Some Notes About Footnotes In Appellate Briefs
Footnotes are a subject about which there are differing and, in some instances, surprisingly strong views. A militant anti-footnote jurist was Justice Robert Clifford of the Supreme Court of New Jersey, who sought to abolish footnotes from the Court’s opinions. He once wrote (quoting John Barrymore) that having to read footnotes was “like having to run downstairs to answer the doorbell during the first night of the honeymoon.” In re Opinion 662 of the Advisory Committee on Professional Ethics,
133 N.J. 22, 32 (1993) (Clifford, J., concurring).
At the other extreme are judges, such as retired United States District Court Judge Shira Scheindlin of the Southern District of New York, who put every last one of their citations into footnotes, resulting in opinions that contain literally hundreds of footnotes. In between are judges of the Seventh Circuit Court of Appeals, who eschew footnotes but place otherwise footnote-worthy substantive asides in parentheticals in the body of their opinions.
Whatever one’s personal views about footnotes, there are rules about footnotes in appellate briefs to which “attention must be paid,” as one of the characters created by Arthur Miller (the playwright, not the law professor) famously said in “Death of a Salesman.” For example, New Jersey’s Appellate Division stated in Almog v. Israel Travel Advisory Service
, 298 N.J. Super. 145, 155 (App. Div. 1997). There, Judge Pressler (she of the Pressler & Verniero annotated New Jersey rulebook) observed that Rule 2:6-2(a)(5) requires that legal arguments be made under “appropriate point headings,” and that placing substantive arguments in footnotes violates that Rule, “putting the responding party at a disadvantage that implicates due process concerns.”
The Third Circuit Court of Appeals has similarly said that “arguments raised in passing (such as, in a footnote), but not squarely argued, are considered waived.” John Wyeth & Bro. Ltd. v. CIGNA Intern. Corp.,
119 F.3d 1070, 1076 n.6 (3d Cir. 1997). (Overlook the irony that a statement about not raising arguments in footnotes appeared, at least in that case, which has been cited frequently since, only in a footnote). So whether in a state or a federal appeal, the rule is the same: any argument worth making is worth making in the text at sufficient length, not solely in a footnote.
The Third Circuit’s rules expressly frown on footnotes, though not to the degree that Justice Clifford did. Local Appellate Rule 32.2(a) states that “excessive footnotes in briefs are discouraged.” In Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc.,
63 F.3d 262, 285 n.31 (3d Cir. 1995), the Third Circuit cited that rule in the context of a ruling that costs on appeal would be shared between the parties where the Third Circuit’s decision was a partial win for each side. Judge (now Justice) Alito wrote that “even if Cooper had prevailed, we might not have awarded it costs because of the excessiveness of the footnotes in its otherwise helpful and persuasive brief…. The effect was not only to make the brief more difficult to read, but it meant that many pages contained more than the 27 lines of double-spaced text permissible under LAR 32.1(c).” This was a warning to other parties not to abuse footnotes.
Judge Pressler in Almog
condemned another tactic that parties might use to defeat the page limits contained in New Jersey’s appellate rules: using a smaller font for footnotes than Rule 2:6-10 requires for text. “If a party intends the court to read the footnotes, they will have to be printed in conformance with the rule.” 299 N.J. Super. at 155-56.
The Third Circuit now expresses briefing limits in terms of pages or words. If a word limit is applicable, footnote font size cannot be used to manipulate the briefing in that court. Still, in Local Appellate Rule 32(a)(2), the Third Circuit requires that footnotes be the same size as text.
If footnotes are worth including, they are worth including correctly. Taking note of footnote requirements can only benefit counsel and their clients.