by Justice William W. Bedsworth
I’ve been doing a lot of public speaking about writing of late. There aren’t many people who know a lot about legal writing and even fewer willing to get up in public and talk about it, so I have become what the French call a faute de mieux—something you adopt for lack of something better.
I’ve been lucky enough to have been adopted by lots of bar associations and legal groups over the years. Speaking engagements have gotten Kelly and me to places as diverse as London, England and Orange Beach, Alabama; Tulsa, Oklahoma and Maui, Hawaii; Seattle, Washington and Omaha, Nebraska. Had a great time, met lots of really nice people.1
And one topic that always comes up when I talk about writing is footnotes.2 I have no idea why this is.3 I’m really not a fanatic about footnotes. I can take them or leave them.4
There are people who feel strongly about footnotes. There are people who care about footnotes with a passion I reserve for my wife, my children, and the designated hitter rule.
My colleague Bill Rylaarsdam cares strongly about footnotes.5 He never uses them. Ever. Period.
The great federal circuit judge and law professor, Abner Mikva, hates footnotes. His position is, “If God had meant for us to use footnotes, He would have put our eyes in vertically.”
I think that’s a perfectly reasonable position. It’s not mine, and I’m unclear why Judge Mikva thinks God meant for us to use “sidenotes” and stash them in the margins, but it’s a perfectly reasonable position, and he’s entitled to it.
I’m personally a little reluctant to try to second-guess God’s anatomical decisions, although the oft-noted decision to put a waste canal through a recreational area seems a little strange. And the decision to give my gender one brain in the cranium and one in the recreational area has turned out to be problematic.
But mine not to reason why. I get frustrated when I try to figure out the Deity. Too much of what I see in the way of floods, tornados, earthquakes, and plagues seems to smite the wrong people. I think a few more penthouses and a few less trailer parks could use a good smiting.
And since too many “acts of God” seem to me to be perilously close to an abuse of discretion, I don’t try to figure out the Deity. I just try to stay out of Her way.
But Rylaarsdam and Mikva have staked out a pretty secure position, and I think it’s been adopted by the majority of legal authors not writing law review articles.6 I respect that position, even if I don’t agree with it.
I might be more inclined to agree with it if I were capable of linear thought. People who can think for a hundred yards in a straight line might not need footnotes. Sadly, I’m not one of those people.
I can stay on lead for long periods of time. I can read and read and read and never leave the sidewalk, never tug on the leash. But then a squirrel runs across the road, the golden retriever part of my brain kicks in, and I’m gone.
In my writing, the squirrels become footnotes. The squirrels are questions that occur to me about the point I’m writing on that I don’t think deserve textual discussion, but should be acknowledged.
Sometimes they’re points I want to make about a flaw in the party’s argument that I don’t think merits a lot of discussion. I want the parties to know we saw the problem—when I was a lawyer, I was reassured by that—but I don’t think it merits more than a quick note or maybe a tangential citation.
Other times they’re cases that make the same point as the one or two I’ve cited in the text. Discussing them would not advance the ball, would lengthen the opinion, and would unduly bolster the chainsaw industry that the paper demand of our official reporters already supports so well.
I have spent almost thirty years complaining that we publish too many cases. Not only is this the minority opinion, the response to it was to loosen the rules of publication a decade ago to encourage more published decisions. Apparently the Powers-That-Be did not inhabit the wilderness I was out crying in.
So the poor trial court judge now has a dozen published cases “on point” instead of three or four and has to try to sift through them during the ten-minute recess she called to sort out this objection.
This makes no sense to me. The law is a tool—like a pencil. It seems to me we’ve put so fine a point on this pencil that it’s bound to break every time we try to write with it. But that’s the system we’ve got. The least I can do is try to help that trial court judge by including a footnote that says, “It’s not just me. Here are a half-dozen other cases I think say the same thing. I don’t think you have to bother reading them.”
Those six cases don’t belong in the living room; they belong in a closet. Handy and retrievable, but not where people can trip over them. And a footnote is the closest thing I have to a closet. So that’s where I put them.
Another use for footnotes is quick reference to problems that didn’t come up in our case but might be expected to come up in similar cases. These footnotes say, “Despite the warning signs, we spent five minutes looking for a golf ball in that arroyo and never saw a snake. But we did see lots of small rodent bones, so if you hit your ball in there, you might want to take a five-iron with you when you go looking for it.”
That kind of warning is clearly not germane to our discussion of the proper play of that hole. If I try to put it into my text, I’m likely to confuse the reader about where we’re going or where we’ve been. If I phrase it inartfully, some later court might think the absence of small rodent bones would have changed the outcome of our case. But if I put it in a footnote, very few people will see it, fewer still will be misled by it, and the number of snakebite victims may decrease.
But by far my most important use of footnotes is to save me time. I write or edit about 100 cases a year. I sign another 200 a year. You subtract my sick time, my vacation days, and discount by what you perceive to be my mental acuity, and you quickly figure out I don’t have a lot of time for polishing.
Read this passage from Faulkner:
Oops. On second thought, do not read this passage.
I had originally included here a passage from “The Barn Burning,” a short story that illustrated Faulkner’s painstaking and detailed prose, his attention to detail, his consummate ability to paint with words.
But the Orange County Lawyer has learned that the Faulkner estate sues anybody who quotes Faulkner. They sued Sony Pictures for using nine words from a Faulkner novel in a Woody Allen movie and attributing them to Faulkner. So it wasn’t like they stole them or plagiarized them; they explicitly gave Faulkner credit.
But they got sued because the estate has lawyers who alleged that quoting Faulkner (who died in 1962) might cause confusion—might cause people to think Sony Pictures (founded in 1989) and dead Faulkner might have had a connection.
Nine words. Federal court.
That’s a column in itself, but right now I just want to make a point about footnotes. So if you have the nerve to risk hearing from the Faulkner estate’s lawyers about stealing his work by thinking about it, imagine a lovely Faulkner passage, a lengthy, carefully written word picture, and then move on to the next paragraph.
If you’re Faulkner, you have time to turn out passages like the one I did not quote here. When something occurs to you that would go well in a passage you wrote three weeks ago, you just spend a day re-writing that passage. Eventually you produce great prose, and they teach your stuff in colleges.
But if you’re Faulkner, you’re not a volume operation. You’ve got tons of time. You’ve only gotta turn out half a novel and a few short stories every year to guarantee that unhappy twenty-year-old English majors who thought they could read Absalom, Absalom in a day will be cursing your name for all eternity.
Me, I don’t have that kind of time. I’ve got eight more opinions to do this month. I don’t have time to rearrange two pages of text to fit something in.
So I use what I refer to as “taxpayers’ footnotes.” These are the ones that keep you, the taxpayer, from griping that, “We paid you $215,000 last year, gave you three killer smart lawyers to help you, and you only turned out twenty-five opinions??!! Who died and made you Antonin Scalia?”7
That’s why I use footnotes. They may seem inelegant or awkward to my more talented peers, but they assure that I spend more time thinking about subordinated debentures and less time thinking about subordinate clauses.
So there you have it: Bedsworth on Footnotes. Shortest Treatise Ever Written. Those of you looking for convincing authority have Rylaarsdam and Mikva. Those of you who just looked up and saw that your brief is due Thursday ... have me.
Just a little service I provide.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. Look for his third book, Lawyers, Gubs, and Monkeys, in November. He can be contacted at firstname.lastname@example.org.