On Love-Making, Regrets, and Footnotes in Appellate Briefs

By Derek Stikeleather

British playwright Noel Coward memorably observed that coming across a footnote is like going downstairs to answer the doorbell while making love. Although this quip has left my mind’s eye with an image it can’t un-see every time I consider dropping a footnote, it has not banished footnotes from my legal writing. But the vivid quote and a recent Maryland federal-court opinion have prompted me to consider more carefully when and when not to use footnotes.

All strong legal writers strive to master the rules of their craft: legal rules, procedural rules, court rules, grammatical rules, and even formatting rules. This painstaking and sometimes-obsessive attention to detail in the legal-writing community turned a few brisk comments from a Maryland federal judge about his preferred citation format into an ongoing national story. Specifically, in an August 23, 2016, memorandum opinion, Maryland’s U.S. District Judge James K. Bredar took issue with counsel’s decision to footnote their citations to authorities, rather than presenting them in the text after the relevant assertion.

The Court explained that “the Local Rules neither permit nor require” footnoted citations, and it quoted the Bluebook’s admonition against using such footnotes in legal briefs. Driving the point home, the normally mild-mannered and highly regarded jurist warned, “Counsel should familiarize themselves with these rules. Future noncompliant filings will be stricken without prior notice.”

For normal human beings, this was as close to a non-story as one could get; but the legal-writing world lit up over the opinion. First, Above the Law hailed the opinion as its “Benchslap of the Day,” then the Wall Street Journal’s Law Blog quickly followed suit, explaining that the story “has stirred much buzz among Twittersphere’s legalati.” A day later, the ABA Journal issued its own story about the opinion and its related coverage. The ABA article also presented a thumbnail sketch of the leading proponents of footnoted citations (e.g., Bryan Garner) versus those who favor embedded legal citations (e.g., Judge Richard Posner and the late Justice Scalia). Less than a week later, Strategist hyperbolically credited the opinion with sparking a “bit of a legal writing crisis online” and referred to the brewing controversy as “#footnotegate.” Even revisionists weighed in on the story as another blogger published a piece titled “Reconsidering the Great Footnote Reprimand of 2016,” astutely observing that the District of Maryland’s Local Rules do not incorporate—nor even mention—the Bluebook and questioning whether counsel had been “slapped” for breaking a nonexistent rule.

For appellate practitioners looking to assiduously follow the correct formatting rule, the unresolved debate about whether and how to footnote citations was a bit unsettling. Neither the Federal Rules of Appellate Procedure nor the Fourth Circuit’s Local Rules instruct practitioners on what should be in footnotes. In his book, “The Winning Brief,” Bryan Garner makes the compelling case for footnoted citations as helping to create a more efficient, coherent, and persuasive piece of writing. He also instructs writers to abstain from substantive textual footnotes.

Others argue quite reasonably that the persuasiveness of legal writing turns on the authorities cited rather than any legal proposition’s abstract reasonableness. They argue that requiring the reader to bounce up and down on the page to check the authorities is far more disruptive (even if less infuriating than interrupting love-making to answer the doorbell). For my part, I have resolved the tension with the informal rule that I will embed my citations in trial courts (especially Judge Bredar’s court) but footnote my citations in appellate courts (but not Judge Posner’s court). Of course, whenever a practitioner has the benefit of knowing a judge’s preference, follow the preference.

Just when I thought that “footnotegate” had finally run its course, something remarkable happened late last week; Judge Bredar amended his infamous “benchslap” opinion, issuing an October 28 supplemental memorandum opinion that replaces the paragraph that had so inflamed the “Twittersphere’s legalati” with a more restrained and conciliatory paragraph. Judge Bredar explained the reasoning for the change:

The relevant portion of the Court’s unpublished Memorandum and Order (ECF No. 42) was inartfully drafted, and it could be read to hold that the Local Rules forbid the citation of authorities in footnotes. They do not. Further, while the Bluebook certainly sets out many “rules,” those provisions are not incorporated into this Court’s Local Rules. Nonetheless, the undersigned endorses the specific convention outlined in The Bluebook in Rule B1.1 regarding citations in footnotes.

He explained why textual citations were so valuable adding that “Trial courts in particular must focus on both the proposition and the authority before ascribing weight to an argument. This process is hindered when the authority is tucked below in a footnote rather than placed front and center in the text.”

Having done all that was needed to correct the missteps in the prior opinion and put the issue to rest once and for all, Judge Bredar—to his great credit—graciously added two more sentences: “Finally, the Court regrets the last sentence of the paragraph that is now deleted via this amendment and supplement. That sentence was intemperate.”

Although this formatting dust-up now appears to have ended amicably, this unusual episode has not left Maryland appellate practitioners with a bright-line rule on footnoting citations. The relevant rules are silent on the issue and the competing Garner and Posner camps both make compelling points; practitioners would be well served to read each author’s analysis. My compromise position of footnoting citations only in appellate courts is buoyed slightly by Judge Bredar’s emphasis on text citations for “Trial courts in particular.” But one cannot reasonably construe Judge Bredar’s supplement as endorsing footnoted citations in appellate courts. The only strong recommendation I have is to learn all you can about an individual judge’s preferences and follow those if possible. This entire episode shows that something as seemingly insignificant as the use of footnotes can stir surprisingly strong reactions in the reader.

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