Whether footnotes in legal writing (whether briefs or opinions) are necessary and/or appropriate is a longstanding controversy. Opinions are mixed, and it is difficult to discern a consensus. Some say that footnotes are often necessary to define or explain a word or an idea. Others assert that footnotes are a distraction that serve to divert the attention of the reader in a way that is usually unnecessary. Then there is sometimes expressed a compromise position which is to put the footnotes at the end of the piece rather than on the page of the text.

Recently, we did a quick and unscientific survey of some published appellate decisions and, as expected, found some that were devoid of footnotes and others that set forth some on the pages where the main text appeared. One of the latter decisions was written by a highly respected judge and set forth 13 footnotes—three on each of two different pages, one on each of five pages, and two on one page. In this instance, we concluded that value of the opinion was clearly enhanced by the footnotes. And while it was necessary to glance down towards the bottom of the page where the footnote(s) appeared, that did not seem to impair the flow of the reading or disrupt the views expressed in the main text.