Wisconsin Supreme Court Justice (and later federal district court Judge) Myron Gordon once quipped that “[i]f judicial opinions had Blue Cross, they could go to the hospital and have their footnotes removed.” And Justice Stephen Breyer famously honored his mentor, Justice Arthur Goldberg, by recalling Goldberg’s “firm and fatherly advice not to clutter up my opinions with a lot of footnotes.”

Often, however, it seems these justices’ views lie in the minority. Courts commonly seed their opinions with footnotes to address a losing contention or a limitation of their own holding, to suggest a “what if” for the next case, or to flesh out what they consider a minor point. Or they use footnotes to address points of disagreement or dissention among the courts’ ranks. In extreme cases, a footnote can even take on a life of its own, either by becoming the whole point of an opinion or by serving as a provocative beginning that spawns a number of questions that future judges and lawyers are left to answer.

But the judiciary’s use of footnotes doesn’t mean practitioners should necessarily follow suit. On the contrary, there are some unpleasant pitfalls for the unwary footnote user. What follows is some quick and practical advice on how to avoid them.

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