• Lawyers and Footnotes: A Love Story (and Cautionary Tale)
  • December 26, 2014
  • Law Firm: Preti Flaherty Beliveau Pachios LLP - Portland Office
  • Lawyers love using footnotes. Lawyers even love arguing about the use of footnotes. At their best, footnotes can explain or reinforce points made in the body of a brief;1 at their worst, footnotes degenerate into snarky attacks, usually targeting the opposition (whom you are ethically obligated to treat respectfully). The latter has, in my opinion, become disturbingly more common, though a majority of footnotes that I see fall in the middle of this spectrum, straddling the line between slightly helpful and mostly useless.

    Perhaps the love of footnotes is subconscious, arising from law school, where footnotes are a staple of scholarly writing, and where we learn about remarkable judicial footnotes which, over time, have led to important changes in the legal landscape. Or perhaps, more practically, lawyers are simply utilizing a mechanism to enhance the flow of legal writing (i.e., by removing string citations or tangential points from the body of the text) or remain within set page limits.

    Regardless of the source of this love of footnotes, litigators should be aware that in both Massachusetts federal and state courts, arguments made in a footnote can be deemed waived by the court. In the past few years, enforcement of this rule appears to occur more frequently (at least in published opinions), primarily by certain judges in Massachusetts federal court. As recently as one month ago, a federal court judge enforced this rule in a published opinion in a criminal case. See United States v. Bey, No. 13-10278-PBS (D. Mass. October 1, 2014) (“the government’s passing reference to the inevitable discovery doctrine is deemed waived”). However, not all Massachusetts judges agree that this rule should be enforced. In two cases decided at the end of September, Araujo v. UGL Unicco-Unicco Operations, No. 13-13225-GAO (D. Mass. September 30, 2014) and Tian v. Aspen Technology, Inc., No. 12-11793-GAO (D. Mass. September 30, 2014), a federal magistrate judge enforced this rule in her report and recommendation, and the federal district court judge adopted all of the magistrate judge’s conclusions in each case other than the waiver determination.

    So how should counsel account for this potential pitfall in their process for drafting legal briefs? One answer is to consciously consider the purpose of each footnote you think about using and the utility of that footnote to the reader. Ask yourself the following questions:

    • Why am I putting this information in the brief?
      • Does the additional citation (or parenthetical accompanying the citation) provide some additional support for the argument, or is the additional citation being included solely for the sake of including more citations?
      • Does the argument need multiple citations, or is it a simple or black-letter argument?
      • Does the reader need further explanation of a complex point, or conversely, more detail on a simple point, which was made in the body of the brief?
    • Why is this information not in the body of the brief?
    • Does this information further the argument and need to be in the brief at all?

    For example, I often use footnotes to concede certain arguments or hypotheticals. Including this conceding sentence or sentences in the body of the brief will often make the argument long-winded and conceal the argument’s main point. However, these are often important footnotes, as they define the limits of your argument and may eliminate questions by the reader. On most occasions, this type of footnote survives the cut and makes it into my briefs.

    Another answer is to carefully plan the brief, and allow sufficient time for thorough editing, which will most likely eliminate any tendency to use footnotes due to page limitation issues. Permission to exceed page limitations should be sought only when vital to your brief. Page limitations are there for a reason - the readers of these briefs (busy judges) do not want to read longer briefs unless it is absolutely necessary, and most well-edited briefs can comply with the page limitations. Further, knowledge that you have additional pages often leads to poor editing. Focusing on simple, clear legal writing is likely to result in a persuasive brief with meaningful footnotes, none of which contain arguments which could be waived.

    1 Using a footnote to quote Walter Sobchak (played by John Goodman) from The Big Lebowski obviously falls into the best uses category. Kinney v. Barnes, No.13-0043 (Tex. August 29, 2014) (footnote 5).