Chapter 12 The Bottom Line On Footnotes  And Endnotes

• Jurisdiction: New York

Chapter 12 — The Bottom Line
On Footnotes¹¹¹ and Endnotes¹¹²

Footnotes and endnotes have been the subject of mirth. Pennsylvania Judge (and later Dickinson Law School Dean) Burton S. Laub once said, “Anyone who reads a footnote in a judicial opinion would answer a knock at his hotel door on his wedding night.”¹¹³ U.S. District Court Judge Gordon of Wisconsin once remarked, “If judicial opinions had Blue Cross, they could go to the hospital and have their footnotes removed.”¹¹⁴ And D.C. Circuit Chief Judge (and later Presidential Counsel) Abner J. Mikva once wrote, “If footnotes were a rational form of communication, Darwinian selection would have resulted in the eyes being set vertically rather than on an inefficient horizontal plane.”¹¹⁵

All believe that footnotes or endnotes are acceptable for excerpts of testimony and to quote contractual, statutory, and constitutional provisions. Good legal writing gets to the point without the distractions often found in footnotes and endnotes. If something is important enough to include, it’s important enough to feature in the text. But footnotes and endnotes may also contain collateral thoughts and special effects too interruptive for the text.

One special effect for a footnote or endnote is a sidelight. For a classic sidelight, read People v. Benton,¹¹⁶ in which the court used a footnote to lament that the defendant, a gunpoint robber, told his victims “don’t say a mother-f—ing word.” The Benton court yearned for the good old days, when English highwaymen used richer criminal argot, such as “Stand and deliver.¹¹⁷” Another sidelight appeared in Golden Panagia S.S., Inc. v. Panama Canal Comm’n¹¹⁸: “Counsel for Golden Panagia informed this court at oral argument that Newell is now, in any event, dead. A Higher Court thus has jurisdiction over Henry Newell, and we are confident that any sins hemay have committed will be dealt with appropriately there. See Matthew 25:41–46 (explaining Final Judgment procedures¹¹⁹).”

Some believe that citations should appear in footnotes, although most attorneys and judges put citations in their text. Citations in text are called “sentence citations.” A movement led by legal-writing maven Bryan A. Garner is afoot to use citational footnotes, or sentence citations in footnotes.¹²⁰ Anti-traditionalists who favor moving sentence citations into footnotes argue that sentence citations are “aggravating,” a “nuisance.”¹²¹ They also contend that citational footnotes force opinion writers to assure that what remains in the text does not look like “legal code.”¹²² And that, they urge, makes legal writing accessible and democratic. Garner argues that volume and page numbers should be put into footnotes to make sentences shorter; paragraphs forceful and coherent; ideas, not numbers, controlling; poor writing laid bare; case law better discussed; and string citations less bothersome.¹²³ Opponents of citational footnotes argue, however, that looking up and down at the footnotes is itself distracting. ¹²⁴

Whatever approach you favor—sentence citations or citational footnotes—conforms with approved usage. You can even compromise by putting case names in running text and citations in footnotes or endnotes. But I offer three cautions if you use citational footnotes or endnotes.

First, use footnotes or endnotes only for citational letters and figures. Do not develop legal authority in footnotes or endnotes or use them for any other purpose. In short, do not let an opportunity to use footnotes or endnotes for citations lead you to put into your footnotes or endnotes what should properly appear in your text.

Second, for judges, if your opinion goes online, readers will have a difficult time hyperlinking to your footnoted citations. They will be forced to move their cursors up and down repeatedly.

Third, attorneys and judges should add relevant information to their running text to explain the citation’s weight of authority—such as the name of the court and the year of the opinion, even if that information will also be in the citation. Do not force readers to read footnotes or endnotes to...