The Footnote=an Interruption

• Publication year: 1997
• Pages: 47
• Citation: Vol. 26 No. 5 Pg. 47

26 Colo.Law. 47 Colorado Lawyer 1997.

1997, May, Pg. 47. The Footnote=An Interruption

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47

Vol. 26, No. 5, Pg. 47

The Colorado Lawyer
May 1997
Vol. 26, No. 5 [Page 47]

Departments
The Scrivener: Modern Legal Writing
The Footnote=An Interruption
by K. K. DuVivier
C 1997 K.K. DuVivier

DO YOU HAVE QUESTIONS
ABOUT LEGAL WRITING

K.K. DuVivier will be happy to address them through The Scrivener column. Send your questions to: K.K. DuVivier University of Colorado School of Law, Campus Box 401 Boulder, CO 80309-0401 or through e-mail to: duvivier@spot.colorado.edu.

K.K. DuVivier is a senior instructor of Legal Writing and Appellate Court Advocacy at the University of Colorado School of Law, Boulder.

A footnote is like being called downstairs to answer the doorbell while enjoying the rites of the bedroom.

Noel Coward

The footnote is a familiar tool in legal scholarship. Some of the best law review articles, legal encyclopedias, and legal treatises devote half of each page to detailed, supporting footnotes. Footnotes make sense in this context. Readers of these sources have a dual objective: to glean a general framework for an argument and to find specific authorities to support each point. The Colorado Lawyer is such a research source. It lists authorities in endnotes so its readers may complete an article uninterrupted, but they also may find the more specific sources if they should need them.

In contrast to these research sources, briefs to a court should avoid footnotes. In a brief, your goal is to compel and persuade your readers. To be effective, the main text should flow coherently and should be easy to read. Footnotes defeat both of these aims.

Footnotes interrupt the flow of the main text. After turning to the footnote, the readers must take a few minutes to regain context. Or, if the readers wait to review the footnotes after finishing the main text, then the footnotes are out of context.

Footnotes make reading a brief more difficult. Many judges hate them, and some refuse to read them at all. Chief Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit stated, "If God had intended for us to use footnotes, He would have made our eyes vertical instead of horizontal."1

Furthermore, do not be tempted to use footnotes to evade a page-limit restriction. Courts easily recognize this ploy and may question your...