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

If, like me, you find good footnotes to be "rhapsodic grace notes" or as one judge put it, "a mother lode, a vein of purest gold," then you will certainly be distressed by the news that footnotes may be at risk.

To be sure, there is plenty of unseemly anti-footnote bigotry and hate out there--Horowitz sets out descriptions of them as "unsightly" or "excrescence" or "fungus," comparing them to the "high whine of the dentist's drill." According to Horowitz Noel Coward is reputed to have said that "having to read a footnote resembles having to go downstairs to answer the door while in the midst of making love."

But I think all the hate and bigotry really just arises from misuse. Footnotes are just tool that can be used well or poorly, depending on what your purpose is.

• A hammer can drive a nail to build a house, or it can bludgeon baby seals.
• A footnote can provide a "mother lode" of authority at the right time and in the right manner, or it can make the reader go downstairs to answer the door while in the midst of making love.

It's all in the skill of the writer. Footnotes in the hands of the unskilled make bad writing worse.

I have maintained that one ought not be a footnote fundamentalist. Use them well with an eye toward their benefits and limitations. I use them one way for factual narrative, and a different way for legal argument.

But this valuable tool may be in danger from something other than their merits. In electronic publishing, you no longer control "pages" as such, where information can be placed in context and order of importance at the bottom of the page. Horowitz notes:

The footnote jousting could soon be moot, as the e-book may inadvertently be driving footnotes to extinction. The e-book hasn’t killed the book; instead, it’s killing the “page.” Today’s e-readers scroll text continuously, eliminating the single preformed page, along with any text defined by being on its bottom. A spokesman for the Kindle assured me that it is at the discretion of the publisher how to treat footnotes. Most are demoted to hyperlinked endnotes or, worst of all, unlinked endnotes that require scrolling through the e-reader to access. Few of these will be read, to be sure.

I experienced this very thing while trying to read "The Great Stagnation," an economist's take on the financial crisis, which only appeared in e-book form. There was gold in them thar notes, but it was dang hard to find and use.

And it's not just books. Lawyers beware. Our Supreme Court here in Texas now requires e-filing, and the judges are reading briefs almost exclusively on Kindles or ipads.Surely they are not alone among judges. Depending upon how those devices paginate and display your text, your footnote may be relegated from its intentional, secondary status to obscurity or annihilation.

Persuasive information that is never read might just as well not have been written at all.

If a tree falls in the forest . . . .

Like Horowitz, if the footnote dies, I will mourn that subversive breed of mice. If it dies because technology won't allow me to display the pages I have intentionally designed to convey information effectively, they will die because of something other than their merits. 

And that would be a pity.

*Note to Self: MUST HAVE THESE FOOTNOTE BOOKS!