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

When it comes to footnotes--and in fact on all things relating to written advocacy--I have only one rule.  Call it the "Greatest Commandment"--or for you sci fi fans, "the Prime Directive."  It is:

If it helps the reader, it is right.

If it hinders the reader, it is wrong.

So it is with footnotes.  Footnotes are only a tool.  You can't be fundamentalist about always or never using footnotes lest you fail to help the reader or hinder the reader's understanding.  Instead, use them to aid the reader by deemphasizing information that would interrupt their train of thought, and refrain from using them when you really want them to notice the information that would otherwise have been placed below the text.

Recall, for example, the screwed up document that I used before--remember, the one where all the "chunks" had been removed.  Look at the document with chunks and note how footnotes help with creating "chunks" by deemphasizing the record cites. 

Normal people (i.e., non-trial-lawyers) don't read a story like:

Once upon a time there were three caniforms of the Ursidae family ("the Bears").  (22CR1474-75; 23CR2500, 2522, 2535, 2577-79, 2612-14, 2616) Additionally, there was a family residing proximate to the forest with several children, inter alia a pre-adolescent female ("Appellee" or "Goldilocks").  (22CR1474-75; 23CR2500, 2522, 2535, 2577-79, 2612-14, 2616)

Judges are people too.  (Shocking, I know).  And normal people would much prefer:

Once upon a time, there were three Bears and a little girl called Goldilocks.1

In the ordinary recitation of facts, you are telling a story and it does not matter what your source is.  Indeed, the appellate standard of review likely prohibits the appellate court from considering the credibility of your source.  A footnote communicates, "I have a source," without bogging the reader down in the identity of the source when that is not important.  The distance also follows the CRAP rules because the facts that matter are placed "proximate" to each other, but the sources that do not matter are available at a distance. 

But you can't be a fundamentalist about it, because what if the identity of the source does matter? Consider for example, the quote:

And there were in that same country shepherds, abiding in the fields, keeping watch o'er their flocks by night.  And lo, the Angel of the Lord came upon them, and the glory of the Lord shown round about them; and they were sore afraid.

Depending upon the context, it might matter quite a bit whether I was intending to quote the Second Chapter of the Gospel of Luke, or whether I was primarily referring to Linus in the Peanuts Christmas Special. 

There, the source matters, so rather than be a footnote fundamentalist, put the source in the text.

Sure, one could telegraph the source by adding extra clauses like, "As Linus Van Pelt so movingly put it in the Charlie Brown Christmas, . . . . " But now you're mucking up your crisp syntax with extra words.  That in itself threatens to hinder the reader. How much better to just put the source where it matters?

So, here are the official, fundamental, non-fundamentalist rules on the proper usage of footnotes from the Appellate Record:

• Use footnotes whenever doing so helps the reader
• This usually means using footnotes to deemphasize material that is secondary or would interrupt the reader from your point.
• Often this means putting record cites below the text rather than interrupting the story.
• Refrain from using footnotes whenever a footnote would hinder the reader.
• This usually means not using a footnote when the identity of a source is important to the story.

I can already hear the debate stirring?  Like the prayer book riots of old, are we to anticipate some Bluebook riots?  I hope so. 

Use the comments to riot.  And coming soon, we'll call out the footnote fundamentalists in the argument section of a brief.