20 Nov Judge: Kill Those Footnotes!

I’m a big advocate of de-legalease-ing as much as we lawyers can. If a party to an agreement doesn’t really understand what they are signing, or an investor in a securities offering can’t digest what is in offering materials because the language is too complex, how can that be meaningful? Why so much is still in Latin I don’t understand (my late physician father’s favorite phrase was “per stirpes”). Many sometimes feel that lawyers, and doctors for that matter, want to have their own language to make them seem very important.

Footnotes also are attorneys’ fave. Hence U.S. District Judge Beth Labson Freeman in San Jose, CA decided she had enough when an attorney submitted what she called “copious (and clearly excessive) footnotes.” The ABA Journal reports that Judge Freeman’s standing orders were that footnotes “are to be used sparingly and citations to textual matter shall not be used in footnotes.” When a law firm filed a 25-page brief with 451 lines of single-spaced footnotes, she ordered them to re-file a brief with 25 pages and no footnotes. The law firm that filed it, which is in a suit against Google, apologized and said they hadn’t read the judge’s standing orders, and refiled.

There is no question that, at times, we have to get lawyerly with stuff. Contracting parties have to have a clear and thorough meeting of the minds. Court filings have to be persuasive and detailed. Wills and trusts have to have certain magic language. But we all should have a goal for things to be as clear and in as plain English as possible.