• July 15, 2015
Fifty foot tattoos @ http://goo.gl/UVmY4y

“To Be, Rather Than To Seem…” A footnote from http://goo.gl/UVmY4y

This week’s Monday post drew attention to a footnote in a legal brief.

This got me thinking about footnotes. For those of you interested in trivia, the related Jeopardy answer is: “Footnote 4, Carolene Products.”

(The question: What is the most famous footnote in 20th century U.S. legal literature?)

(That footnote says, in part, “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments…” And this footnote became indelibly injected into the sinew of U.S. law in later decisions that applied “heightened scrutiny” to legislation that steps on the toes of a wide variety of constitutional prohibitions.)

As a literary form, as a “part of speech,” as the proverbial mouth-in-foot, if you will, footnotes are a pretty interesting sub-genre in legal writing (and elsewhere (David Foster Wallace, R.I.P.)(and maybe another post about nested parentheticals would be warranted some other day)(or maybe not)).

Unfortunately, I do not have the time to try to derive some kind of catalog or taxonomy of footnotes these days, but there are a few interesting attributes worth your consideration.

First, in both judicial opinions or in legal briefs, some percentage of footnotes (and maybe a significant percentage) are the work of more senior drafters, text reviewers rather than scribes — that is, not the law clerks or the associates but rather the judges themselves or the partners. As such, they can sometimes carry a great deal more importance than their status as “footnote” might suggest. They are text about text, subtext, ubertext, pro text and context.

Second, lay people may not be aware that legal ethics require lawyers to disclose law that HURTS their case. If a particular judicial decision is “authority in the controlling jurisdiction known to the lawyer…adverse to the position of the client and not disclosed by opposing counsel,” there is an ethical responsibility to disclose the decision. See, e.g., Minn. R. Prof. Conduct 3.3(a)(2).

I hate it when that happens.

That’s why we see footnotes from time to time that say something like: “But see Cruddy Decision v. Common Sense, __ N.W.2d __ (___)(Intelligent Justices, dissenting).” The naked cite is just one approach. Alternately, the lawyer in this uncomfortable bind must weigh whether to call such decisions “wrongly decided,” “distinguishable,” etc. or, from time to time, lawyers take the bull-sh*t by the horns and say straight out: “Your decision against my client is compelled by Cruddy Decision v. Common Sense so make us lose now and we’ll get on with the appeal…”

Third, footnotes can be occasions for either a stab at humor (risky) or succumbing to an overwhelming temptation to deviate from message for one reason or another (“Oh, and though it’s not really relevant to the argument in this brief, to be clear, opposing counsel’s statement about XYZ is entirely false. See Depo. page X.”).

Fourth, there’s the “brush-off.” This is a footnote that goes something like this, “In addition, Opposing Party argues XYZ. That is frankly so stupid, we’re not going to respond. See Doe v. Roe, __ F. Supp.2d __ (saying of the same argument in a similar case (holding that “that is frankly so stupid, the Court will not take the time to respond”).

Finally, some lawyers get quite riled up as to whether all case citations throughout the entire brief should ALL be relegated to footnotes (rather than incorporated into the text). Of this style dispute, I personally subscribe to a variant of an ancient adage, “De minimis, non curat Seth.” (The original: “De minimis, non curat lex,” means, “The law does not concern itself with trivial things.”)

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