April 30, 2012

Justice Liu eschews footnotes

In the last week, Justice Goodwin Liu issued his first majority opinions for the Court in Dicon Fiberoptics, Inc. v. Franchise Tax Board and Kirby v. Immoos Fire Protection, Inc. The sample size is rather small to venture any firm predictions about Justice Liu’s jurisprudence. But the sample size isn’t too small to comment on matters of style. And we couldn’t help but notice one very reader-friendly feature of Justice Liu’s early opinions—the complete absence of footnotes.

With apologies to Bryan Garner, footnotes have become distractingly common in judicial opinions. (Lawyers are no less blameworthy—many lard their briefs with footnotes.) Appellate judges employ footnotes to joust with colleagues in dissent, to report tangential matters that could often be ignored, and even to explain forthcoming citation conventions (a matter Justice Liu crisply addressed in the main text of the first page of the slip opinion in Kirby). Because footnotes are cumbersome to read, readers commonly respond by ignoring footnotes. (E.g., Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 160 [“We do not have to consider issues discussed only in a footnote”].) Justice Liu’s footnote-free opinions are a welcome reminder that the solution is to write without footnotes in the first place.

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