The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

"OK, smart Alec," I hear you saying.  "Do you use footnotes or not?"

Well it depends.  (Doesn't it always?)

Footnotes deemphasize their content.  But placing footnote content in the text emphasizes that content.  As a result, it seems impossible to come up with an all or nothing rule for footnoting authorities.

For example, I have been known to cite a line of cases all the way back to its source, as if to say, "See, I'm not only right in 2010, I've been right for 150 years."  That type of citation can make its visual impact just as well (and maybe even better) from a footnote.   Even without reading it, the block of footnote print communicates something.

But I once read an opponent's brief where all of the cases were in the footnotes.  The writer used very few quotations, but simply made assertions about what the law was and then put the citations in the footnotes. 

I found it very unconvincing.  Without some binding precedent in the text or demonstrable quotations of exactly what the cases said, my opponent seemed like he was making up his legal position out of whole cloth. The court may have felt that way too, because he failed to convince them.  He lost.

Still, footnoting all the cites is not nearly so troubling in a judicial opinion--I guess because the court has less of a duty to persuade us that it is right, but need merely record what it has done and why.  As I have heard Chief Justice Phillips say of the court, "We are not final because we are infallible; we are infallible because we are final."

So, maybe the only rules that one can state are similar to the use of footnotes in a fact section.  The use of footnotes depends upon how much the source of your authority matters and the extent to which the authority will interrupt your reader from understanding your argument:

• Use footnotes whenever doing so helps the reader
• This usually means using footnotes to deemphasize citations that are secondary or would interrupt the reader from your point.
• Often this means putting "see alsos" and string cites below the text rather than interrupting the argument.
• Refrain from using footnotes whenever a footnote might hinder the reader.
• This may mean avoiding use of a footnote when the source of an authority is important (e.g., key binding precedent or a key case to both sides).
• A complete lack of authority in the text is troubling to some readers, so failure to put your best case for any proposition in the text may hinder that audience.
• And what if your judge is a presbyopic screen reader?  He or she may never jump from highly magnified text down to the footnote to see your good case, so here too, reducing all cases to a footnote may hinder both your client and your audience.

 But even my middle-of-the-road-non-fundamentalism has to come with a caveat.  (Who knew?)

If you do too many different things too many different ways you risk violating the CRAP principles of document design: Repetition.  Use too many different cite forms and your reader will grope to understand a pattern that is not there. 

So, am I a mess?  Am I an endangered moderate in this era of footnote polarization?  Use the comments and pontificate on your doctrine of footnote purity or the total depravity of string cites.