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What Is Excessive Footnoting?

By George Khoury, Esq. on August 01, 2017 | Last updated on March 21, 2019

A recent sua sponte striking of a motion is making headlines over the rationale provided from the bench: excessive footnoting. Although footnotes aren't really a good persuasive writing technique (why are you trying to distract your readers?), pleadings all too often contain them, and courts, not trying to be the arbiters of style, allow them.

But now you maybe asking: What exactly constitutes excessive footnoting?

How Not to Footnote

The motion to dismiss the Federal District Court for Washington, D.C. received from the Office of the Comptroller of Currency, in a case filed against it by the Conference of Bank Supervisors, provides an example of how not to footnote. The court found the pleading to violate the vague local rule which only states that footnotes "should not be excessive."

In their moving papers, the OCC had nearly 50 footnotes taking up 300 precious lines. The court, believing this to be an attempt to skirt page limit rules, struck the motion, and ordered the OCC to re-file within a few days, limiting the use of footnotes to no more than 10, and no more than 50 lines of text.

Court Rules Aren't Meant to Be Broken, Only Tested

In creative writing, it has been long established that authors who know the rules can break the rules. In legal writing, breaking the rules is an invitation for disaster, and potentially even sanctions. However, as the district court case above illustrates, rules are sometimes hard to interpret.

While the order striking the motion limited the use to 10 total footnotes, and further limited those to only 50 total lines of text, this does not necessarily establish a bright line rule about what is excessive footnoting, though it does provide guidance on what's to be considered not excessive. If you plan to use more than 10 footnotes, or your footnotes take up more than 50 lines, read your local rules, as well as your judge's general orders, standing orders, and any other document that might provide you with guidance on best practices for your judge.

Aren't Footnotes Good for Readability?

It's not even a question about whether it is easier to read a pleading that is footnoted versus one with inline citations. Footnotes win the readability battle every single time. In a court's order, footnotes can be excellent as orders are intended for not just attorneys, but also the parties and public, and thus additional context and content can be necessary, while being superfluous substantively.

But, in a pleading, that's one of those times where readability has to take a back seat. Because local rules tend to require all citations be made inline, footnotes are generally only for adding content or context. However, your pleading shouldn't need footnoted content, nor context. If it was not important enough content to put in the text, it probably shouldn't be in the pleading at all. If you need it to provide additional context, you've likely failed to provide the appropriate context in the main text. Footnotes are just lazy when it comes to pleadings. It shows that neither the time, nor effort, was made to incorporate the proper content or context.

Lastly, a final caution: Using footnotes runs the risk of important information not being read or considered at all. As readers skip over the footnote to continue reading, they may never return to it. Footnote at your own risk.

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