One of the greatest difficulties in creating good legal writing, particularly effective appellate brief writing, is taking voluminous and complex information and distilling it down to a handful of simple points. It is also one of its greatest delights. There are plenty of tools in a writer’s toolbox to achieve the ultimate goal of succinctness, one of which is use of footnotes.
As Bryan Garner puts it, footnotes are resources and stepping-stones for others who are interested in delving more deeply into a subject. (The Redbook, 2nd Ed., p. 135.) When used effectively, footnotes briefly and concisely establish the foundation on which a writer has built new ideas and qualified or replaced old ones. In simple terms, a footnote should be nothing more than a reference point.
Despite the intended purpose, writers are often lured into using footnotes to make substantive points. For example, one of the most famous (or infamous) footnotes in American constitutional law is footnote four of United States v. Carolene Products Company (1938) 304 U.S. 144, which today serves as the keystone for an entire body of case law dealing with the appropriate level of scrutiny courts should apply to specific legislative enactments. That particular footnote was anything but brief, containing 3 paragraphs, 484 words, and 18 case citations.
There is an inherent risk in misusing footnotes. For instance, though there is no explicit rule forbidding the use of footnotes to advance an argument, case law says otherwise. Take Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1260, fn. 10, where the Court of Appeal—in beautiful irony—explained in a footnote that they had declined to consider an alternative argument because it was raised in a footnote and contained no analysis or discussion. Appellate tit for tat?
Alexander cited California Rules of Court, rule 8.204(a)(1)(B), for the requirement that appellate briefs must state each point under a separate heading or subheading summarizing the point, and then support the point by argument and if possible, by citation of authority. If a party has a valid point to make, a footnote is not the appropriate place to make it.
Other courts agree. (See, e.g., Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 160 [“We do not have to consider issues discussed only in a footnote.”]; Roberts v. Lomanto (2003) 112 Cal.App.4th 1553, 1562 [assertions raised only in a footnote may be properly “disregard[ed]”].)
What it all boils down to is the universal rule that if a point is footnoted rather than raised in the main argument, it is most likely tangential and if not, probably not worthy of deliberate consideration. Accordingly, a court cannot be faulted for disregarding it.
To avoid the perils that lie with improperly using footnotes, brief writers should raise their arguments in the body of the text, and reserve their footnotes for their intended use. While another use can arguably include housekeeping footnotes as reminders of procedural developments, what most assuredly does not belong down below is substantive argument. And while there are exceptions to every rule, deployment of argument by way of footnote had better be, well, exceptional.