Footnotes.

• Jurisdiction: United States

Section 79. Footnotes.—Perhaps no single implement of all the vast apparatus of scholarship is so thoroughly misused in the law as the footnote. There may be some justification in the manifold areas of the academic world for that formidable display of learning and industry, the thin stream of text meandering in a vale of footnotes, but such a technique is quite self-defeating in the law: it makes the writer's thoughts more difficult to follow—and hence far less likely to persuade the judicial reader.

The worst offenders on this score are undoubtedly the law reviews, whose student editors have at least the excuse of being still at the apprentice stage, and whose faculty editors may have had but insufficient opportunity to gain firsthand acquaintance with judicial psychology. Next in order are the attorneys at law who are not lawyers but who like to make a show of erudition.

It is entirely proper, and indeed helpful, to use footnotes in a brief (a) to indicate qualifications to statements in the text, where such qualifications would interrupt the thought if they remained in the text, and (b) to include citations on points of secondary importance.

On occasion, some lawyers relegate to a footnote their reply to particular arguments made by the opposing party. This is a risky technique, which is proper only in very limited situations.

In the usual instance, yielding to the temptation to minimize the other side's contentions by giving them footnote treatment will lead counsel into the error of dealing inadequately with important issues. In that situation—see the examples discussed in Section 35 (d), above—the usual result is that the footnote technique backfires.

It is only when a particular argument is totally lacking in factual record support that it is safe to dispose of it in a footnote; see the example set out at pp. 254-256, below, where, with the text emphasizing the facts of record to show that the other side's primary contention was never...