In Praise of Footnotes

WDC Journal Edition: Fall 2005
By: Mary T. Wagner - Assistant District Attorney, Sheboygan County

Little did I know, when I set out to write my first appellate brief shortly after graduating from law school, that the path I chose to follow would cast me as something of an anarchist. An agent provocateur. Or at least a minor thorn in the side of the established world order.

My innocent transgression? In an effort to streamline my arguments and make the brief more readable, I used (gasp!) footnotes. Not exclusively, mind you, but a lot of them. More than half of my citations, after their first mention, ended up at the bottom of the page. Nobody complained.

Since then it’s been brought to my attention—regularly—that when it comes to legal brief writing, footnotes are officially pretty well taboo. Underappreciated. Discouraged and disdained and denigrated.

I have yet to understand why. From where I sit, the traditional method of “in-text referencing” is visually distracting, an affront to grammar and the grace of plain language, and a built-in impediment to getting quickly to the meat of an argument. Not to mention an intellectual distraction, and an invitation to pass all the analytical heavy lifting from the writer—who rightfully ought to own it, or at least a substantial version of it—to the reader.

I come by my prejudices honestly. I first learned to aim for clarity and brevity in writing working as a newspaper stringer while earning a journalism degree from Marquette University in the late 1970s. You think the Seventh Circuit Court of Appeals is a tough audience to please? Try the copy desk at the Milwaukee Sentinel after 10 p.m., with twenty minutes to deadline as you’re phoning your story in from the next county. It was a baptism by fire, pure and simple, and the lessons took with the force of a branding iron. Short sentences. Simple structure. Active voice. Put what’s most important up front where the reader will see it first.

A staff reporting position at the larger Milwaukee Journal followed after graduation, and a few years later, a lengthy and successful career as a freelance writer. In short, the ebb and flow of words were my life, my passion, my hobby, my bread and butter. Small wonder that after seventeen years of reading and writing both for enjoyment and for a living, I developed a splitting headache barely fifteen minutes after I sat down as a brand new law student and started reading cases for Torts.

The surprises kept coming. Surveyed regarding our goals as students in my first legal writing class, I naively responded that I hoped to learn to “write in legalese.” (Here would be a good place to confess that my entire understanding of the legal profession up to that point had been gleaned from watching Perry Mason reruns and “L.A. Law.”) My teacher nearly recoiled in horror. “Oh no,” he explained, shaking his head. “The emphasis these days is to get away from legalese, and to have you write in plain English.” That was a comforting piece of information. But I still failed to grasp how interrupting nearly every sentence of argument in a brief with a case citation (underlined to make it “stand out” for emphasis, and then followed by an unwieldy alphabet soup of numbers and letters and dates and abbreviations taking up a line or more of type), pays even lip service to that worthy goal.

My first beef with in-text referencing is the simplest and most knee-jerk—I dislike the visual distraction. Having to skip over a line or two of citations every other sentence in order to follow the narrative flow of an argument just makes for a good deal of eye strain. Not to mention teeth grinding. I’m sorry, there is no way to square the concept of “plain English”—or good writing—with a string cite. It’s more like a crime of violence against a language which, used artfully, gave us Pride and Prejudice and A Farewell to Arms.

The second reason I shy away from in-text citation is that it presents such a rich and tantalizing opportunity to get side-tracked. At each citation between sentences or theories, my gut instinct has been to stop what I’m doing and check to see whether the case just cited actually means what the guy on the other side says it does. Or hopes it does. There are few cases of such landmark importance that their mention evokes universal recognition and agreement as to what principles they stand for. Miranda, for example. Brown v. Board of Education. Terry v. Ohio. The jury is still out on what Crawford really means about the Confrontation Clause. The list gets pretty short after that. And everything else is fodder for debate by an endless supply of gladiators in pinstripes itching to draw first blood.

As lawyers, we have a naturally inquisitive and argumentative bent. We could argue the merits of riboflavin in our breakfast cereal for fun to start the day. We split hairs for a living. Dangle a citation in front of us, and we’re off like a terrier chasing a rabbit. Is the critical language being cited “dicta” or “holding”? Can’t distinguish the case on the basis of the controlling case law? See whether the statute has changed since then. If the law is still the same, can the facts be distinguished? If the facts are similar, is there an emerging public policy concern that should be raised? And what does the dissent have to say? Engaging in that much serial hair-splitting right out of the gate can be counterproductive as well as exhausting. After three or four or five of these mental excursions, branching off from the text of the argument to delve into whatever case has been cited to support it, I’m usually no closer to grasping the crux of the other guy’s argument than I was when I started. Only more thoroughly distracted.

Which brings me to my most deeply felt reason for advocating a change in style, moving most of the citations to the bottom of the page. And that is that too many legal briefs and arguments are crafted without structure, without form, without coherence, without a plan. Instead of a cohesive framework of ideas and a narrative flow leading to a strong, supportable conclusion, they rely on the visual audacity of single cases and a smokescreen of string cites to hold together a collection of hopeful assertions like a randomly assembled strand of Tinkertoys. A Rube Goldberg device meant to dazzle more by the sheer volume of twists and turns and clever dodges than by what it ultimately delivers. Unfortunately, this approach does little to really answer the two key questions that should be front and center in any legal discussion: one, what is the point here; and two, why, based on principle, logic and precedent, should this party prevail?

I truly believe that the act of taking most of the citations out of the text of a brief and reassigning them as nearby footnotes forces the pursuit of coherence and logical progression on a writer in ways that a year of legal writing classes and exercises can’t possibly match. The current system of in-text referencing makes it entirely too easy and too tempting for a writer to throw together a brief that looks absolutely authoritative from a distance…but by the end leaves the reader still searching for a central theme, a fundamental good idea. Searching, too often, for a plain language explanation of why all the cases which have been cited with such vigor and in such impressive order actually matter to the outcome.

The best writing, the most persuasive writing—whether legal or otherwise—has always been seamless, uninterrupted. It keeps its reader spellbound, pulled along on a tide of discovery, of belief, of passion and certainty.

Take, for example, the opening lines of the Declaration of Independence:

WHEN in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.

WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness…

These are words of unquestioned power, a statement of purpose meant to both persuade and inspire. Their force ignited the birth of a nation, and still resonates more than two centuries later. Imagine them, however, in the format of a modern legal brief, cited in-text to within an inch of the Framers’ lives, heart-felt eloquence reduced to a dry listing of grievances and demands supported by prior documentation. The visual imagery is disheartening, and the impact inescapably diminished.

The practice of law, which reaches into virtually every corner of society and impacts us all every day we draw breath, deserves better.

Miranda v. Arizona , 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966).

Brown v. Board of Education, 347 U.S. 483, 98 L.Ed. 873, 74 S.Ct. 686 (1954).

Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868 (1968).

Crawford v. Washington, 541 U.S. 36, 158 L.Ed. 2d 177, 124 S.Ct. 1354 (2004).

U.S. Const. Amend. 6