Think Twice Before Using Footnotes in This Federal Court

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By Casey C. Sullivan, Esq. on September 06, 2016 11:58 AM

Are you a disciple of the footnote, always ready to drop a superscript 1 or 5 where a "see id., at 20372, 20379, 51924, 51951, 51958" could go? Think that in text citations destroy the flow of your writing and distract the reader? Well, you've got plenty of lawyers on your side, including the guru of legal writing and style, Bryan Garner.

But not everyone is a fan of the footnote. Judge James Bredar (D. Md.) recently threatened to toss a party's pleadings after their attorneys decided footnotes were the best place for citations.

Forget Aesthetics, Remember the Rules

Of course, Judge Bredar isn't just a hater of footnotes, he's also a stickler for rules. And those rules call for in-text citations. Hence his anger at the attorneys in a dispute over mutual fund investment advisory fees. As the Wall Street Journal Law Blog reports, those lawyers "were repeatedly submitting motions smothered with footnoted citations -- in one case 17 of them spread over four pages."

That, Judge Bredar warned, was not how things are done:

First, the parties' motion papers employed a method of citation of authorities that is not only incompatible with the rules but also a hindrance to the Court's consideration of the parties' respective arguments. For documents filed in this Court, the Local Rules neither permit nor require the citation of authorities in footnotes, as opposed to incorporating them into the text of documents. See The Bluebook: A Uniform System of Citation R. B1.1, at 3 (Columbia Law Review Ass'n et al. eds., 20th ed. 2015) ("In non-academic legal documents, such as briefs and opinions, citations generally appear within the text of the document immediately following the propositions they support. Footnotes should only be used in non-academic legal documents when permitted or required by local court rules."). Second, the former rule requiring attachment to motion papers of unpublished case opinions has been omitted from recent iterations of the Local Rules. A citation to either Westlaw or LEXIS suffices for unpublished opinions. Counsel should familiarize themselves with these rules. Future noncompliant filings will be stricken without prior notice.

We don't expect to see many footnotes in Judge Bredar's courtroom anytime soon.

Judge Bredar Kicks Off #Footnotegate

An interesting footnote, so to speak, is the fact that Judge Bredar's warning sparked a bit of a legal writing crisis online, sending the hashtag #legalwriting trending and giving rise to last week's #footnotegate.

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