy and disorganized."
We reached the restaurant and chose a table near the back. "Footnote 42?" I asked. "How many footnotes are there in your draft?"
"Fifty-three," Flegleman said proudly. "I spent days in the library researching every Supreme Court case concerning equal protection, due process, and the commerce clause. The footnotes cover them all."
I considered Flegleman's answer while we ordered. "You said you were having trouble making the argument in footnote 42 flow. How long is the footnote?"
"Four paragraphs," Flegleman said.
"Why are you putting part of the argument in a footnote?" I asked. "Wouldn't it be simpler just to put this part in the text?"
Flegleman gave a crafty smile, leaned forward, and lowered his voice. "I have a problem with the page limit. The Colorado Supreme Court already has granted my motion to extend the limit from thirty to forty pages, but the only way I can fit my draft into forty pages is to put a lot of the argument into single-spaced footnotes."
Susan Victor, who recently had been appointed Colorado Solicitor General, walked into the little restaurant. I waved her toward our table and invited her to join us. After congratulating her on her promotion, I explained Flegleman's problem. Victor pulled a brief from her briefcase and handed it to...
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