My least favorite part of this week's Texas Lawyer was the uncalled-for derogatory statements made by Houston lawyer Martin Siegel in his article about my favorite literary tool, the footnote. Weblog readers don't know this because I haven't figured out yet how to get a weblog to do footnotes, but I just love the things - I represent them in the weblog as parentheticals and the stuff between the hyphens - sort of like this, actually (or would it be this?) - representing the little moments when I just can't hold (or let go of) a train of thought. (Or I can't can't help talking to myself while writing. Really? No.)
But Martin - just because he's a better writer than the rest of us - uses judgmental terms like "rare", "unimportant, "unnecessary," "poor writing" and the like which are just plain hurtful. Not all writing is organized and disciplined (as you read this, I sense you agreeing with me). Some writing doesn't have to have a coat and tie and for some of us, it's kind of always casual Friday at the keyboard, at least when we're not working. But there are a few points where Martin and I can agree:
- "Nor should footnotes serve as sanctuaries for personal attacks on the court or opposition. Lawyers occasionally seem to think that otherwise inappropriate invective will pass muster as long as it hides out in a footnote, but the court is unlikely to see it that way." Amen - I see this a lot of the time, and it's snarky. And that's not good. If you're going to call the other side ... well, something, first of all, don't do it. Second, don't do it. But if you absolutely want to go down that path, cowboy up and do it in the text. And then e-mail me and let me know how that worked out for you. But don't be snarky - if it's not a good idea in the text, it gets no better in a footnote.
- "[S]howing off needless or irrelevant erudition or research is not a wise use of footnotes. If the citations or legal discussion directly advance the argument, fine. But briefs are not law review articles, where footnotes are accepted vehicles to explore tangents or display breadth of scholarship." Well, in briefs I do agree. But weblogs (and my seminar papers) are different, obviously. I like to riff on moderately related topics, and heckle myself. If the writing is something you don't have to do, then why are you doing it if you're not having fun? Footnotes in unbuttoned writing can come across as asides or comments that serve as a way for the author to bounce an idea off of someone, or to let the text serve as straight man. The best example I've ever seen was in Dave Egger's A Heartbreaking Work of Staggering Genius, by the way - I can't recommend it highly enough to see the heights to which this device can be taken. Obviously this is not recommended in brief writing, although there are occasional exceptions - the footnote that can subtly discredit an inflated argument is one, although see bullet point 1 supra and use with extreme caution. You are not half as funny as you think you are, and the fraction gets smaller when folks in robes are doing the reading. Clever reads snarky about seven times out of ten (and makes no sense two of the other three).
- "Footnotes should not appear in typeface smaller than 12-point. Although Texas Rule of Appellate Procedure 9.4(e) allows use of 10-point type, it is too small for comfortable reading." I agree. It's just too damaging to the utility of a carefully crafted (I assume) footnote to make it 10 point - it is pushing the limits on legibility, especially as the target reader ages. If you're writing briefs for Teen Court, you can use 10 and 8 point all you want and they'll never even notice. But if you're writing for lawyers and especially judges - err on the side of legibility.
- "Finally, footnotes are not a handy way to circumvent the rules governing the length of briefs. If the case is in a court that regulates length through word limits, such as a federal court of appeals, this will be impossible, since Federal Rule of Appellate Procedure 32(a)(7) counts words in footnotes toward the limit. While the strategy may appear more promising in Texas appellate courts, which enforce length though page limits, it is still inadvisable. Judges notice and hate such things." (Emphasis mine).
This last point is a good one to remember for practitioners before page-limit-enforcing district courts, and Martin includes a terrific story I had not heard before. It seems that in Varda Inc. v. Insurance Co. of North America (1995), the Second Circuit in complaining about an over-footnoted brief recalled a case from 1596, in which an English judge actually jailed a lawyer for filing a 120-page pleading. The judge ordered the warden to cut a hole in the document, place it around the lawyer's neck, and "lead the said [pleader] bareheaded and barefaced round about Westminster Hall, whilst the Courts are sitting, and . . . show him at the Bar of every of the three Courts within the Hall."
Anyway, notwithstanding the above, the article really is good advice, and comes from a great source, so take it to heart. At least on the serious stuff.